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67 Cards in this Set
- Front
- Back
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What do you have to do mechanic's lien?
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When contract made and work done to enhance PERSONAL property
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What are the two ways to create a mechanic's lien?
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1) OWNER's request to have property repaired
2) A request of non-owner in lawful possession, but only up to $800 |
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How does one enforce a mechanic's lien?
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1) Self help sale IF a) not paid within 10 days and b) value or property is $7,500 or less. Sale is by PUBLIC AUCTION.
2) Sheriff's Sale by petitioning proper court where property is located and notifying the debtor |
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What do you have to do to create a mechanic and materialmen's lien?
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1) Agree to perform labor or furnish materials for CONSTRUCTION, repair, removal, or any improvement of any BUILDING or permanent structure
2) PERFECT the interest |
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How does a general contractor perfect her interest as a mechanic and materialmen's lien?
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File a memorandum of a mechanic's lien in clerk's office within 90 days of completion of work.
Memorandum must include 1) Name of owners 2) Verified amount of claim 3) Intent to claim a lien 4) Description of the property |
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What does a subcontractor have to do to perfect her interest in a mechanic and materialmen's lien?
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Everything general contract + NOTICE to owner of amount/character of claim + notice to general contractor
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How can a subcontractor share general contractors lien?
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Provide notice of owner before she pays general contractor
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How do you enforce a mechanic and materialmen's lien?
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File a suit in equity within the later of
1) within 6 months from time memorandum of lien recorded 2) Within 60 days after work is completed or terminated |
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When does a mechanic's lien ATTACH presuming perfection occurs?
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Attaches at moment improvements commence and/or materials are furnished.
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What are the rules of priority of competing mechanic and materialmens liens?
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1) Subcontractor beats general contractor if it files own lien
2) Laborers of Subcontractor beats subcontractor 3) Manual labors have priority over those who provide material for the labor 30 days before performance of last laborer |
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Can you waive a mechanic and materialmen's lien?
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Yes, but general contractor can't waive subcontractors rights
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For what property can a mechanic and materialmen's lien not exist?
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1) Public building
2) Leased property if repairs ordered by lessee |
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What's the purpose of a pre-judgment lien?
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Create a CONTINGENT LIEN with priority date that relates back to attachment
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What are the grounds for getting a pre-judgment lien? (4)
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1) D is a non-resident of VA or foreign corporation
2) D has made/about to make a fraudulent conveyance 3) D has/is about to remove property from VA not in the ordinary course of business 4) D has or is about to CONCEAL property with intent to hinder/delay creditors |
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What is the process of convincing a court to issue a pre-judgment lien? (2)
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1) Sworn petition of attachment seeking a writ of attachment that states a) plaintiff's claim b) grounds for attachment, c) description of debtor's property
2) Post a proper bond |
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How does the court make a determination about whether to order a pre-judgment lien?
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Makes a EX PARTE determination that there is REASONABLE CAUSE to believe grounds are satisfied.
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How does a sheriff properly attach property (personal, real, intangible
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If D in possession
1) Serve copy of attachment 2) Seize the property If 3rd party or intangible property, only serve copy of attachment If real estate, serve person in POSSESSION of real estate with copy of attachment and file a RETURN which sufficiently describes the real estate |
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When is a pre-judgment lien enforceable against a Bona Fide Purchaser for value?
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When a memorandum of lis pendens or attachment is filed in clerk's office of Circuit Court where property located
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What happens to a pre-judgment lien after judgment?
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It is consummated and plaintiff can seek a judgment lien
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What is the duration of a Judgment Creditor?
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20 years after date of judgment can be extended for another 20 years by filing motion/suing on original judgment
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How do you domesticate a sister state court judgment?
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1) Creditor register judgment in office of clerk of court where judgment is sought to be enforced
2) Notify D of registration in writing |
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How does one get a judgment lien on real estate and what is its scope?
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1) Docket the judgment lien where debtor owns interest
2) Attaches to all the real estate in the city/county where judgment is docketed, including after acquired property |
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How is priority determined for judgment lien on real property?
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Determined by date of DOCKETING (renewal of judgment relates back to original judgment)
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What happens if a debtor sells the real property which has a judgment lien to a 3rd party?
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The judgment lien remains with the property, BUT
a) creditor must enforce lien within 10 years buyer records deed 2) Cannot extend lien 3) To enforce against purchaser, must file notice of lis pendens before expiration of the 10 year period |
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How does one enforce a judgment lien on real property?
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Creditors suit in equity where property located
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When will a commissioner hearing a creditors suit on real property, NOT sell the property?
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If rent/profits will pay debt in 5 years
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What are debtors NOT allowed to do in enforcement regarding a judgment lien involving real estate?
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1) If cannot pay in 5 years -- no way to stop sale
2) No right to force personal property sale first 3) No equity of redemption |
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What is required for a senior interest to remain after a sale for real estate?
