In a criminal case, an execution sale or a “writ of execution” is an order used to make the defendant pay a criminal fine or into a victim’s compensation fund.

Once a court issues a writ of execution, a local sheriff is usually charged with taking possession of the property owned by the defendant. The property can then be sold in a sheriff’s sale, and the money or a part of it will be used to pay the fine or be put into the fund.

When Is the Writ of Execution Applied?

A writ of execution is required whenever a defendant is instructed by the law to pay a fine, but the defendant will not do so willingly. A writ of execution authorizes the sheriff to collect property which will then be sold to pay the defendant’s criminal fines.

Any leftover profits are sometimes placed in a victim’s fund, which reimburses the injured party for their losses. Execution sales typically deal with the defendant’s personal property rather than their real property because real property sales can be much more complicated.

The debtor’s bank account can be accessed in some instances, but specific debtor funds may be off-limits to debt collectors even with a writ of execution. Some funds which may be off-limits are Social Security Income, IRA money, and unemployment income.

What Is a Judicial Sale, and How Is It Different From an Execution Sale?

Judicial sales are comparable to execution sales in that the defendant’s property is sold to collect fine payments. Both types of sales are open to the public, but the court, in certain circumstances, may allow private sales.

Under federal rules and in many states, the property sold in a judicial or execution sale must first be appraised unless the parties waive it. Nevertheless, there are some distinctions between judicial sales and execution sales.

These are the elements of an execution sale:

  • It is based on a writ issued by the clerk of the court, and it is not a court order;
  • The writ does not typically convey the specific property which is to be sold;
  • The court sets no conditions; and
  • Sales do not need to be approved by the court.

Nevertheless, judicial sales are like the following:

  • A judicial sale is a sale that is conducted under a court order, decree, or judgment by a court-appointed officer or fiduciary;
  • The sale is limited to specified real or personal property under specific conditions;
  • The sale must be approved by the court to be a final sale; and
  • The sale is usually only ordered after a final judgment.

There are exceptions when the property sold is perishable or likely to depreciate. So judicial sales involve more monitoring by the court, and in that sense, they are somewhat more formal.
There are also “special execution sales,” which are comparable to judicial sales in that they are issued through a court order and are required to be reported to a court for confirmation.

What Is a Foreclosure?

Foreclosure is when a lender, usually a bank, takes possession of a house when a borrower fails to make mortgage payments. Foreclosure may be devastating and can result in an individual or family losing their house. When a borrower buys a house and gets mortgage financing, they sign a contract stating that the home serves as collateral for the loan and may be repossessed if the borrower does not make payments as required.

After a borrower neglects a certain number of payments, the lender has the power to take the property from the borrower and sell it to retrieve the debt owed for the mortgage. In some circumstances, a lender will provide a grace period in which a payment can be made to avoid foreclosure proceedings.

Usually, however, this is a short period, often a couple of months. In many circumstances, a borrower is behind on their payments and has difficulty catching up due to late fees.

The two distinct types of foreclosures are non-judicial foreclosures and judicial foreclosures. A non-judicial foreclosure, or a foreclosure by power of sale, does not require court intervention. The lender, often a bank, can sell the mortgaged property directly to recover the money owed for the mortgage. This foreclosure option is only available in certain states.

On the other hand, judicial foreclosure is available in every state. It needs court intervention to sell the mortgaged property.

Which States Allow Foreclosure by Judicial Sale?

As noted above, all states permit foreclosure by judicial sale. In many states, a judicial sale is a required method for foreclosure.

What Is a Necessary Party to a Judicial Sale?

An essential element of any foreclosure process is ensuring that all necessary parties are included in the proceedings. The parties to a judicial sale may be split into necessary parties and proper parties.

Necessary parties are those parties that are needed to be included in the foreclosure process. Any party that has acquired an interest in the property after the initial mortgage was taken out is deemed a necessary party. The party that brings the foreclosure lawsuit must name these parties in the case, even if they do not consent.

Any party that acquired a lease, lien, or easement after the mortgage was executed is also considered a necessary party. For instance, Party A takes out an initial mortgage from Party B and a second mortgage from Party C. Party C receives their interest after the initial mortgage. They must be named in the suit if Party B files a foreclosure suit.

What Are Some of the Other Alternatives?

Other than execution and judicial sales, courts can also consider other alternatives. One way to obtain criminal fine payments is through garnishment, where the defendant’s payments are directly accessed from their wages or bank accounts.

The court then uses this cash directly for the fine payments. Another way is through a foreclosure sale. In foreclosure sales, a lien is placed on the defendant’s real property, such as their home, and the real property is then sold, and the proceeds go towards paying the criminal fine.

What Is a Deficiency Judgment?

A judicial foreclosure sale does not satisfy the mortgage amount in some cases. If that happens, the lender may file a deficiency judgment against the borrower to recover any back or missing payments. For instance, if a lender of a $15,000 mortgage only received $10,000 from the judicial sale proceeds, they may sue the borrower for the remaining $5,000 due for the mortgage.

Deficiency judgments are not allowed in every jurisdiction. Further, even if permitted, they may be adjusted according to fair value legislation. In those circumstances, the mortgage lender will only be allowed to recover an amount based on the fair value of the property at the time of the sale, not at the time the mortgage agreement was signed.

Should I Contact a Lawyer?

If you have any particular questions regarding execution sales or judicial sales and want to know your rights and obligations under the law, it would be beneficial to consult with a local criminal lawyer. Use LegalMatch to start resolving your legal issues regarding execution sales today.