© LaMar Jost
Prohibited Remedies for an Unsecured Creditor: among the remedies prohibited tounsecured is:1.
Self Help Seizure
: of the debtor’s property, which in most cases will result in the tort of conversion.a. Conversion is the wrongful exercise of dominion and control over another’sproperty in denial with his rights.2.
the creditor that wrongfully takes possession of property of the debtor may becharged with larceny;3.
Wrongful Collection Practices:
if the creditor demands payment from the debtor in anunreasonable manner, it may incur liability for wrongful collection practices.B.
Remedies Available: the creditor is entitled to coerce payment of the debt only through judicial processes specified by the state (which are fundamentally the same in all states). Undermost state law, an unsecured creditor who wishes to enforce its rights following a breach mustproceed through judicial action.1. The unsecured creditor first has to get a judgment against the creditor in court;2. to execute the judgment it must then must procure a writ of execution;3. then the sheriff will attempt to execute the writ by levying (getting the property) on theproperty of the debtor, if the property is not subject to an exemption statute.a. the unsecured creditor (and his lawyer) must be very specific in instructing theSheriff what property to obtain, which requires knowledge of what property thedebtor has unsecured.C.
Execution Procedure: a successful plaintiff who obtains a judgment against a defendantmay: (1) cause the personal property of the defendant/judgment debtor to be seized and sold;with (2) the proceeds applied to the judgment and costs by way of execution.1. To do this, plaintiff obtains a writ of execution, directing the sheriff to levy and make areturn within a statutory time limit (3-months) after the date of issuance.*[
Vitale v. Hotel California
Successive Levies under One Writ: further levies under one writ are authorized underthe same before the return day (physical return of original writ to clerk of court) if the initial levydoes not satisfy the judgment [
Vitale v. Hotel California
Physical Force in Making a Levy: an officer may force an entry into any enclosureexcept the dwelling house of the judgment creditor in order to levy on the debtor’s goods.F.
Writs of Garnishment: [another way to compel payment of a debt]: if a third party is inpossession of property of the debtor or woes money to the debtor, the creditor can cause thesheriff to serve a writ of garnishment on the third party.G.
Preference Payment: it is not fraudulent for a debtor to pay one of its creditors, even if the effect is to leave nothing for the others, so long as the debtor does not make payment for thepurpose of defrauding the others.