10.12 Judicial Proceedings

10.12.1

In General

Title to real property is unmarketable if the title is dependent upon defective judicial proceedings, unless there exists specific statutory legislation or local title standards designed to cure or legalize the errors, irregularities, or mistakes afflicting the proceedings. Because of this, the necessity for a meticulous and accurate examination of the judicial proceedings upon which the validity of judgments, decrees, and derived conveyances is based cannot be overemphasized.

Errors or irregularities contained in judicial proceedings make the judicial proceedings subject to two different categories of attack: direct and collateral.

A direct attack is a continuation of the original proceeding which decided the issue involving the real estate. A collateral attack involves a separate proceeding. The difference between these two kinds of attack is extremely important. Methods of direct attack usually have time limits. On the other hand, collateral attack usually has no time limits and is used to relitigate the issue decided by the first court.

Without exception, the examination of court proceedings requires complete knowledge of local and federal procedural statutes and regulations.

10.12.2

General Guidelines For The Examination Of Judicial Proceedings

Lis Pendens Notice

Does state law require the filing of a lis pendens notice at the time or within a specified time after the filing of the complaint?

If required, has it been properly and timely filed?

Jurisdiction Over the Subject Matter

Is the court empowered by statute to adjudicate the subject matter of the controversy at issue? No state court has jurisdiction over land located in another state.

Necessary Parties Defendants

Have all the necessary parties been named as defendants?

Have considerations been given to whether it is necessary to name as defendants the:

  • Owners spouses?
  • Parties in possession and persons under whom they claim?

Special Parties as Defendants

Has it been considered that when naming any of the following parties as defendants, it is necessary to conform with certain other procedural regulations and requirements?

Incompetents
Minors
Persons under disabilities
Convicts
Personal representatives
Guardians
Conservators
Trustees and beneficiaries under trust agreements
Unborn persons
Unknown owners
Deceased persons
Estates
Heirs, devisees, legatees
Personal representatives, executors, administrators
U.S.A.
States
Quasi-public corporations
Churches and associations, either incorporated or unincorporatedd
Lessees and tenants in possession
Judgment creditors
Corporations, partnerships
Defunct corporations and stockholders
Trustees in bankruptcy
Register or recorder of deeds

Jurisdiction Over the Parties

Have all the necessary defendants been served with notice of the action in conformance with the constitutional due process requirements?

Kind of Service of Process

Does the kind of service comply with the local statutory procedures?

Personal service
Substituted service
Service by mail
Service on a registered agent
Service by publication
Service outside the state
Affidavit of Service

Does the record show an affidavit of service or statement of service and return of the summons by a sheriff or other officer authorized by law?

Sworn Statement in Regard to Service

Does the record show a sworn statement of facts showing compliance with the statutory requirements for notice by publication in cases involving absent or unknown parties (if any)?

Appointment of Guardian Ad Litem

Has the court appointed a guardian ad litem for the purpose of representing infants, incompetents, or any other parties under disability?

Action Against the United States

Does federal statute grant permission to make the United States a party defendant? (Title 38 U.S.C.A. section 2410)

Action Against the State

Does state law consent to making the state a party defendant?

Soldiers' and Sailors' Civil Relief Act

Is the decree in compliance with the provisions of the Soldiers' and Sailors' Civil Relief?

Decree

Has a decree been entered?
Has the decree been entered prematurely?
Does the decree contain jurisdictional finding?
Is there any finding of an undisclosed interest or lien?
How does the ordering or decretal part of the decree relate to the allegations contained in the compliant, answer, and cross-claim (if any)?
To what extent does the decree affect the real estate records?

Appeal

Is the decree final?
Has the statutory time to appeal expired?
Has any appeal motion been filed?

Parties Who Have Been Served by Publication

Has any party been served by publication?
Is there any additional statutory right granted to a party served by publication?
If there is any such right, has the right expired?

Recording of the Decree or Judgment

Does a certified copy of the final decree or judgment need to be recorded in the real estate records of the county where the property is located?

10.12.3

Judicial Sales

A judicial sale is a sale made in pursuance of an order, judgment, or decree of a court of competent jurisdiction, by an officer legally appointed and commissioned by the court to sell the property.

It should be noted that there is a well-defined distinction between a judicial sale and an execution sale. An execution sale is a mere ministerial sale made by an officer under statutory authority and is based on a money judgment and a writ of execution.

10.12.4

General Guidelines For The Examination Of Judicial Sales Made Pursuant To Court Decrees

  • Is the decree final and nonappealable?

  • Does the decree provide for a judicial sale of the property?

  • Does the decree specifically establish the form of sale and the conditions that will regulate it?

  • Have all of the following conditions been met?

    Form of notice of sale

    Parties entitled to notice of sale

    Advertisement requirement

    Day of sale

    Time of sale

    Place of sale

    Bidding

    Sale

    Report of sale

    Confirmation of sale

  • Is the order of confirmation of sale final and unappealable?

  • Is the order of confirmation of sale concordant with the form and condition of sale established by the decree?

  • Is there any outstanding redemptive right in favor of any party?

  • Has a conveyance of the property been properly executed, acknowledged and recorded?