25-1516. Writ of execution; levy on real property; when; service upon debtor; procedure; State Court Administrator; duties; claim of exemption; hearing; valuation of motor vehicle.
(1) The writ of execution against the property of the debtor issuing from any court of record in this state shall command the officer to whom it is directed that of the goods and chattels of the debtor he or she cause to be made the money specified in the writ, and for want of goods and chattels he or she cause the same to be made of the lands and tenements of the debtor. The exact amount of the debt, damages, and costs for which the judgment is entered shall be endorsed on the execution.
(2) The writ of execution and a notice of exemptions form shall be issued by the clerk and served upon the debtor by the officer to whom the writ of execution is directed in the manner provided for service of process in civil cases, except that service by certified mail shall not be permitted unless the debtor is a nonresident of the State of Nebraska, in which event service shall be made by any method provided by law for service of process in civil cases.
(3) The State Court Administrator shall adopt and promulgate rules and regulations which specify uniform writs of execution and notice of exemptions forms for use in all courts in this state. The forms shall include the writ of execution and a notice of exemptions form.
(4) The notice of exemptions form shall include the following information:
(a) The caption of the lawsuit and the mailing address of the clerk of the court issuing the writ of execution; and
(b) The following notice to the debtor, in substantially the form below, which shall be printed in all capital letters immediately below the caption of the lawsuit and the address of the clerk of the court issuing the writ of execution:
NOTICE TO THE DEBTOR
YOU ARE HEREBY NOTIFIED THAT THIS COURT ISSUED A WRIT OF EXECUTION IN THIS CASE DIRECTING THAT SOME OF YOUR PROPERTY BE SOLD ACCORDING TO LAW AND THE PROCEEDS OF THE SALE BE DELIVERED TO THE CLERK OF THIS COURT TO BE USED TO SATISFY PART OR ALL OF YOUR DEBT TO THE CREDITOR. THE LAW OF NEBRASKA AND THE LAW OF THE UNITED STATES PROVIDES THAT CERTAIN PROPERTY CANNOT BE TAKEN FROM YOU AND SOLD TO PAY A DEBT. THE KINDS OF PROPERTY THAT CANNOT BE TAKEN FROM YOU AND THE PROCEDURE FOR CLAIMING THE EXEMPTION ARE SET FORTH BELOW.
THE LAW EXEMPTS FROM EXECUTION YOUR INTEREST IN OR RIGHT TO PROPERTY SET OUT IN LAW AS FOLLOWS: (THE NOTICE SHALL INCLUDE A SCHEDULE OF EXEMPTIONS AND MUST INCLUDE THOSE EXEMPTIONS LISTED IN SECTIONS 25-1552, 25-1556, 25-1559, 25-1563.01, 25-1563.02, 40-101, 44-371, AND 44-1089).
IF YOU BELIEVE THAT SOME OF YOUR PROPERTY IS EXEMPT FROM EXECUTION YOU MAY REQUEST A HEARING BY CHECKING THE BOX ON THIS FORM AND MAILING OR DELIVERING THIS FORM TO THE OFFICE OF THE CLERK OF THIS COURT SET FORTH ABOVE. YOU MAY ALSO HAVE TO PROVIDE A LIST OF YOUR PROPERTY AND THE VALUE OF YOUR PROPERTY AT THE TIME YOU MAIL OR DELIVER YOUR REQUEST FOR HEARING. FAILURE TO CLAIM THE EXEMPTION WITHIN TWENTY DAYS OF THE DATE YOU RECEIVE THIS NOTICE MAY MEAN THAT THE PROPERTY SEIZED WILL BE SOLD AND THE PROCEEDS APPLIED TO YOUR DEBT.
IF YOU REQUEST A HEARING THE HEARING WILL BE CONDUCTED NO LATER THAN TEN DAYS AFTER THE COURT RECEIVES YOUR REQUEST, UNLESS YOU REQUEST AN EARLIER HEARING DATE DUE TO AN EMERGENCY, IN WHICH CASE THE COURT SHALL SCHEDULE THE HEARING AS SOON AS PRACTICABLE.
IF YOU WANT LEGAL REPRESENTATION YOU SHOULD CONTACT YOUR LAWYER IMMEDIATELY. IF YOU NEED THE NAME OF A LAWYER, CONTACT THE LOCAL BAR ASSOCIATION OR YOUR LOCAL LEGAL AID OR LEGAL SERVICES OFFICE.
................................................
REQUEST FOR HEARING
I believe that some of my seized property may be exempt from execution in this matter and request that a hearing be held no later than ten days after the delivery of this request to the court.
Debtor.........................
Address.........................
Telephone Number.........................
Signature.........................
(5) The debtor desiring to claim an exemption from execution shall file a request for hearing.
(6) The clerk of the court which issued the writ of execution shall provide notice of the filing of the request for hearing and the date and time of any hearing to the person holding the writ and to all parties. There shall be a hearing held within ten days of the filing of the request for hearing unless the need for hearing is an emergency, in which case the court shall schedule the hearing as soon as practicable after the request is made. The hearing may be by conference telephone call if permitted by the court.
(7) At the hearing, the court shall determine the debtor's entitlement to the claimed exemption, whether the amount is owed on the judgment, and the value of the property claimed to be exempt and shall issue an exemption order after the hearing ordering the officer to sell the nonexempt property according to law and return the exempt property to the debtor immediately.
(8) If any of the personal property claimed to be exempt from execution by the debtor is a motor vehicle as defined in section 60-638, the cash value of such motor vehicle for purposes of the exemption may be determined by reference to a source of relevant fact commonly used in the motor vehicle industry to determine such value.
Source
Annotations
Under this section, a judgment creditor can obtain a writ of execution only to levy on the judgment debtor’s personal or real property interests. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).
Unless a judgment creditor shows that a judgment debtor has fraudulently transferred real property to avoid creditors, the relevant question for the remedy of execution is whether the debtor has any interest in the property. Fox v. Whitbeck, 286 Neb. 134, 835 N.W.2d 638 (2013).
One holding judgment as trustee of an express trust is entitled to enforce same for beneficial owners. German Nat. Bank of Hastings v. First Nat. Bank of Hastings, 59 Neb. 7, 80 N.W. 48 (1899).
If personal property is insufficient to pay debt, sheriff may at same time levy on real property, personal property being sold first. Runge v. Brown, 29 Neb. 116, 45 N.W. 271 (1890).
A civil writ of execution by itself does not justify the search of a home which would otherwise be an illegal search. State v. Griess, 11 Neb. App. 389, 651 N.W.2d 859 (2002).