Facts: Judgment creditor (C) has money judgment against Debtor (D). D, in a prior divorce, was awarded a certain piece of real property. The real property, at the time of that divorce was not in D's name. There was never a deed transferring the property to D.

C has gotten a writ of execution on this particular piece of real property. In the meantime, C has had the title owner (from before D's prior divorce) of the property deed it to him. C is using the execution process to clean up the title.

The sheriff's deputy serving this writ is a little uneasy about it, given the fact that he is levying on a piece of property actually owned by C in order to collect a judgment debt owed to C.

My question is, can the sheriff (or me) look at the facts behind this writ, or does he simply have a duty to execute it, assuming it is properly (procedurally) issued. And at that point, is the squabble between C and D? I have noted in my research Civ. Prac. and Rem. Code sec. 34.065, which imposes civil liability on the sheriff for failure to levy.

Levying on the prior judgment right of D to obtain the property -- and then purchasing the judgment at public sale -- will clean up the title. It's ok to levy on a judgment, it's intangible property. Execution can be on tangible or intangible property. Any legal right can be sold unless there is an exception in the law making a property right non-transferrable. Can't usually levy on a right to receive child support, for example. A judgment (or part of a judgment) can be assigned, and it can be sold, so it can usually be executed. Unless there is a legal exception to levying on this type of judgment, that's what D owns so that is what should be levied on. Then, it is sold at public sale....and C will want to bid....

Another possibility -- a full or partial release of judgment between C and D in exchange for assigning the part of the prior judgment that gives D the right to obtain the property C now has.

Just my two cents.

[This message was edited by A. Diamond on 03-28-09 at .]

[This message was edited by A. Diamond on 03-28-09 at .]

[This message was edited by A. Diamond on 03-28-09 at .]

[This message was edited by A. Diamond on 03-28-09 at .]

Creditor may want to obtain a certified copy of the divorce decree, and have the certified copy recorded in the real property records. That puts the record title in D's name, then the writ process makes more sense. Having done some title work in the past, I would prefer to have the decree recorded to explain how title to the property was transferred to Debtor (assuming the decree actually has an adequate legal description of the property).

I got this question on Friday afternoon, and I appreciate the input. I was having trouble finding much with my research.

I should point out that C is represented by an attorney who does a lot of real estate work, and owns a title company here in town, so I guess he knows what he's doing. The deputy was a little concerned levying given the interesting facts.

Thanks again!