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Must have been RECORDED
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How does one create a judgment lien on personal property? 3 steps
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1) Writ of Execution through a writ of fieri facias (Fi Fa)
2) Clerk issue writs of execution within 21 days after Fi Fa 3) Writ of Execution orders sheriff to find, seize, and sell debtor's property |
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When is a judgment lien on personal property created?
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When Sheriff properly levies property
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How does a sheriff properly levy personal property?
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1) Actually seizes property
2) Has property in her sight with power to seize AND lists property in return |
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How long does sheriff have to levy the property?
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90 days after Writ of Execution is delivered to Sheriff (Return Date)
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What is the scope of judgment lien on personal property?
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Personal property levied by the sheriff
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What happens to a subsequent purchaser of personal property subject to a judgment lien?
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LIEN REMAINS. First in time, first in right always govern
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How long does a judgment lien on personal property last?
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Time of levy until time sheriff could reasonably have sold
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How is a judgment lien created for intangible property?
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Writ of Execution delivered to sheriff
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What is the scope of a judgment lien on intangible property?
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ALL intangible property WITHIN the Commonwealth
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Does a BFP of a debtor's intangible property subject to a judgment lien take free the claim?
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Yes! As long as no notice
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What provides notice of a judgment lien on intangible property?
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Summons of garnishment
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What is the duration of a intangible judgment lien?
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1) Generally, One year from return date on writ of execution
2) If property is a debt due from a 3rd party, then one year from determination of amount due 3) Ceases when underlying judgment ends |
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How does one enforce a judgment lien on intangible property against a 3rd party?
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Obtain a writ of garnishment by seeking summons of garnishment from the clerk of court
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What does a summons of garnishment do?
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Summons all the party to court to determine if writ of execution will be issued
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Can a 3rd party subrogate debtor's defenses in a hearing from a summons of garnishment?
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YES!
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What do you call the 3rd party indebted to judgment debtor?
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Garnishee
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What kind of notice is required for a summons of garnishment?
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1)Garnishee must receive copy
2) Debtor must be served with copy |
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What is the scope of garnishment?
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1) Only intangible subject to the writ of execution
2) For the amount determinable with certainty |
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What property is not subject to garnishment? 3
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1) Negotiable instruments
2) Non-debtor's interest in joint back accounts 3) Bank accounts held in tenancy in its entirety |
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What are the exemptions from judgment liens? 5
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1) Homestead Exemption
2) Poor Debtor's Exemption 3) Lesser of 25% take-home or amount disposable earnings/week exceed 30 times federal minimum hourly wage 4) Personal Injury Exemption 5) Tenancy by the Entirety Property |
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Who is entitled to the homestead exemption?
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All Virginia residents
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How much is the homestead exemption?
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$5,000 + $500/family member
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What does the homestead exemption not apply to? (3)
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1) Purchase Money Mortgage or Security Interests in property claimed to be exempt
2) Spousal or child support obligations 3) Intentional Torts |
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Can you waive the homestead exemption?
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YES! But no 'blanket waivers'
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When must you file the homestead exemption
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BEFORE sale of property
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What is the method for claiming a homestead exemption
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1) File homestead deed where debtor resides for real property
2) For personal property file homestead deed where debtor lives |
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When does the homestead exemption extinguish?
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When debtor leaves the Commonwealth
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Who is entitled to Poor Debtor's Exemption?
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All Va Residents
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What can be claimed as a poor debtor's exemption? (6)
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1) Apparel of $1,000
2) Household furnishings up to $5,000 3) Tools of trade up to $10,000 (but not against perfected Art. 9 security interest) 4) Motor Vehicle up to $2,000 (Not against Art. 9 perfect interets) 5) Sentimental items 6) Burial Property up to $5,000 |
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What is NOT covered by personal injury exemption?
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Claims from creditors who rendered the injured debtor medical assistance
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What is a fraudulent conveyance?
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Debtor transfers property to avoid creditor's levy
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What creates a presumption of a fraudulent conveyance?
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1) Transfer b/w husband and wife
2) Interfamial transfers 3) Renunication of a gift under a will by a debtor |
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What cannot be a fraudulent conveyance?
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When a BFP who pays fair value without knowledge or notice of fraudulent intent
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How does a creditor set aside Fraudulent Conveyance?
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Motion in equity to set aside transfer as fraudulent
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What is a voluntary conveyance?
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Debtor transfers for less than FMV either AFTER insolvency or transfer makes debtor insolvent
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Who can avoid/set aside voluntary conveyances?
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Only PRESENT creditors
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What's a creditor's bill and interrogatories?
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Allow creditor to discover debtor's property/assets by examining debtor under oath after judgment
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When can you issue creditor's bill and interrogatories?
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1) Judgment +
2) Execution issued on jugment that returned unsatisfied |
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What is the sanction for not replying to creditor's bill and interrogatory?
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Writ of capias, which means you can be taken into custody until answered
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