The execution lien CPLR

The execution lien CPLR - Pre-Levy The execution lien CPLR...

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Pre-Levy The execution lien CPLR § 5202(a): The lien is created the moment that a judgment creditor serves an execution on the sheriff . A lien is the power of a creditor to sell whatever the debtor had at the moment the creditor's lien was created. Judicial lien gives the creditor not only the power of sale but also has the power to collect money from the debtor of the debtor (called account debtor ). CPLR § 5202(a)(1): Judgment debtor has power to give title free and clear of an execution lien to a transferee for a fair consideration . (This transfer must happen before the Levy) The transfer can be of debt or property The transfer of debt cannot be a guarantee because it is not considered “fair consideration” Bad faith donees and donors are allowed because there is no inquiry into “knowledge” CPLR § 6203, a lien is created when the order of attachment is delivered to the sheriff and a similar provision allows pre-levy tansfers. Attachment is prior to a money judgment This is a weaker lien that the execution lien A bad faith donee is not protected which is a distinction from execution liens Contradiction with UCC § 9-317(b) a secured party is subordinate to a person who becomes a lien creditor while the security interest is unperfected. A lien creditor includes execution, attachment, and levy. UCC triumphs over all other statutes. See pages 7-12 in Farce (VERY CONFUSING) and assignments page 15 If the JC’s Execution is filed then IRS gets a lien and perfects then the IRS wins. However, if the IRS gets a lien then JC files an Execution and then the IRS perfects, the JC wins. In Lerner v. United States , the court held that the execution lien was choate by virtue of delivery of the execution. This delivery was still good enough to beat an IRS lien even though there had never been a levy . A choate lien is one in which the identity of the lienor, the property subject to the lien and the amount of the lien are established. State Tax Commission sends a warrant to the sheriff of any county of the state, or to any officer or employee of the department, commanding him to levy upon and sell such person's real and personal property. The warrant itself is the equivalent of an execution
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For State Income Tax on Real Property once docketed, the warrant becomes the equivalent of a judgment For State Sales Tax and all personal property the warrant must be delivered to create a lien. The warrant, however, is not limited to a sixty-day life, as executions are
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This note was uploaded on 03/19/2008 for the course LAW 101 taught by Professor Mackey during the Fall '07 term at Ohio State.

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The execution lien CPLR - Pre-Levy The execution lien CPLR...

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