Need to Stay Execution of a Money Judgment? Beware if Writ of Execution Issued

  The enforcement of a money judgment may be stayed by the filing of a timely notice of appeal and posting sufficient undertaking. If the bond is posted by an admitted surety the bond must be in the sum of one and one-half times the amount of the judgment; otherwise, twice the amount. See, Code of Civil Procedure section 917.1(b).

iStock_000016195759XSmall  One of the effects of the stay which arises from the filing of a notice of appeal and posting sufficient undertaking is that existing execution liens are extinguished and property held by a levying officer subject to the lien shall be released to the debtor, subject to certain exceptions usually not applicable. See, Code of Civil Procedure sections 697.040 and 697.050.

  If a writ of execution has issued, however, the debtor should not rely solely on the levying officer fulfilling its duties to release property to the debtor. The reason for this is that the statutory scheme provides protection to the debtor only so long as the property is in the hands of the levying officer. If the property has been released to the creditor, even erroneously, the court has no authority to order the creditor to return it.

  What additional steps should a debtor take, other than filing notice of appeal and posting an appellate bond, when a writ of execution has issued? In order to preserve the status quo the debtor should also seek an order from the court recalling and/or quashing the writ of execution and releasing any existing execution liens, including an order that the levying officer release any levied property to the debtor. See, Adir International v. Superior Court (Fusion Industries).

  I consult with clients and accept cases involving appeals, including issues regarding perfection and stays pending appeal. For other types of cases I accept, please scroll my Home page and consult the My Practice page. If you are seeking a consult or representation, please give me a call at 818.971.9409. – Michael Daymude

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