September 9, 2009

If a party that obtains a judgment against a defendant has a writ issued to a Sheriff of a certain county and then has the sheriff levy upon personal property or real property in accordance with the writ, such levy can be considered void if the writ of execution is issued to the improper sheriff. In the matter of Borromeo v. DiFlorio, 2009 WL 2391850 (App. Div. 2009), the Appellate Court addressed a matter where the plaintiff had a Writ of Execution directed to the Sheriff of Mercer County and the plaintiff then sent the Writ to the Somerset County Sheriff. The plaintiff then directed the Somerset County Sheriff to levy on the Defendant’s real property within Somerset County.

The plaintiff subsequent thereto was contacted by the Sheriff of Somerset County and was advised of the error regarding the notation of the improper Sheriff on the Writ. The plaintiff thereafter forwarded a corrective Writ to the Sheriff of Somerset County, changing the Sheriff from Mercer to Somerset County, and the property was scheduled to be sold. The defendant had previously filed a Motion to void the Writ as the defendant asserted that the plaintiff failed to levy on the defendant’s personal property prior to levying on his real property, which was denied by the Superior Court. Then in the defendant’s Motion for reconsideration in the Superior Court, he asserted that the execution on the real property was defective and void, as the Writ was directed to the wrong sheriff. The lower court found that while the original Writ was defective the corrective Writ cured the defect and thus, the levy was proper.

The Appellate Court stated that the Writ of Execution with the wrong Sheriff made the levy void, as a writ of execution grants a county sheriff the authority to endorse the writ and post it on the property of another. N.J.S.A. 2A:16-1; R. 4:65-2. Further, a writ has no force and can be of no effect outside the county for which it is issued. Therefore, the direction to the county officer named in a writ remains an essential element of a writ itself. A misdirection deprives the receiving sheriff of legal efficiency.

Thus, as the Writ was directed to the Mercer County Sheriff, the Somerset County Sheriff had no authority to levy upon the defendant’s property. Additionally, the Appellate Court found that the corrective Writ did not cure the default, as the Sheriff of Somerset County once issued the new Writ, would have had to again perform the levy on the defendant’s real property, as the prior levy was void.

Accordingly, a simple error such as noting a wrong Sheriff on a Writ could result in a levy and/or sale being declared void and issuing a corrective writ does not cure the error and the post-judgment procedure has to be effectuated again.

Eric P. Kelner is an associate at Hill Wallack LLP in the Princeton office where he is a member of the Creditors’ Rights/Bankruptcy Practice Group. Mr. Kelner concentrates his practice in all matters of creditors’ rights and bankruptcy, including workouts, foreclosures, replevin actions, and collections. His extensive client list includes secured creditors and unsecured creditors in bankruptcy and non-bankruptcy proceedings.