This is Part II of a series on forcing a sheriff’s sale of real property in California. Part I covers how to determine whether a real property levy is viable — if you have not read it, start there. This post assumes you have confirmed there is sufficient equity in the property to proceed and walks through the nuts and bolts of preparing the levy and obtaining an order for sale from the court. This process is highly technical and requires a great deal of time and patience.
The property pictured above is a home in Pleasanton, California that was sold at an execution sale directed by my office in April 2021 for $2,835,000.
Get a Drive-By Appraisal
Before you submit anything to the sheriff or the court, you need a professional estimate of the property’s fair market value. A drive-by appraisal — where a licensed appraiser evaluates the property from the exterior without interior access — gives you a defensible number to use in your ex parte application. The court requires a statement of fair market value in the application for order of sale, and a professional appraisal carries far more weight than an online estimate. It also confirms, before spending significant money on the levy process, that there is enough equity above the senior liens to make the sale worthwhile.
Order a Litigation Guarantee from a Title Company
A litigation guarantee is a report issued by a title company that identifies all liens, encumbrances, and recorded interests against the property, along with the current owners of record. You cannot accurately complete your ex parte application without knowing every lienholder, their address, and the approximate amount outstanding on each lien. This is similar to the public records search described in Part I, but a formal litigation guarantee from a title company is the more thorough and reliable tool at this stage. Order it early — title companies can take time to issue the guarantee, and you need it in hand before you can draft the ex parte application or submit the levy paperwork to the sheriff. Failing to identify and properly serve all lienholders is one of the most common reasons execution sales are challenged or set aside.
Obtain a Writ of Execution
Once you have your appraisal and litigation guarantee in hand, obtain a writ of execution for the county where the sale will take place. Make sure you have included all allowable costs and calculated the interest correctly before filing your memorandum of costs with the court. Errors at this stage can delay the entire process.
Prepare the Ex Parte Application Before You File the Levy
This is the most important timing point in the entire process. Once the sheriff records the levy, you have only 20 days to serve the ex parte application on the sheriff. Courts are not flexible on this deadline. My strong recommendation is to have the ex parte application fully drafted and ready to file before you ever submit the levy paperwork to the sheriff — that way the moment the recorded levy comes back to you, you can move immediately.
If the property is located in the same county as the judgment, you will use your existing case number. If it is in a different county, you will need to record an abstract of judgment in that county first to obtain a local case number. Prepare the abstract at the same time as the ex parte application so there are no delays.
The ex parte application must identify all lienholders, their addresses, and the outstanding balance on each lien — drawn from your litigation guarantee. It must also state whether a homestead or veteran’s exemption applies and the fair market value of the property from your appraisal.
File the Sheriff’s Levy Application
With the ex parte application drafted and ready to go, prepare the levy application for the county sheriff where the sale will occur. Each county’s application is slightly different, but it will generally require the legal description of the property — which you can find on the deed — along with the writ of execution and the applicable levy fee. Some counties require only a deposit to record the levy. Others require the full fee to conduct the sale upfront, which can amount to several thousand dollars.
The sheriff will process the levy, and if everything is in order they will record it and return it to you. That recorded levy is your signal to file immediately.
File and Serve the Ex Parte Application to Sell
File the ex parte application as soon as the recorded levy is back in your hands. It must be served on the sheriff within 20 days of the levy being recorded. See CCP § 704.750. If the application is in order and properly served, the court will set a hearing date for the motion for order to sell — that hearing must take place within 30 days of the ex parte application.
Obtain and Serve the Hearing Notice
Once the court issues the order and provides the hearing date and time, prepare a new notice of hearing. The notice of hearing and the application for sale must be personally served on all occupants of the dwelling and posted on the property itself.
Part III of this series will cover what happens at the hearing and through the sale itself. In the meantime, if you have questions about whether a real property levy is the right tool for your judgment, or want help evaluating whether your debtor has reachable assets, you can request a free judgment review.
Technical Enforcement Guide Series
This article is part of a series of Technical Enforcement Guides discussing practical tools used in California judgment enforcement.
Bryan M. Grundon has focused on judgment collection and post-judgment enforcement for more than 20 years, representing creditors in enforcement matters throughout California.
