intro to executions: (don’t) mock it up
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Intro to Executions: (Don’t) Mock it up
Alan Redd
Deputy Constable
Travis County Pct 5
© Copyright 2021. All rights reserved.
No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd, Suite 530, Austin, TX, 78744.
Resources• www.txcourts.gov
• Texas Rules of Civil Procedure (TRCP)
• www.statutes.capitol.texas.gov
• All statutes other than the Rules of Civil Procedure
• TJCTC website resources (www.tjctc.org)
• Texas Civil Process Field Guide
• Deskbooks – Practical Guide to Writs of Execution
• Legal Question Board
• Forms
• Blog – The Docket
• Webinar archive
Where to Start
What’s the first thing to do?
READ THE WRIT
then??READ THE WRIT AGAIN !
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Executions from Around the State
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Do the courts in your county all use a similar format or do they each have their own form for writs of execution?
1.Similar format2.Different format for each court
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The Demand Letter
• Judgment (Principal)
• Interest – Post and Prejudgment
• Attorney Fees and Interest if awarded
• Constable’s Fees and Commission if allowed
• County Cost – Court Cost
• Other Costs of Execution?
• Costs of Levy if incurred
How to Calculate Compound Interest
Judgment times 1+ interest rate X (times) itself the number of years.
J(1+r)n
$1000 at 10% interest for 5 years
1.1 x 1.1 x 1.1 x 1.1 x 1.1= 1.61051$1000 times 1.61051 = $1,610.51
Compound Formula:
More information and examples related to calculating interest can be found in Chapter 2 of the Practical Guide to Writs of Execution.
How to Calculate Simple Interest
Judgment X interest rate = ___ / 365 X # of Days
$1500.00 Principal, at 15% for 5 Years
$1500.00 X 15%=(.15) = 225÷ 365
X 1826 days =
Total Interest accrued = $1125.62
= $0.62/DAY
$0.62/DAY
More information and examples related to calculating interest can be found in Chapter 2 of the Practical Guide to Writs of Execution.
Simple Interest is calculated on executions by taking the judgment principal X (multiply) the interest rates stated ÷ (divided) by 365 X (multiply) number of days from judgment date.
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How to Calculate Interest Using Online Interest Calculators
• http://www.egalegal.com/compoundWindow.html
• http://www.judgmentcenter.com/Calculator.htm
Group Practice:Preparing an Execution Worksheet
Handouts
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Let’s Fill in the Worksheet
Completed Worksheet
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Levy of ExecutionTexas Rule of Civil Procedure 637
Officer must:
• Proceed without delay.
• Levy upon the non-exempt property of the defendant found within his county.
• Store the property.
• Sell the property
• Complete return and submit to court
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Can we levy on property outside our county?
1.Yes
2.No
3.Sometimes
Duties of Executing
Officer
Texas Rule of Civil
Procedure 638
RULE 636. INDORSEMENTS BY OFFICER
The officer receiving the execution shall indorse thereon the exact hour and day when he received it
Duties of Executing
Officer
Texas Rule of Civil
Procedure 637
RULE 637. LEVY OF EXECUTION
When an execution is delivered to an officer he shall proceed without delay to levy the same upon the property of the defendant found within his county not exempt from execution
Sell any property levied, either real or personal property, in accordance of the statutes and disperse proceeds in a timely manner
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Duties of Executing
Officer
Texas Rule of Civil
Procedure 654
RULE 654. RETURN OF EXECUTION
The levying officer shall make due return of the execution, in writing and signed by him officially stating concisely what such officer has done in pursuance of the requirements of the writ and of the law
Duties of Executing Officer Civil Practice & Remedies Code Section 34.071
An officer receiving a writ of execution does not have a duty to:
(1) search for property belonging to the debtor;
(2) determine whether property belongs to a debtor;
(3) determine whether property is exempt property;
(4) determine the priority of liens;
(5) make multiple levies for cash or multiple levies at the same location.
Locating Property to Levy
Defendant
Plaintiff’s Attorney
Court Documents
Appraisal District
County Clerk
Internet
Plaintiff
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Exempt Property
Texas Property Code Chapter 42
Personal Property Exemptions Texas Property Code Section 42.001(a)
For a Family: $100,000
For a Single Adult: $50,000
Look at your Exempt Property Benchcard from TJCTC
LevyTexas Rule of Civil Procedure 639
Levy on personal property is made by taking physical possession thereof.
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If the debtor cannot be found in the county or the debtor
fails to make a designation within a reasonable time after
the officer's request, the officer shall make the
designation.
Designation of Exempt PropertyTexas Property Code Section 42.003(a) Continued:
SPECIAL SITUATIONS?
WHAT HAVE YOU EXPERIENCED?
Levy on Stock Running at Large Texas Rule of Civil Procedure 640
Livestock running at large in a range, and which cannot be herded and penned without great inconvenience and expense, may be made by designating a reasonable estimate the number of animals and describing them by their marks and brands or either.
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LEVY ON SHARES OF STOCK
TEXAS RULE OF CIVIL PROCEDURE 641
The officer seizes and takes possession of the stock certificates.
Can You Seize Property with Liens?
1. Yes2. No
Levy on Goods Pledged or Mortgaged Texas Rule of Civil Procedure 643
Goods and chattels pledged, assigned or mortgaged as security for any debt or contract, may be levied upon and sold in execution against the person making the pledge, assignment or mortgage subject thereto.
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Community PropertyTexas Family Code Chapter 3
Sec. 3.002. COMMUNITY PROPERTY. Community property consists of the property, other than separate property, acquired by either spouse during marriage.
Child Support Lien Texas Property Code Section 42.005
Sections 42.001, 42.002 & 42.0021 (real property, personal property, retirement plans) of this code do not apply to a child support lien.
Practice an Execution Levy
• See Handouts
• Simple execution – what can you levy ?
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Timing of Execution & Return
Civil Practice & Remedies Code
Section 34.072(a)
•An officer receiving a writ of execution may return the writ after the first levy, or attempted levy, if the judgment creditor cannot designate any more executable property currently owned by the judgment debtor at the time of the first levy or first attempted levy.
How to Sell Levied Property
◦More information can be found at TJCTC live programs, or
◦TJCTC’s NEW Practical Guide to Writs of Execution found
on the TJCTC Deskbooks Page.
Completing the Return
•Tell a story•Who
•What
•Where
•When
•How
•And the resolution, sale completed or cancelled?
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Officer Safety – Prior To Levy
•Obtain Personal Information on defendant.•Plaintiff Should have some information about
defendant.•Criminal History of defendants;• Local Incident / Offense Reports for defendant and
physical location of writ.• S.A.R.S. Reporting System if available
Open Discussion
•Questions•Comments •Complaints•Other??
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