Any lien on any real estate, consensual or judicial, must appear in the county land records to be effective. Once a judgment is "docketed" in the county land records, it constitutes a lien on all real estate owned by the debtor in that county.5 Once docketed, a judgment lien works very much like a mortgage. The judgment runs interest at the judgment rate. The creditor can foreclose on the judgment lien and auction the property through judicial process.
If the judgment lien has attached to real estate, the judgment creditor will often want to simply be patient and wait. The judgment continues to run interest at the judgment rate awarded or the legal rate of 9% in the state of Virginia6 and 10% in Maryland7. This is currently much higher than market savings or mortgage rates. The real estate will usually continue to appreciate in value. If there is an existing prior mortgage, the judgment debtor will continue to pay it down. As a result of all of these factors, the judgment creditor’s position normally becomes stronger with time, once the judgment has attached to real estate.
If the judgment debtor has only personal property and no real estate, the situation is very different. Personal property depreciates with time, can be damaged and can be easily hidden. Real estate is not going anywhere. One of two things will eventually happen with a judgment lien on real estate. If the debtor is financially viable, he will eventually have to pay off the judgment lien in order to sell or refinance the property. One day, the telephone will ring and someone will want to know where to send the check.
If the debtor is insolvent, a prior mortgage holder may eventually foreclose. If there is enough equity in the property, this will also result in payment to the judgment creditor. The property may have already been encumbered by one large mortgage, multiple mortgages or other judgment liens. In this case, it is possible for a judgment lien creditor to be under secured or completely unsecured. If a prior mortgage holder forecloses in this case, the judgment creditor may get nothing and the judgment lien is eliminated. The only good news is that the judgment lien creditor did not expend additional legal fees in foreclosing on the real estate.
It is expensive to enforce a judgment lien on real estate. This requires a lawsuit involving the property owner, all mortgage holders, all judgment lien holders and anyone else with an interest in the property. A commissioner in chancery or special master often hears the case and must be paid hourly for this purpose. A title search on the property is necessary and the foreclosure auction must be advertised in the newspaper. It is practically impossible to recover attorney’s fees incurred foreclosing on a judgment lien. It is also impossible to settle such a case by agreement, unless the judgment debtor is solvent.
Accordingly, it is often the best strategy for a judgment creditor to simply wait. If judgment creditors are impatient and insist on foreclosing on the judgment lien, this will result in high costs and a lower chance of recovery. Foreclosure is normally a good strategy only if the judgment debtor has the ability to pay the judgment or the judgment is large and there is ample equity in the property.
The judgment will not attach to the real estate unless it is docketed in the name of the property owner. Therefore, it is important to look ahead and know the name of the property owner before filing the lawsuit to obtain a judgment. Common problems involve, married names, trade names, middle names and initials. It is normally possible to list a defendant more than once, with variations of their names. Then the judgment will be entered in all variations of the name, and is more likely to attach to property.
In Virginia and Maryland, a judgment in the circuit court will automatically be docketed in the land records of that county.8 A judgment in the district court, however, is not automatically docketed. The creditor must obtain an abstract of the judgment from the district court and have the judgment docketed in the circuit court land records.
Judgment liens on real estate are also county specific. A judgment docketed in one county will not attach to real estate in another county. Again the creditor must request an abstract of the judgment from the original court of entry and then have that judgment docketed in any county in which the debtor owns real estate. Docketing a judgment is relatively cheap, so it is often a good strategy to simply have judgment docketed in multiple surrounding counties, where the debtor may own property.
If the judgment debtor owns real estate in another state, the process is similar, but somewhat more complicated and expensive. The creditor must have their judgment "domesticated" in the state where the real estate is located. Most states including Maryland and Virginia have adopted the Uniform Enforcement of Judgment Act.9 In these states, the domestication process is simpler, cheaper and faster. The creditor must obtain a "triple seal" abstract from the court where the judgment was entered. This abstract is then mailed to the court in the new state, along with domestication forms. The judgment debtor receives notice, normally by certified mail. The debtor has no ability to avoid judgment in the new state, except on procedural due process grounds. In other words, the debtor can show that it was not properly served in the original court or that the court lacked personal jurisdiction. The judgment debtor cannot, however, reargue the merits of the case and whether they owe the creditor money. This is normally true even in the case of a default judgment. Some states, however, have not adopted the Uniform Enforcement of Judgment Act. In such states, it is necessary to actually file a new lawsuit in the state where the real estate is located.
Docketing a judgment in the land records is normally so easy and inexpensive that a judgment creditor will normally want to have the judgment docketed in all counties in which the judgment debtor will ever possibly obtain an interest in real estate. A judgment lien normally lasts for at least a decade and can normally be extended for decades more.10 Over the passage of this time, many things can happen causing the judgment to attach to real estate.
Once a judgment is docketed in a county, if the judgment debtor ever buys real estate in that county the judgment lien will immediately attach. Real estate often passes by inheritance. If your judgment debtor’s parents live in as certain county, this is reason enough to have the judgment docketed there. If real estate is owned by tenants by the entirety, a judgment against just one tenant will not attach. If the parties’ later divorce or the non-debtor passes away, the judgment will immediately attach. Docketing a judgment is so cheap and lasts so long, it is often worthwhile to docket the judgment in any county in which the debtor, lives, may live in the future, or has relatives.
-->
-->
-->