How to Conduct a Sheriff’s Sale of Real Property to Collect a Judgment in California – Part 4

If the judgment creditor has levied on real property to collect a judgment, and if the real property contains a “dwelling,” the judgment creditor must timely file an Application for Order of Sale of Dwelling.  As far as what must be contained in the Application, CCP § 704.760 states as follows:

“The judgment creditor’s application shall be made under oath, shall describe the dwelling, and shall contain all of the following:

(a)         A statement whether or not the records of the county tax assessor indicate that there is a current homeowner’s exemption or disabled veteran’s exemption for the dwelling and the person or persons who claimed any such exemption.

(b)         A statement, which may be based on information and belief, whether the dwelling is a homestead and the amount of the homestead exemption, if any, and a statement whether or not the records of the county recorder indicate that a homestead declaration under Article 5 (commencing with Section 704.910) that describes the dwelling has been recorded by the judgment debtor or the spouse of the judgment debtor.

(c)          A statement of the amount of any liens or encumbrances on the dwelling, the name of each person having a lien or encumbrance on the dwelling, and the address of such person used by the county recorder for the return of the instrument creating such person’s lien or encumbrance after recording.”

In other words, the Application must include information as to: (1) whether the dwelling is the debtor’s “homestead,” and (2) the other liens encumbering the real property.

As will be explained in a future post, if the dwelling is the debtor’s “homestead,” the Application must also contain information as to the amount of the homestead exemption and the value of the real property. 

Regarding service of the Application for Order of Sale of Dwelling, CCP § 704.770(b) states as follows:

“Not later than 30 days before the time set for hearing, the judgment creditor shall do both of the following:

(1)         Serve on the judgment debtor a copy of the order to show cause, a copy of the application of the judgment creditor, and a copy of the notice of the hearing in the form prescribed by the Judicial Council. Service shall be made personally or by mail.

(2)         Personally serve a copy of each document listed in paragraph (1) on an occupant of the dwelling or, if there is no occupant present at the time service is attempted, post a copy of each document in a conspicuous place at the dwelling.”

The timing of the hearing and the giving of notice to the judgment debtor can be quite tricky, as will be discussed in a future post.

Leave a Reply

Your email address will not be published.

  • Related Posts

    Contact The Wallin Firm Now