The Short Answer
A writ of execution is a court order that authorizes the sheriff to seize your non-exempt property and sell it at auction to satisfy a judgment a creditor has won against you. It comes after a creditor sues you, wins a judgment, and you fail to protect your property by filing your exemptions. In North Carolina, you have the right to exempt certain property — including up to $35,000 in home equity and $3,500 in vehicle equity — but only if you file the proper paperwork with the court. If you're facing a writ of execution, filing for bankruptcy triggers the automatic stay, which can halt the sheriff's collection actions.
A writ of execution will be delivered by the sheriff. Basically, it is a court order from the judge allowing the sheriff to take possession of any assets you may have on hand. Why is this happening to you? A writ of execution is filed after a judgment has been issued against you in favor of the plaintiff, such as a credit card company or other creditor.
Creditor X has filed a civil summons (lawsuit) against you, concerning a credit card account you have with them that you have been unable to make payments on. They have sent you settlement offers, and have now hired an attorney to sue you. You have been “served” when you receive the lawsuit either by mail or service by a deputy sheriff. When you receive a lawsuit you should respond in the legally required manner. This requires that you file a legal answer with the court within 30 calendar days of being served the lawsuit. You must also give notice by mail to the attorney for the creditor that is suing you. Do not just call up the attorney for the creditor asking to work out a payment plan or to give you additional time to pay the balance. Creditor attorneys love for you to do this. This is not a sufficient answer to the court. By filing the legal answer with the court, it will buy you some time. Eventually, a court hearing is set. If you do not owe the debt in question, it is up to you to attend this hearing. This is when you would provide proof to the judge that you do not owe this debt. However, if you choose to not attend the hearing, a default judgment will be entered in your case. In other words, due to your absence, the judge automatically awards the plaintiff, Creditor X, the right to pursue the funds owed. This is known as a default judgment award.
The next important piece of mail you will receive will be a motion to exempt property or designate exemptions. This is also sometimes called a Notice of Right to Have Exemptions Designated. This is a form that you must fill out and return to the court. By properly filling out this form you can exempt or protect some of the property that you own under North Carolina state law.
When most people receive the notice of right to have exemptions designated form, they throw it in the trash. By not legally filing this paperwork with the court, none of your property is protected. In theory, the Sheriff’s office could seize all your property and sell it at a Sheriff’s auction. Again, it is imperative you respond to this! You usually have 20 days to do so. At this point, Creditor X has a judgment against you and is looking for retribution. Their lawyers will request a writ of execution from the judge. This is when the sheriff gets involved and makes an appearance at your doorstep trying to collect nonexempt property from you to sell at a Sheriff’s auction. The sheriff can also levy or seize your bank accounts.
First, you should always answer the door. Avoiding the sheriff may make your situation worse. You may ask the sheriff for more time to come up with the money owed or for time to file bankruptcy. It is not a guarantee that the sheriff will grant you an extension, but it is worth asking. If you tell the sheriff you are filing for bankruptcy then make sure you follow through because the sheriff will need a case number within a short time frame showing you have filed bankruptcy. Remember, filing for bankruptcy can be an extensive time-consuming process and requires payment before you file a petition. An emergency bankruptcy is always a possibility but there are more fees associated with the emergency filing of a bankruptcy. Hopefully, you have spoken to a bankruptcy attorney before this point. If you have not, you should call one, like Duncan Law.
If you don’t file a bankruptcy or settle the lawsuit, the Sheriff will have the ability to seize any non-exempt property and they may use that property to sell at an auction to try to satisfy Creditor X’s judgment against you. You don’t want your property seized though, so be sure to act before this time comes. Not only do you lose property but you also have to deal with the embarrassment of having the Sheriff come to your door to take the property. If you have any questions on how we can help, please feel free to give us a call.
Key Takeaways
- When you're served a lawsuit by a creditor, you have 30 calendar days to file a legal answer with the court — calling the creditor's attorney to negotiate does not count as an answer.
- After a judgment is entered, you must fill out and return the Notice of Right to Have Exemptions Designated form to protect your property under NC law — you typically have only 20 days to respond.
- Throwing away the exemptions designation form is one of the most costly mistakes you can make, because unfiled exemptions mean the sheriff can legally seize all of your non-exempt property.
- North Carolina law protects up to $35,000 in home equity ($70,000 for married couples), $3,500 in vehicle equity, and $5,000 in any personal property through the wildcard exemption.
- If the sheriff comes to your door, answer it — you can ask for more time or inform them you intend to file bankruptcy, but you must follow through with an actual case number quickly.
- Filing for bankruptcy triggers the automatic stay, which can stop a writ of execution in its tracks, but you should speak with a bankruptcy attorney before the sheriff arrives if at all possible.
Attorney Insight
The mistake I see most often is people throwing away the Notice of Right to Have Exemptions Designated — they assume it's junk mail or that they'll deal with it later. In North Carolina, that form is your one opportunity to legally shield your home equity, your car, and your personal property from the sheriff. Once you miss that 20-day window and the writ of execution is issued, recovering that protection is extremely difficult. By the time clients walk into our office with a sheriff already scheduled, their options are narrower and more urgent than they would have been weeks earlier.
