Office Hours 8:00-5:00 M-F
A Writ of Execution is an order from the Court following an entry of judgment in Small Claims or Circuit Court. Once a judgment has been entered and the statutory time frame has passed, a Plaintiff may obtain the Writ of Execution from the Clerk of Courts.
The Writ must then be delivered to the Sheriff’s Office. Once an execution is received at the Sheriff’s Office, we have 60 days to affect the writ. If there is more than one execution for the same defendant, they must be worked in the order they were received. From time to time this order may be deviated from due to a special circumstance or Court Order. The Brown County Sheriff’s Office processes approximately 40 executions per month
When the Writ of Execution is received, our first step is to research property and bank accounts in the defendant’s name. After the research, it is given to the deputies. The Deputy will review the research, read any attachments and make a determination as to which way to proceed.
Costs - There is a statutory $95 Sheriff’s fee to process an execution. This $95 must be paid regardless of satisfaction and each time the execution is issued. Other costs that may arise include filing fees, certified mailings, publication fees, and towing. Any costs incurred are the responsibility of the creditor (Plaintiff). Generally, costs should be covered by the proceeds of any levies done or monies collected, if there are costs remaining you must pay them.
Levies - Once property has been located and is found to be free of encumbrances, the property is seized by taking the property into physical custody of the Sheriff, this is called a Levy (SDCL 15-18-20). The property is stored by the Sheriff’s Office until it is either released by Court Order or sold at auction. A Notice of Levy (SDCL 21-19-3) then needs to be served on the Debtor (Defendant). If the Debtor is not available when the Levy is done, legal service may be made by certified mail to the last known address of the debtor. If the Debtor is served personally they have five days from the date of service to respond to the Levy. If the Notice of Levy was served by certified mail the Debtor has eight days from the date it was mailed.
Claim of Exemption - Besides property which falls under Absolute Exemptions (SDCL 43-45-2 and 43-45-3), SDCL 43-45-4 grants the head of a family $7,000.00 and a single person $5,000.00 of property that is exempt from levy to satisfy a judgment. By filing a Claim of exemption, the Debtor is saying the property levied on falls within this amount granted by law. The debtor must serve both the Sheriff’s Office and the Creditor with a copy of the Claim of Exemption. It is then up to the Creditor to accept or deny the claim. If they deny the claim, they need to go to court for a ruling if the property indeed falls within the amount granted by law.
Real Estate - After all over options have been exhausted we may levy on Real Property. Research will show the existence of any real property in the county. The Register of Deeds office will have the records to show if the property is mortgaged. Each homeowner is allowed $60,000 as a Homestead Exemption which is exempt from levy. If there is more than $60,000 in equity we may do a levy. The homestead SDCL is as follows:
43-45-3. Homestead absolutely exempt — Extent of exemption when homestead sold. A homestead:
As defined and limited in chapter 43-31, is absolutely exempt; or
In the event such homestead is sold under the provisions of chapter 21-19, or is sold by the owner voluntarily, the proceeds of such sale, not exceeding the sum of sixty thousand dollars, is absolutely exempt for a period of one year after the receipt of such proceeds by the owner. Such exemption shall be limited to one hundred seventy thousand dollars for a homestead of a person seventy years of age or older or the un-remarried surviving spouse of such person so long as it continues to possess the character of a homestead.
Sheriff’s Sales – After the time period for the plaintiff to file claims of exemptions has expired the property must be sold at a public auction to the highest bidder. We must publish the sale notice in the largest paper in the county. It must be published once 10 days prior to the sale in the case of personal property. Notices for real property must be published four times prior to the sale.
Auctions on real property can be held at the front door of the courthouse. Auctions on personal property are generally held at the impound lot on 1st Avenue Southeast in Aberdeen. We must accept any reasonable bid.
Once the sale is complete, the monies are returned to the creditor. All fees and costs are deducted from the amount collected before it is returned.