[BROKERDIRT] Virginia partial judgment releases
Daniel Press
The DIRT/BROKERDIRT list has been pretty quiet since Pat passed away, but I think it still exists. I hope so, and I hope we can get some discussions going again.
So…
During the 2015 session, the Virginia General Assembly passed legislation that amended VA Code 8.01-453 and -454 as follows:
§ 8.01-453. When and how payment or discharge entered on judgment docket.
The fact of payment or discharge, either in whole or in part, satisfaction of any judgment so docketed, and if there is more than one defendant, by which defendant it was paid or discharged satisfied, shall be entered by the clerk in whose office the judgment is docketed whenever it appears from a certificate of the clerk of the court in which the judgment was rendered, that the judgment has been satisfied, in whole or in part, or upon the direction, in writing, of the judgment creditor or his duly authorized attorney or other agent.
§ 8.01-454. Judgment, when paid, to be so noted by creditor.
In all cases in which payment or satisfaction of any judgment so docketed is made, which is not required to be certified to the clerk under § 8.01-455, it shall be the duty of the judgment creditor, himself, or by his agent or attorney, to cause such payment orsatisfaction by the defendant, whether in whole or in part, and if there is more than one defendant, by which defendant it was paid or discharged satisfied, to be entered within 30 days after the same is made, on such judgment docket. If the judgment has not been docketed, then the entry shall be made on the execution book in the office of the clerk from which the execution issued. For any failure to do so within 90 days, or after 10 days' notice to do so by the judgment debtor or his agent or attorney, the judgment creditor shall be liable to a fine of $100 and shall pay the filing cost of the release. The entry of payment or satisfaction shall be signed by the creditor or his duly authorized attorney or other agent and be attested by the clerk in whose office the judgment is docketed, or when not docketed, by the clerk from whose office the execution issued; however, the cost of the release shall be paid by the judgment debtor.
My client has a judgment against an individual in Prince George county, Virginia. Real property was conveyed to his ex-wife as part of a divorce settlement (after the divorce), and the ex-wife wanted my client to release the judgment from the property, to which we agreed (for an appropriate sum), but of course we want to leave the judgment in place in personam against the actual judgment debtor in order to garnish, and as a lien on any other property he may own. We prepared a release of the judgment lien from the wife’s property, modifying the new official form, because the form took out the provision for a partial release. Now the clerk is refusing to record it due to the above amendment.
My understanding of the amendment is that it is intended to avoid the need to file something every time a payment is made on the judgment (a rule generally honored in the breach), but not to prevent the filing of releases of property from a judgment. If a particular property can’t be released from a judgment without satisfying the whole judgment, it would throw a huge wrench into the ability to do any kind of workouts, letting developers sell off lots and pay down debt, etc. It is pretty obvious to me that the legislature would not be that dumb – (yes, even this legislature).
I have spoken to the Clerk and they tell me that Judicial Services at the Supreme Court told them this, and the form was amended to get rid of partial releases. They are going to talk to judicial services again, but I’m not optimistic that the clerk will ever record this.
So does anyone have any thoughts on how to release a single property from the lien of a judgment at this point (without a bankruptcy filing)?
Dan Press
Chung & Press, P.C.
6718 Whittier Ave. #200
McLean, VA 22101
703-734-3800
703-734-0590 fax
571-730-1955 direct
dpr...@chung-press.com
Twitter: @press_dan
Selected as a 2012-15 Super Lawyer for Virginia and DC
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Douglass Dewing
Is the clerk sure this applies to the land records, and not the clerk's internal accounting records? (nah, it would be in Title 16 or 17 if that was the case)
Is the clerk going to indemnify your client should the defendant seek the fine and penalty authorized by 8.01-454?
Would the clerk like to be a defendant when you petition the judge for an order under 8.01-455?
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Richard Anderson
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Daniel Press
Thanks. No, all after the divorce, and husband/debtor not involved.
I think Doug Dewing’s response (also suggested by another well-respected VA dirt lawyer) is the way to go (including the threat to sue the clerk). But the legislature needs to fix this…
Dan Press
Chung & Press, P.C.
6718 Whittier Ave. #200
McLean, VA 22101
703-734-3800
703-734-0590 fax
571-730-1955 direct
dpr...@chung-press.com
Twitter: @press_dan
Selected as a 2012-15 Super Lawyer for Virginia and DC
To add or remove from this mailing list, please go to <http://listserv.umkc.edu/scripts/wa.exe?SUBED1=BROKERDIRT&A=1> or send an email message to the address list...@listserv.umkc.edu, with the text SIGNOFF BROKERDIRT in the body of the message.
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