A Writ of Fieri Facias (the “Writ” or “Writ of Fi Fa”) is a written command issued by a Virginia court to a sheriff to obtain the amount of a money judgment out of the personal property of a judgment debtor. “Fieri Facias” means “you should cause (it) to be done,” and in modern parlance the Writ is also referred to as the “Writ of Execution.”
While the Writ itself specifically references tangible personal property, it also allows the judgment creditor to pursue the debtor’s intangible personal property – e.g., bank accounts, accounts receivable, bonds, notes, stock shares, copyrights, patents, franchises, trademarks, and legal causes of action. Obtaining the Writ is a prerequisite for many judgment-collection remedies, such as garnishments, debtor interrogatories, and court-ordered turnover of property and failure to obtain the Writ can render those remedies invalid. This article provides a brief overview of the Writ.
The Writ is issued by the clerk of the court that entered the judgment upon the request of the judgment creditor. Upon receipt of the Writ, the sheriff can “levy” on the judgment debtor’s tangible personal property by taking possession of it or otherwise exercising control over it. The sheriff’s levy creates a lien on the property in favor of the judgment creditor, and the lien can be satisfied through the sheriff’s sale of the property and the turnover of the sale proceeds (less costs of sale) to the creditor.
To sell the judgment debtor’s property, subject to the Writ-lien, the sheriff will require the creditor to post a bond. Sometimes creditors choose to not obtain a bond due to the related cost, but the Writ can nonetheless prove helpful to the creditor because the sheriff will often have conducted an inventory of the debtor’s assets as part of his levy and can also sometimes provide information as to the debtor’s financial condition. In short, any effort to collect a judgment through a sale of the judgment debtor’s tangible personal property depends on the court’s issuance of the Writ and the sheriff’s execution of the same.
Further, upon the sheriff’s receipt of the Writ, a lien in the creditor’s favor automatically attaches to the debtor’s intangible property held either by the debtor or by a third party for the debtor anywhere in Virginia. The lien on the intangible property becomes binding on the third party once he/she receives legal notice of the Writ. Once in place, the lien on intangible property lasts for one year from the original return date on the Writ. The Writ can be reissued upon the creditor’s request, thereby extending the life of the lien.
By virtue of the simple and inexpensive act of having the court issue the Writ and deliver it to a sheriff, the creditor creates a lien on important assets such as the debtor’s bank accounts and accounts receivable. If the creditor already knows who holds those assets – i.e., the bank that holds the debtor’s account(s), and the business or individual who owes the debtor money – the creditor can send legal notice of the lien to those parties and thereby tie up those assets and lay the basis for having them turned over to the creditor. If the creditor does not know who holds those assets, it can question the debtor at a debtor interrogatory proceeding to obtain that information.
Accordingly, the benefit of having the Writ issued and delivered to a sheriff can be great, especially compared to the modest cost involved. Experience has shown that while issuance of the Writ is supposed to happen automatically in connection with garnishment actions and debtor interrogatories, it simply does not always happen, with the result that the action is open to legal attack. Therefore, it is critical that the Bank or its counsel ensure that: (a) at the outset of efforts to collect a judgment the court issue the Writ and deliver it to a sheriff; and (b) the expiration date of the Writ be tracked and that the Writ be reissued by the court and delivered again to a sheriff before the one year expiration date.
This article is not an exhaustive review of the Writ, and it is not intended as advice for any particular situation. Any procedures or specific actions related to a Writ should be reviewed by the Bank’s counsel before they are initiated.