Execution and the sheriff's sale

Writ, levy, notice, sale

An execution is the engine. Everything after it is a schedule of days a creditor cannot shorten.

In New York the execution issues to the sheriffs of one or more counties, directing them to satisfy the judgment out of the debtor's real and personal property and the debts owed to the debtor. It may be issued by the clerk or by the creditor's attorney as an officer of the court, at any time before the judgment is satisfied or vacated. All of that lives in CPLR 5230(b)¹. It is returnable within sixty days unless served as an income execution or on a garnishee, and the attorney may extend it in writing for up to sixty more. CPLR 5230(c).

Not every New York land sale needs a fresh levy first. A sheriff sells the debtor's interest that was levied on, or that was subject to the judgment lien when the execution was delivered. CPLR 5236(a)². A separate notice of levy comes into it only after ten years from the filing of the judgment-roll, when the sheriff levies by filing that notice with the county clerk. CPLR 5235³. And mortgaged real property may not be sold on an execution for all or part of the mortgage debt. CPLR 5236(b).

Notice schedules catch people. Notice is posted at least fifty-six days before the sale. The creditor hands the sheriff a list, and that list covers everyone who had an interest in or lien of record forty-five days before the sale: the debtor, every judgment creditor whose judgment was a lien, and every other record holder. Each name on it is served at least thirty days before, under CPLR 5236(c). A copy is also published at least once in each of four periods of fourteen successive days, which is where the publication clock lives.

Then the auction. It falls between the fifty-sixth and sixty-third day after first publication, sold as a unit or in parcels as will bring the highest price, and never to the sheriff or a deputy. CPLR 5236(a). A judgment creditor who was notified of the sale and does not deliver an execution before it loses its lien on the property, under CPLR 5236(e). That is a trap for a creditor who files and then watches.

A buyer is protected against the sheriff's mistakes. A missed notice does not affect the title of a purchaser who did not know of the omission. CPLR 5236(c). Willfully defacing or removing a posted notice of sale before the sale is punishable as a contempt of court, under CPLR 5251⁴. Personal property capable of delivery is levied on by seizure, taking it into custody. CPLR 5232(b)⁵. Its sale is posted at least six days ahead. CPLR 5233(b)⁶.

A homestead is a separate route. A judgment creditor may bring a special proceeding in the county where the homestead lies for its sale by a sheriff or receiver, where the home is worth more than the county's exemption amount, under CPLR 5206(e)⁷. Base figures written into that section are not the amounts in force: they adjust every three years, a schedule that started April 1, 2012. CPLR 5253(a)⁸. So the number to use is the adjusted one, not the one printed in the statute.

Florida runs wider and longer. An execution there is directed to all the sheriffs of the state, is in force throughout the state, and stays valid for the life of the judgment. Fla. Stat. 56.031⁹ and 56.021. Lands, goods, equities of redemption and corporate stock are all subject to levy and sale. Fla. Stat. 56.061¹⁰.

Before the sale is advertised, at the time of the levy request, the Florida creditor delivers the sheriff an affidavit. For land it attests to a search of the clerk's records or a title search, and discloses every judgment lien, mortgage, financing statement, tax warrant and other lien against the property. Fla. Stat. 56.27(4)¹¹. That affidavit is load bearing: it drives who gets notice and, later, where surplus goes. What act actually completes a sheriff's levy on Florida land is nowhere described in these sections, and this page will not fill it in.

Florida advertises the sale once a week for four weeks in the county newspaper. Fla. Stat. 56.21¹². The debtor or its lawyer gets a copy by certified mail by the first publication, even on a default judgment. Fla. Stat. 56.21. Notice of the levy and sale also reaches the owner of record, every disclosed mortgage or lienholder, and secured creditors with financing statements. Fla. Stat. 56.21. A sale may not be held sooner than thirty days after the first advertisement, on a weekday at the advertised time and place. Fla. Stat. 56.21 and 56.22(1).

Two Florida tools are worth naming. On a levy against an equity of redemption, the court can order the mortgagor and mortgagee examined about what is still owed, so the equity's value is known before the sale. Fla. Stat. 56.071¹³. And a sheriff who will not levy, or who levied but will not advertise and sell, can be compelled by mandamus. Fla. Stat. 56.26¹⁴.

Whichever state, the buyer walks away with a deed. In Florida the officer delivers a deed or bill of sale on payment of the price and the cost of the deed. Fla. Stat. 56.25¹⁵. In New York the sheriff delivers, within ten days, the proofs of notice and a deed conveying the right, title and interest sold. CPLR 5236(f). A New York buyer for value at the sale is excepted from the rule that a debtor's later transfers cannot defeat a docketed judgment, so the deed holds against the judgment, under CPLR 5203(a)¹⁶. And a buyer who loses the property to an irregularity or a vacated judgment may recover the purchase money from the creditors who received it. CPLR 5237¹⁷. What the deed does to the liens ranked ahead of the judgment, neither state's sections here say, and that is a question in its own right. Which liens outlive a sale is treated in which liens survive a foreclosure or an execution sale.

Credit bids

A credit bid is bidding the judgment instead of cash. Whether a creditor may do it at a sheriff's sale is a fair question, and the statutes do not answer it.

A whole New York sale lives in CPLR 5230 through 5236, and those sections say nothing about a creditor bidding its own judgment or how such a bid would be applied. Florida's sale chapter leaves the same question open. So the page will not guess at it either way. A bidder who needs that answer needs it from counsel, not from the sections that govern the auction.

What the statutes do settle is who is paid from the price. In New York, after fees, expenses and taxes are taken out, and absent a contrary court direction, the sheriff pays the creditors who delivered executions before the sale and did not have them returned, in the order of their judgments' priority, with any excess to the debtor. CPLR 5236(g). A creditor who ran the sale is paid in its rank, not at the front of the line.

Florida sets a stricter order. First the sheriff's costs, then $500 to the levying creditor as liquidated expenses, then the priority lienholder named in the affidavit, in satisfaction of the judgment lien if it has not lapsed. Fla. Stat. 56.27(1). Surplus goes to unlapsed judgment lienholders in order of priority, then to the owner of the property sold. Fla. Stat. 56.27(2)(a). But if the affidavit discloses a junior non-judgment lien, a mortgage or a tax warrant, the surplus goes into the court's registry for the court to sort out. Fla. Stat. 56.27(2)(b). An affidavit a creditor filed before the sale decides where the money lands after it.

Redemption

Whether a debtor can buy the land back after a sheriff's execution sale is the question people most expect a statute to answer. For execution sales, neither state's sections here do.

New York's execution sections say nothing about redeeming real property after the sale. Florida's execution chapter is silent the same way. So this page states neither that there is a right nor that there is none, because the statutes do not reach it.

Florida does have a redemption statute, and it is worth not confusing. Fla. Stat. 45.0315¹⁸ concerns foreclosure sales: the mortgagor or a holder of any subordinate interest may cure and stop the sale at any time before the later of the clerk's filing of the certificate of sale or the time the judgment sets. That section then closes with a flat line, that otherwise there is no right of redemption. Fla. Stat. 45.0315. That sentence is written for foreclosure. It is not stated as the rule for an execution sale, and this page will not stretch it into one.