Attachment and levy of real estate

Real property is levied upon by the sheriff filing a notice with the recorder of deeds describing the real property.[[FN8] V.A.M.R. 76.06, 76.07.

 

Usually, property levied upon is not sold until after a hearing on the merits. However, a court can order a prejudgment sale if it finds that (a) the property is likely to perish, (b) the property is likely to depreciate in value to a considerable extent, or (c) if maintaining the property would cause undue expense.[FN9] Such sales must comply with the requirements of V.A.M.R. 76.13.[FN10] If practicable, notice must be given before an order of sale is made.[FN11] The court also has the power to appoint a receiver to hold the property.[FN12]

 [FN9] V.A.M.R. 85.23.

[FN10] V.A.M.R. 85.23(c).

[FN11] V.A.M.R. 85.23(c).

[FN12] V.A.M.R. 85.22. The authority and obligations of a receiver are set forth in V.A.M.S. §§ 521.310 to 521.330.

 

It is not uncommon for persons who are not parties to the lawsuit to be very interested in an attachment proceeding. For example, disputes often arise between an attaching creditor and third persons who have an interest in the attached property. Pursuant to V.A.M.R. 85.20, any person claiming an interest in the attached property may intervene in the attachment proceedings. An intervenor has the burden of proving his claim of right or title to the property.[FN1] The strength of an intervenor's claim must be judged on the basis of his title to the property, not on the weakness of the claimant's claim.[FN2]

 

[FN1] Rathbone v. Rathbun, 35 S.W.2d 38, 39 (Mo.App.1931).

[FN2] Lustig v. Montgomery, 236 Mo.App. 374, 156 S.W.2d 782, 784 (1941).

 

If a creditor is successful in the underlying lawsuit, he will have an attachment lien on any property which was properly attached. The attachment lien relates back to the time of levy. The attachment lien is inchoate during the time between seizure and judgment. Upon judgment, the victorious claimant proceeds to execution in the ordinary way, utilizing the attachment property to satisfy his judgment.

The post-trial procedure and the procedure on appeal is the same as in ordinary civil actions.[FN8] Any bond in force in the attachment proceedings will continue until either the trial court's judgment is final or, in the event of an appeal, until the case is finally determined.[FN9]

 

[FN8] V.A.M.R. 85.16.

[FN9] V.A.M.R. 85.17.

 

 

 

85.21. Manner of Attaching Property

Property may be seized by attachment in the same manner as it may be levied upon pursuant to Rule 76.

 

76.06. Levy - How Made

(a) Real Estate. A levy upon real estate shall be made by the sheriff endorsing the description of the real estate upon the execution.

 

76.04. Execution - When Returnable

An execution shall be returned at a date designated by the applicant, which shall not be less than thirty days nor more than ninety days after it is issued.

When an execution is levied upon property and a sale is not made before the return date of the execution, the execution and any lien created thereby shall remain in force for one hundred eighty days after the issuance of the execution or until the property is sold, whichever period is shorter.