Winning a case in court is only the beginning of the process for the collection of money that is owed to a plaintiff by the debtor. Unfortunately, in most cases, the debtor does not normally pay up once the plaintiff has won. Therefore, it is up to the plaintiff to pursue the legal avenues available to them.
First and foremost, the judgment the plaintiff obtained is good for 10 years from the date of judgment, renewable for another 10 years, if obtained in a General District Court, and for 20 years from the date of judgment, renewable for another 20 years, if obtained in a Circuit Court. This is the time in which the plaintiff can pursue the collection of the debt.
One often-used process is called the Writ of Fieri Facias. This is usually referred to as either a Writ of FiFa or Levy. This process authorizes the Sheriff to go to the debtor's residence and inventory and/or seize property for collection of the debt. The Writ of Fieri Facias is good for ninety (90) days from the date of issuance. This means the Sheriff has ninety (90) days in which to execute the process. It does not usually take ninety (90) days to execute, but some cases are more difficult than others and will take longer.
- Anyone may bid at a Sheriff's sale, except employees and relatives of employees of any constitutional officer in the Commonwealth of Virginia. This includes the plaintiff and defendant.
- The sale will take place where the property is stored. This could be a storage facility, the residence of the defendant, or on the courthouse steps. The location will be clearly advertised.
- The terms of the sale will vary from sale to sale. Therefore, it is important the bidder listens carefully when the terms of the sale are announced. The following are some of the consistent terms:
- Everything is sold "As Is". No warranties apply.
- Everything is sold subject to any and all liens.
- Everything is sold to the highest bidder for cash.
- The property must be removed at the conclusion of the sale. Therefore, if moving arrangements need to be made, the bidder should give this some thought before bidding.
- Any person who bids on the property but fails to pay at the conclusion of the sale is liable for any difference if the property re-sales for a lower amount at another auction.
- All bids must be reasonable and the Deputy or Sheriff reserves the right to refuse a bid, which is considered unreasonable.
- There are many reasons a Sheriff's sale may be canceled or postponed. Bidders would be wise to call our office at 540-389-0978 on the morning of the scheduled sale to inquire if it has been canceled.
- There are many steps to the levy process. This is not a fast remedy for collecting debt. However, it certainly can be effective, and in some cases, swift. The key is to provide the Sheriff with as much information as possible about the defendant and call the office when you have questions. Please be reminded that the Sheriff cannot give legal advice but will guide a person through the policies and process.
In as much as it is the Sheriff's duty to protect both the plaintiff and defendant, he/she has the right to refuse a bid if it is determined to be unreasonable. The Sheriff cannot tell bidders what is considered to be a reasonable bid. This is to encourage bidders to bid what they believe to be a fair market value of the property offered for sale.
- Once received by the Sheriff, the Writ is time/date stamped and entered into the computer. It is then given to the Deputy who serves the area where the defendant lives.
- The Deputy is to determine the approximate value of the property to be levied upon.
- After the Deputy inventories the property, a copy of the inventory list and a Bond letter are sent to the plaintiff.
- The Bond letter informs the plaintiff how much of an indemnity bond will be needed prior to going to sale if one has not already been posted. The bond indemnifies the Sheriff against any suit brought by third parties, should we levy upon property in the debtor's possession but owned by another. This bond must be posted prior to the sale. If the bond requested is not posted, the sale will be postponed. Surety for the bond can be obtained through an insurance company or a bondsman. Arrangements need to be coordinated with our office so we can properly complete the bond.
- Once the plaintiff completes the bond requirements, a Notice of Sale is prepared by the Sheriff's Office and mailed to both the Plaintiff and defendant. By law, the Sheriff must give at least ten day's notice before any auction takes place.
- Advertising of the sale is placed in a minimum of three locations within the City of Salem. One is placed near or at the place where the sale is to be held. The signs are the property of the Sheriff's Office and cannot be removed without our permission. The Sheriff's Sales will also be advertised on the Sheriff's Office website.
- The plaintiff may advertise in the newspaper, but the advertisement must be approved by the Sheriff prior to placing the ad. This will ensure all legal requirements are met. The cost of advertising in the newspaper is the plaintiff's expense; however, any cost incurred to recover the debt may be added. The plaintiff would be wise to keep all receipts related to the collection of the debt.
- If the plaintiff refuses to provide a bond when asked, the Sheriff is then under no obligation to proceed and can return the Writ back to the court not executed.
- Normally, the Deputy or Sheriff performs the auction. However, if the plaintiff wants to hire an auctioneer, this is acceptable. The auctioneer must be approved by the Sheriff and is done so at the expense of the plaintiff.
- Both the plaintiff and defendant have rights and defenses and should seek the advice of an attorney if in doubt as to how to proceed.