In view of the preceding
pages and my commentary to direct your attention and highlight certain
points, I am confident that you will absorb the points contained in the
following citations of law without my commentary.
TITLE 28 - JUDICIARY AND
JUDICIAL PROCEDURE
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
VIII. PROVISIONAL AND FINAL REMEDIES
Rule 69. Execution
(a) In General. Process to enforce a judgment for the payment of money
shall be a writ of execution,
unless the court directs otherwise. The procedure on execution, in
proceedings supplementary to and in aid of a judgment, and in
proceedings on and in aid of execution shall
be in accordance with the practice and procedure of the state in which
the district court is held, existing at the time the remedy is
sought, except that any statute of the United States governs to the
extent that it is applicable.
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TITLE 28 - JUDICIARY AND
JUDICIAL PROCEDURE
PART V - PROCEDURE
CHAPTER 111 - GENERAL PROVISIONS
Sec. 1651. Writs
(a) The Supreme Court and all courts established by Act of Congress may
issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or
judge of a court which has jurisdiction.
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TITLE 28 - JUDICIARY AND
JUDICIAL PROCEDURE
PART VI - PARTICULAR PROCEEDINGS
CHAPTER 176 - FEDERAL DEBT COLLECTION PROCEDURE
SUBCHAPTER C - POSTJUDGMENT REMEDIES
Sec. 3203. Execution
(a) Property Subject to Execution.
- All property in which the judgment debtor has a substantial nonexempt
interest shall be subject to levy pursuant to a writ of execution.
The debtor's earnings shall not be subject to execution while in the
possession, custody, or control of the debtor's employer.
Co-owned property shall be subject to execution to the extent such
property is subject to execution under the law of the State in which it
is located.
(b) Creation of Execution Lien. - A lien shall be created in favor of the
United States on all property levied on under a writ of execution
and shall date from the time of the levy. Such lien shall have
priority over all subsequent liens and shall be for the aggregate
amount of the judgment, costs, and interest. The execution lien
on any real property as to which the United States has a judgment lien
shall relate back to the judgment lien date.
(c) Writ of Execution. -
(1) Issuance. - On written application of counsel
for the United States, the court may
issue a writ of execution. Multiple writs may issue
simultaneously, and successive writs may issue before the return date
of a writ previously issued.
(2) Form of writ. -
(A) General contents. - A writ of
execution shall specify the date that the judgment is entered,
the court in which it is entered,
the amount of the judgment if for money,
the amount of the costs, the amount of interest due, the sum due as of the date the writ is issued, the
rate of postjudgment interest, the name of the judgment debtor, and the
judgment debtor's last known address.
(B) Additional contents. - (i) Except as provided in clauses (ii) and
(iii), the writ shall direct the
United States marshal to satisfy the judgment by levying on and selling
property in which the judgment debtor has a substantial
nonexempt interest, but not to exceed property reasonably equivalent in
value to the aggregate amount of the judgment, costs, and interest.
(ii) A writ of execution issued on a judgment for the delivery to the
United States of the possession of personal property, or for the
delivery of the possession of real property, shall particularly
describe the property, and shall require the marshal to deliver the
possession of the property to the United States.
(iii) A writ of execution on a judgment for the recovery of personal
property or its value shall direct the marshal, in case a delivery of
the specific property cannot be had, to levy and collect such value out
of any property in which the judgment debtor has a substantial
nonexempt interest.
(d) Levy of Execution. -
(1) In general. - Levy on property pursuant
to a writ of execution
issued under this section shall be made in the same manner as levy on property is made
pursuant to a writ of
attachment issued under section
3102(d).
(2) Death of
judgment debtor. - The death of the judgment debtor after a writ of
execution is issued stays the execution proceedings, but any lien
acquired by levy of the writ shall be recognized and enforced by the
court for the district in which the estate of the deceased is
located. The execution lien may be enforced -
(A) against the
executor, administrator, or personal representative of the estate of
the deceased; or
(B) if there be
none, against the deceased's property coming to the heirs or devisees
or at their option against cash in their possession, but only to the
extent of the value of the property coming to them.
(3) Records of united states marshal. - (A) A United States marshal
receiving a writ of execution
shall endorse thereon the exact hour and date of receipt.
(B) The United States marshal shall make a written record of every
levy, specify the property on which levy is made, the date on which
levy is made, and the marshal's costs, expenses, and fees.
(C) The United States marshal shall make a written return to the court
on each writ of execution stating concisely what is done pursuant to
the writ and shall deliver a copy to counsel for the United States who
requests the writ. The writ shall be returned not more than -
(i) 90 days after the date of issuance if levy is not made; or
(ii) 10 days after the date of sale of property on which levy is made.
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PART VI - PARTICULAR
PROCEEDINGS
CHAPTER 176 - FEDERAL DEBT COLLECTION PROCEDURE
SUBCHAPTER B - PREJUDGMENT REMEDIES
Sec.
3102. Attachment
(d)
Levy of Attachment.
- (1) The United States marshal
receiving the writ
shall proceed without delay to levy upon the property specified
for attachment if found within the district. The marshal
may not sell property unless ordered by the court.
(2) In performing the levy, the United States marshal may enter any
property owned, occupied, or controlled by the debtor, except that the
marshal may not enter a residence or other building unless the writ
expressly authorizes the marshal to do so or upon specific order of the
court.
(3) Levy on real property is made by entering the property and posting
the writ and notice of levy in a conspicuous place upon the property.
(4) Levy on personal property is made
by taking possession of it.
Levy on personal property not easily taken into possession or which
cannot be taken into possession without great inconvenience or expense
may be made by affixing a copy of the writ and notice of levy on it or
in a conspicuous place in the vicinity of it describing in the notice
of levy the property by quantity and with sufficient detail to identify
the property levied on.
(5) The United States marshal shall file a copy of the notice of levy
in the same manner as provided for judgments in section 3201(a)(1). The
United States marshal shall serve a copy of the writ and notice of levy
on -
(A) the debtor against whom the writ is issued; and
(B) the person who has possession of the property subject to the
writ; in the same manner that a summons is served in a civil
action and make
the return thereof.
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Again, please note that a
levy is not "made" without a court order.
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