How to Conduct a Sheriff’s Sale of Real Property in Tennessee: It Depends on Who You Ask

Many years ago, the Tennessee Bar Journal ran an article by Knoxville legal luminary Don Paine called “Practical Advice for Collecting a Judgment.”  Clearly, this article got my attention.

In it, Paine outlines how to obtain a judgment lien on real property and how to ultimately sell the property pursuant to that lien. His analysis begins and ends with Tenn. R. Civ. P. 69, which provides that a judgment lien creditor shall file a motion requesting that the court order a sale. In fact, Rule 69.07(4) specifically says “[a]s long as a judgment lien is effective, no levy is necessary”–just file a Motion.

Rule 67.04 provides a specific procedure for a Sheriff’s Sale of real property (i.e. 30 days advance notice; 3 total publications; distribution of proceeds).

But, elsewhere in Tennessee statutes, there’s a different procedure for sheriff’s execution sales of real property. Tenn. Code Ann. § 26-5-101 lays out its own set of rules and requirements, which are differ in minor ways to Rule 69 (i.e. 20 days advance notice).

And, having done my own Sheriff’s Sale earlier this summer, I chuckled when I saw Paine’s article. After I had a Rule 69.07 Motion granted and asked the Clerk to initiate the sale process, the Clerk and Master on my case ignored my Order Granting Motion for Sale, telling me, instead, I need to accomplish the sale by levy and execution.

Side note: One of the things that makes collections interesting is that you’re not just dealing with a Judge anymore, you’re dealing with a Clerk, who may have their own opinions about how things are done.

So, how do you reconcile these differing procedures? And, trust me, these mechanical / procedural issues come up all the time.

Paine’s answer is simple: Under Tenn. Code Ann. § 16-3-406, when a Rule is in conflict with any other law, the Rule prevails.

But, as a practical matter, try telling that to the Clerk, when they say “You need to file a Levy.”

On my sale, here’s what I did: I did both. I had an Order and then issued a Levy on the real property, pursuant to my Order. When the requirements differed, I used the procedure that complied with both.

Sometimes, being right is less important than getting the job done.

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Holding a Car Pursuant to a Mechanic’s Lien Doesn’t Violate the Automatic Stay

Generally, if you’re a creditor and you have possession of a bankrupt debtor’s possessions, you have to give it back when they file bankruptcy. But not always.

Today, I’m talking about mechanic’s liens.

As you’ll remember in Tennessee, Tenn. Code Ann. § 66-19-101 allows a mechanic to assert a lien for repairs performed on a vehicle, and, in order to preserve the super-priority perfection in the vehicle, the mechanic has to retain actual, physical possession of the car.

But, what about when the customer files bankruptcy, and the demand to turnover the vehicle comes from a Bankruptcy Attorney, alleging a violation of the automatic stay?

Bankruptcy Courts say that the mechanic can still hold on to the car.

Certain actions are excepted from the automatic stay, including “any act to perfect, or to maintain or continue the perfection of an interest in property to the extent that the trustee’s rights and powers are subject to such perfection under section 546(b)”  11 U.S.C.A. § 362(b)(3). Section 546(b) limits a trustee’s avoidance powers under 11 U.S.C.A. § 549 with respect to “the maintenance or continuation of perfection of an interest in property … [i]f a law … requires seizure of such property … to accomplish such perfection, or maintenance or continuation of perfection of an interest in property[.]” 11 U.S.C.A. § 546(b). Statutory liens such as mechanics liens fall within the scope of this exception.

That’s a lot of legal citations, so here’s the take away: if the repairman holds a statutory mechanics lien upon the vehicle for the repairs done, then the retention of the vehicle–even after the Bankruptcy Case is filed–does not violate the automatic stay.

In that case, the Debtor must either propose to pay the lien, fight it,  or give up the car. Good news for mechanics.

Get Your Law School Applications In: Welcome to the Profession

It’s that time of year when English, Philosophy, and History majors start wondering what they’re going to do after graduation.

If you’re thinking about going to law school, you’re welcome to read the entirety of this New York Times article, The Lawyer, the Addict,  on substance abuse in the legal profession.

Or, you can read just this part, under the heading, “Rewarded for Being Hostile.” After noting that lawyers “have the highest rate of depression of any occupational group in the country,” there’s this:

Yes, there are other stressful professions…Being a surgeon is stressful, for instance — but not in the same way. It would be like having another surgeon across the table from you trying to undo your operation. In law, you are financially rewarded for being hostile.

I love that image. I mean, I also hate it, as a lawyer who has to deal with lawyers all day long.

The law is a strange profession. Look at the ads in the Yellow Pages, and there they are: “Hostile”; “Aggressive”; “Take No Prisoners”; “Bulldog.”

Aggressive

Here is a law firm using, literally, an angry gorilla to advertise their services. (I found another one with a lawyer holding a ninja sword, but I didn’t post that.)

This isn’t the part where I say that I hate my job, but it’s a note that the legal profession is a strange one.

The next ten years will be interesting, as more of the “old school” attorneys retire and make way for the millennials, who, if we believe the news stories, value quality of life and collaboration. Maybe, we’ll see a decrease in this “law is war” mentality.

But, with a generation raised on social media snark, I wonder whether we’ll see a continuation of the broader cultural shift to a lack of civil behavior, particularly with the wide-spread use of e-mail communication as the primary means of lawyer to lawyer communication and long-distance / remote practice.

What I’m saying, in the end, is: Welcome to the Jungle, new lawyers.

 

I Deactivated Facebook, and I Miss it for Business Reasons (Sort of)

I rolled my eyes, last month, when I saw a few of the New Year’s resolution posts on–and about–social media.

“Goodbye all. I’m deleting [insert name of social media service]. I want to engage more with friends in real life, [etc.]”

But, here I am, a month later, and I’m one of those people. I’ve deleted my Facebook account.

I’ve taught seminars on the pitfalls of social media in family law cases.  (Spoiler alert: If you were born after 1985 and are getting a divorce, it’s already too late for you.)

I’ve taught seminars on the value of social media for lawyer marketing. (Spoiler alert: People don’t want to connect with, hear from, or see pictures of their lawyer on Facebook.)

I won’t go into all the details, but, frankly, I’m sick of all the noise, and, by “noise,” I mean all the ads, and also all the likes, comments, and posts of “friends of friends” (which, in non-Facebook speak, translates to “people who I don’t know”). Simply put, there isn’t a point to any of it.

So, here I am, 24 hours into this grand experiment. And I miss Facebook a little…for business reasons.

I got a call from a potential client, and, using his phone number, I instinctively went to Facebook to search his cell number and look at his Facebook page (i.e. my “Is this a Crazy Person” test).

And, yes, begrudgingly, I’ll admit that Facebook has been occasionally useful for work purposes.

So, here I am, a day into the experiment, and the better play is to delete the App. Or just deactivate Facebook.