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Unformatted text preview: 1) Unsecured Creditors i) Creditor- anyone owed a legal obligation reducable to $ obligation. ii) Unsecured Creditor- Unless granted by statute or creditor Ks w/ D for secured status. iii) Judgment Creditor- unsecured creditor that obtains a court judgment to establish D liability. Grant of judgment doesnt change unsecured status. 2) Compelling Payment a) Cannot use self-help i) tort of conversion- wrongful exercise of dominion and control over another P in denial of or inconsistent w/ his rights. Dont need to show wrongful intent. ii) Larceny iii) If C demands payment unreasonably = wrongful collection practices . b) Vitale : Sheriff gets writ of execution and order to levy upon all Ds PP and $ on 6/23/81. Levy denied cause bar only open at night, then bouncers denied, then court order to permit sheriff access, then only $700 in PP seized. C wants more levies but Sheriff argues only 1 levy per writ of execution. i) Get a default judgment ii) C obtains a writ of execution directing sheriff to levy upon PP after a judgment (D is judgment debtor) iii) Writ is returned= physical return of writ after execution (1) Once returned, sheriff cannot levy under that writ (2) Before return day, successive levies can be made if debt not satisfied by initial levy(ies) (a) Return by sheriff not until showing that attempting another levy would be fruitless. (b) If it is returned, C can get an alias writ = C can seek unlimited amount of pluries writs til judgment satisfied. iv) Sell at Sheriffs sale v) Sheriff must follow Cs reasonable instructions under a writ of execution. vi) Because no limit in # of executions that can be issued, no limit in # times sheriff has to levy until judgment satisfied- but practical limitations vii)Issue of levy ok at any hour- 10pm-2am here was not unreasonable. viii) Risk of violence- ct says its sheriffs job ix) Amercement- C sues sheriff for failure to execute against JD. Sheriff must deprive C of substantial benefit to which hes entitled under the writ. (1) Ct says only one levy in mo. = deprive of substl benefit = amercement x) Writ of garnishment- 3 rd party has Ds P, C can cause sheriff to require 3 rd P to pay JC. c) JC must use discovery to locate assets. Cant do fishing expeditions i) But JD may move assets or deed to someone else (fraudulent transfer laws) d) If P seized is of a 3 rd party may = conversion e) JD may skip state ($Js only good in state issued ) f) Until sheriff levy, JD can continue to use, exchange, or apply value of PP to other debts- no preference (preferential payment to defraud other Cs) 3) Exemption- state law prohibiting sheriff from seizing certain P under writ of execution. (p. 15) a) Homestead Exemption- some have $ limits b) Wages generally exempt (75% by fed and some states say all) II. Secured Creditors 1) Lien- charge against or interest in P to secure payment of a debt and performance of an obligation....
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This note was uploaded on 04/27/2010 for the course LAW 840 taught by Professor Tim during the Spring '10 term at University of Louisville.
- Spring '10