There are several different types of judgments in the State of South Carolina that your attorney may mention concerning your case; however, these different judgments have no real distinguishable difference other than the method used for the judgment to obtained.
The main difference could be the expense to the creditor of receiving the judgment. Understanding the different sorts of judgments is likely to help someone understand why different judgments cost more financially that others.
Conditions and situations determine the options and due to this you will have a limited ability to select which sort of judgment will provide resolution to your case.
Confession of Judgment: There is often a lot in a name and the same is true of judgments.
A debt will be acknowledged by the borrower as being owed, in which case, a confession of judgment is entered by the entity extending credit against the borrower as a judgment. A payment plan for the debt is often combined with this type of judgment.
A confession of judgment is given by the debtor as a form of protection or “security” for the creditor so that the creditor will not be subjected to a partial payment of the debt owed should the borrower default on repayment.
For a confession of judgment to be decided the process of the creditor must be that the creditor has filed the complaint, then a voluntary dismissal without prejudice will typically be included in an agreement to the confession of judgment being supported. If a litigation is pending, a confession of judgment cannot be filed.
Terms for a confession of judgment will typically include a new debt created by the establishment of an agreement; however, it is not required that it does, but, as an additional assurance that the creditor will control all rights and corrections against the borrower, the form for “without prejudice” is added to the agreement.
The use of quotation marks with the word “security” is done so for a specific reason. The confession of judgment is not a judgment until it is filed and should there be a petition for bankruptcy filed, it is no more secured for the creditor than without a confession of judgment.
Consent Judgment: As an assistance to the confession of judgment is the consent judgment. The difference between a consent judgment and a confession of judgment is that after a complaint is filed into a consent judgment is entered and is intended to be an immediately filed judgment against the borrower.
When the borrower claims that the debt is owed, but is incapable of pay the debt at that specific time, consent judgment is used as a method to control the expense of litigation.
Similar to its companion, the confession of judgment, a consent judgment can also include a forbearance agreement or a payment plan for the repayment of the debt, meaning the creditor will agree not to move forward for a period of time on the judgment contingent on payments being made by the borrower.
A consent judgment is attached to real property owned by the borrower and is considered an active judgment. This is done so that if the borrower does file bankruptcy, some security is given to the creditor, as long as there is an adequate amount of equity in the real property and a period of ninety days between the judgment entry and filing the petition has passed.
Default Judgment: If a borrower has failed to respond to a complaint a default judgment will be the result. The creditor must have a specific sum and be verified by court action through the filing of the complaint.
Should there be no answer filed on the part of the borrower, a default judgment will be entered by the court for the specific sum designated in the complaint, in addition to any interest that may have accrued from the time of the agreement or interest accrued form the time of default at a legal rate.
If an extension of time is awarded by the court, but does not file the answer, a sub-set of the process develops within which notice is required to be given to the borrower, now considered the defendant, which provides the defendant has thirty day to request a hearing. The idea behind this is that before a judgment is entered, the court provides everyone with a chance to be heard.
A default judgment is not easily overturned. It presents less difficulties than other sorts of judgments.
Judgment on the Pleadings: Occasionally, a letter in response to the complaint or an answer that has been provided by the defendant fails to deny the existence of the debt. The creditor is permitted to enter a motion for judgment on the pleadings in either situation.
This means that the judge over the case will read the complaint and answer, ruminate on the what arguments both sides would deliver, then provide a judgment founded on responses and allegations.
A notice is provided to all parties involved and the judgment after the decision is made in an open court. The court will decide that the debt without a doubt is owed by the defendant, according to the allegations and response.
Summary Judgment: A summary judgment can be harder than both a default judgment and a judgment on pleadings. Although, it is possible to pursue a summary judgment multiple times, most attorneys will make sure that the procedure has been thoroughly completed the first time.
The motion for a summary judgment should be accompanied by an affidavit from the creditor the identifying the required facets for the awarding of a summary judgment by the court. Depending on the amount pursued, the facets will vary, but usually a contract must be proven, breach of the contract, the sum owed, plus the interest on the debt and the lawyer’s fees must be established for a collections case. A request for admissions is included if the situation is more complex.
Should no answer be provided within the allotted time period for the request for admissions, it is decided to be admitted and will offer more support to the motion for summary judgment. A hearing and notice for the hearing is a requirement with this sort of judgment. Although, the motion may go unopposed, a judge must be the one to decide that the judgment is lawful and appropriate.
A request to reconsider could provide an overturning of this sort of judgment, but it is likely that the only way it will be overturned is by the Court of Appeals for the State of South Carolina, which is a costly process and makes this one of the best secured judgments after it has been entered.
