Litigation News
March 24, 2016
Publications
In this issue: Part II: I Have a Judgment, Now What?: Collecting and Enforcing a Money Judgment Through a Sheriff’s Sale I Pennsylvania Superior Court Awards Custody to Grandparents Despite Mother’s Object
Part II: I Have a Judgment, Now What?: Collecting and Enforcing a Money Judgment Through a Sheriff’s Sale
by Dana Chilson
You won your lawsuit, and now you want to be paid. But how do you get an unwilling defendant to cough up the cash? You have several options. Part I of this series discussed collecting a money judgment through the garnishment process. This article explains a second option: conducting a sheriff’s sale of the defendant’s real or personal property in order to be made whole.
A sheriff’s sale occurs when the sheriff seizes the defendant’s real or personal property and sells the property at a public sale. Once the property is sold, the proceeds may go toward satisfying your judgment. While a sheriff’s sale can be confusing, a basic understanding of the process can help you avoid pitfalls and obtain your money faster.
The sheriff’s sale process begins at the Prothonotary’s office. Upon a plaintiff’s request, the prothonotary will issue a writ of execution to direct the local sheriff to levy, i.e. itemize and hold, the defendant’s property. The Prothonotary then delivers the writ to the sheriff to enforce the levy.
At this point, the process differs according to whether the defendant’s real or personal property is to be seized and sold. When personal property is involved, the sheriff will do an inventory of the property and estimate the value of the defendant’s belongings. This seizure may or may not, however, result in the belongings being physically removed from the premises. Next, the sheriff will post handbills at least six days before the sale is held to notify both the defendant and the public of the sheriff’s sale. When the sale occurs, the public, including the plaintiff, has the opportunity to bid on the inventoried property.
The process for selling real property is bit more cumbersome. If a defendant owns real estate within the county where the judgment is indexed, a lien is automatically placed on that real estate when the judgment is entered. Before pursuing a sale of the real estate, however, the plaintiff must find, or at least attempt to find, every person who has an interest in the property. The plaintiff then signs an affidavit swearing that this duty is complete and delivers the affidavit to the sheriff, along with the writ of execution. Afterward, the sheriff serves the defendant and anyone else with an interest in the property with written notice of the impending sale. To notify the public of the sale, the sheriff posts handbills thirty days before the sale is to be held. The real property is then sold at a public sale, just as with personal property.
Five days after the sale of personal property and thirty days after the sale of real property, the sheriff proposes a payment plan to the plaintiff. If the plaintiff does not contest the payment plan within ten days, the sheriff will make payments as set forth in the schedule. Any fees that the plaintiff advanced to cover the costs of the sheriff’s sale are paid before the payment plan is implemented. If the sheriff’s sale did not produce sufficient funds to cover the judgment and the defendant has no more property to sell, then the plaintiff may pursue a deficiency judgment against the defendant.
Convening a sheriff’s sale can be a daunting task to go through alone. The Litigation Practice Group at McNees Wallace & Nurick is here to guide you. Through the sheriff’s sale process, we can help you enforce and finally collect your money judgment.
The author extends a special thanks to Amanda Gavin, a 2014 summer associate who assisted with the preparation of this article. Please note that this article assumes that the hypothetical judgment is the defendant’s only existing obligation and addresses neither the priority of judgments and liens nor methods by which a judgment debtor may obtain exemptions to a levy.
Pennsylvania Superior Court Awards Custody to Grandparents Despite Mother’s Object
Do grandparents have any rights to see their grandchildren? Consider the case K.T. v. L.S., 118 A.3d 1136 (Pa. Super. 2015), in which the Pennsylvania Superior Court awarded partial child custody to a set of grandparents despite a mother’s objection.
The two children in K.T. were born in September 2007 and March 2009. In December 2007, the older child and the children’s mother and father resided with the father’s parents, i.e. the paternal grandparents. A year later, the mother and father ended their relationship, and the mother moved out of the paternal grandparents’ residence. When the mother and father separated, they initially shared physical custody of the children. But that arrangement did not last. Eventually, the mother obtained primary custody of the children when she and the children—and the mother’s new husband—moved away from Pennsylvania.
Years later, the father died in a car accident. After the father’s death, the mother unilaterally decided that the paternal grandparents should have no contact with the children. Pushing back against the mother’s position, the paternal grandparents went to court, filing a petition for “partial physical custody” under the Pennsylvania Grandparent Statute.
The Pennsylvania Grandparent Statute is, among other statutes that provide standing to non-parents, a basis for grandparent custody rights. The statute provides grandparents with the right to seek partial physical custody under three circumstances:
(1) when the parent of a child is deceased;
(2) when the parents of a child have been separated for a
period of at least six months or have commenced and
continued a proceeding to dissolve their marriage; or
(3) when a child has, for a period of at least 12 consecutive
months, resided with the grandparent or great-
grandparent and is removed from the grandparent’s home
by the parents.
53 Pa. C.S. § 5325.
Under this statute, the paternal grandparents in K.T. were awarded partial physical custody for three weeks over the summer, two weekends each fall and spring, and four overnight periods during the children’s winter break from school. The Court also ordered Skype communication with the paternal grandparents each Sunday at 7:00 p.m.
In making its decision, the Superior Court stated that, although the law generally defers to the parental right of controlling access to one’s children, that deference yields when grandparents seek only limited, partial physical custody. Elaborating on this point, the Court acknowledged the valued relationship a grandchild may share with a grandparent:
[I]n the recent past, grandparents have assumed increased roles in their grandchildren’s lives and our cumulative experience demonstrates the many potential benefits of strong inter-generational ties.
K.T., 118 A.3d at 1160. The Court further explained that,
“[u]nless there [is] some compelling reason, we do not believe that a grandchild should be denied visitation to his grandparents.” Id. at 1161. In K.T. v. L.S., the Superior Court determined there was no compelling reason to deny the grandparents visitation rights. The grandparents’ rights prevailed.
Resolving custody issues can be trying and complex. The Family Law Practice Group at McNees Wallace & Nurick can help parents and grandparents protect their rights and navigate the custody process.
© 2016 McNees Wallace & Nurick LLC
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