Trial by Jury/Bench Trial: If the case goes to trial, there are two methods that either party could use. Although, given the right to a trial by a jury of peers, the defendant can waive this right or have it considered waived if not requested. More time and money will go into having a jury trial and the determination for liability will be decided by the twelve jurors.
This is an asset in some cases; however, a bench trial is more commonly used in collection cases, meaning that a judge will decide liability as opposed to the twelve jurors. It is typically less costly to have a trial by judge instead of jury, which streamlines the case. A number of attorneys will choose to go with a trial by judge simply because a judge has a stronger knowledge of the law than the common citizen used as a juror.
The Court of Appeals is the only method within which a judgment of this sort can be overturned.
Arbitration Award: An arbitration award is often converted to a judgment by way of the court process, wherein a hearing is provided to give confirmation of the award. Typically, a hearing for award confirmation is pro forma because judges, as a rule, are apprehensive about overturning the arbitrator’s award; however, there exists a chance for the attorney to dispute should the attorney feel the arbitration rules were violated.
A court judgment can be collect by using a property lien in the State of South Carolina. The following is a description of how that process works. First and foremost, if you are dealing with a situation involving a property lien in South Carolina, contact an experienced property lien attorney in South Carolina to fully explain the options available and what you can do while facing this situation.
After a settlement that has been approved in court or the verdict has been delivered by a jury or judge in a civil case, the court enters a judgment.
Typically, payment is ordered to be paid to the creditor at the expense of the debtor; however, the debtor does not always provide the payment that is owed. By obtaining a judgment lien on property, the creditor is given the right to receive payment by the sale of the property belonging to the debtor.
Prevailing in a judgment does not equal collection of that judgment. Typically, legal measures are required after the judgment before any payment is received.
It is advisable to retain an experienced property lien attorney before arriving at this stage. Legal proceedings can be complicated and it will likely take experience beyond the average knowledge of the law to achieve your desired result.
Do not expect to have the debt paid at the trial while you are in court, even if you prevail in the lawsuit. The payment will be voluntarily paid by the debtor according to the statement of judgment, if you are fortunate.
Should the debtor continue to refuse resolving the debt, options exist to continue pursuing the repayment of the debt that is owed. Two options that may be pursued are execution of judgment and judgment lien on property.
Should there be a judgment handed down against the debtor by the court, all property in the county where the court is located that is owned by the debtor will have a lien attached to it.
No property in any other county can be connected to the lien until the clerk of court in the county where the court is located is informed of the judgment.
If the debtor has not made the necessary court-ordered payment, the sheriff in that county will seize the property of the defendant after you have obtained the judgment lien; however, there are several things that are excluded from judgment collection.
After the property, has been identified as the debtor’s, the judgment must be delivered to the office of the clerk for that county and request a writ of execution after the judgment has been given.
The writ of execution informs the law enforcement what property must be seized in order to have the judgment satisfied.
If you have any questions about these types of judgments or any other judgment, please contact an experienced, dedicated judgment collection lawyer in South Carolina.
An experienced attorney can provide the answers you need.
Law enforcement will sell the property at auction or through some other means and pay the creditor with money from the proceeds, which is referred to as an execution of judgment.
Many different laws surround what may be sold by law enforcement, so please contact an experienced attorney to get the fullest explanation of the laws concerning execution of judgment.
After interest and the original debt have been paid in full by the debtor from the date the judgment was entered, a satisfaction of judgment form stating full payment has occurred must be filled out as a record with the clerk of court’s office, then the record of this sent to the debtor.
Under South Carolina law, a judgment lien is allowed on what property?
A judgment lien is allowed to be attached to real estate of the debtor in every state in the U.S. Additionally, it is allowed that a judgment lien be levied against personal property in some states; however, South Carolina allows only real estate judgment liens.
How can a creditor get a judgment lien in South Carolina?
In South Carolina, in the county where the judgment is entered, the judgment lien is automatically placed on the property of debtor. A creditor will file a copy of the judgment with the clerk of court for common pleas in the county where the property is located.
How long does a judgment lien last in South Carolina?
In South Carolina, a judgment lien on property last for a period of ten years, even if the property is sold or bought by multiple other parties.
Something else to remember is that a number of elements will influence the ability to collect payment under a judgment lien in South Carolina. These elements include the homestead exception, which basically states that if the debtor lives in the house with a lien on it, the debt attached to that house with have an amount of value that is fixed.
However, in this situation, it is wise to use the experience of a knowledgeable debt collection attorney to deal with the issues of a lien.
If you have any questions about any of these situations or you feel you may be involved with one area or more, contact our experienced team of professional attorneys at Thurmond, Kirchner & Timbes today so that we can get started fighting for you.
You deserve the right to fair representation. Call to schedule your free consultation now. We will examine you case and help you decide the best course of action.
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