Scire Facias: Everything You Need to Know
Scire facias is a judicial writ requiring a person to appear in court and argue why a judgment against them shouldn't be annulled, vacated, executed, or enforced.5 min read
2. A Brief History of Scire Facias
3. Why Is Scire Facias Important?
4. Scire Facias Across the Country
5. What's Contained in a Writ of Scire Facias?
6. Are There Other Meanings for Scire Facias?
7. Frequently Asked Questions
Updated November 12, 2020:
What Is Scire Facias?
Scire facias is a judicial writ requiring a person to appear in court and argue why a judgment against them shouldn't be annulled, vacated, executed, or enforced. While federal law has abolished this practice, many states still use scire facias. In most cases, this is in reference to a payment from a judicial case. Scire facias is used by plaintiffs to extend a court order if the time to pay the amount expires.
A Brief History of Scire Facias
Scire fascia originated in England. Later, American colonists adopted the policy. It was first used to repeal letters patent. The king or queen issued letters patent to give exclusive rights to an inventor. If a person thought a patent was invalid based on an existing patent or false information, that person could ask the court to ask the patent holder to argue their case. The patent holder could ask for a jury trial to resolve issues, but only the court could make a final ruling.
Today, scire facias no longer deals with patents. In patent law, only a person holding or infringing on a patent can be involved in a court case about the patent. Most often, scire facias deals with the enforcement and collection of judgments.
Why Is Scire Facias Important?
If a plaintiff earns a monetary judgment from a defendant in a civil case, a judge sets forth a court order that requires the defendant to pay by a certain date. However, this court order can lapse if it remains unpaid for the amount of time specified by the court. Before the final date approaches, the plaintiff may file a motion in court to extend the court order. If the plaintiff fails to do so, they can still file a writ of scire facias. This revives the motion and forces the defendant to appear in court.
When the defendant appears in court, they must defend why they shouldn't have to make any or further payments. This requires the defendant to:
- Show records of payment.
- Prove he/she owes nothing to the defendant.
- Present evidence to shift the burden of proof to the plaintiff.
If the defendant fails to defend his/her reasons for not paying the amount owed, the court executes the original judgment. To satisfy the judgment, the defendant must:
- Provide a financial status document.
- Sell assets to earn money for the payment.
- Take any other steps to provide payment.
Case law also holds that the monetary amount in a writ of scire facias must have a specific amount. This includes principal and interest.
Scire Facias Across the Country
Because of the complex nature of scire facias, the federal government abolished the practice. In federal court, a plaintiff may only file a motion to extend the judgment. However, several states still use it with their own rules.
- Connecticut: While still officially in use, the writ of scire facias has been replaced. A creditor's bill is the new way to settle monetary judgment cases. If the defendant can't pay, this bill tries to find a fair solution.
- The writ of scire facias is still used here. Under the Civil Practice and Remedies Code, the writ has to come to court within two years of the judgment dormancy.
- Post-judgment interest rates are capped at 18 percent.
- Once filed, a writ of scire fascia gives the defendant one year and one day to disprove or avoid the debt owed. This is also known as a scire fascia ad disproban dum debitum.
- This is also used in the mortgage industry but is known as a municipal claim. This requests a mortgagor to pay any overdue payments.
- A copy of the writ is displayed in the county court of filing for four weeks.
- If the defendant fails to show, the judgment continues for another 10 years.
- It can only be filed in the county where the original judgment was filed.
What's Contained in a Writ of Scire Facias?
The written form of scire facias contains:
- Names of creditors and debtors
- Name of the court and case number of the original judgment
- Date of petition filing
- The country where the petition is filed
Are There Other Meanings for Scire Facias?
In addition to the writ of scire facias for monetary judgments, it can also refer to a type of mortgage foreclosure. If a mortgagor defaults on a payment, the lienholder or lender can file a writ of scire facias. The mortgagor must then show up in court. At this hearing, the mortgagor must give reasons why their property shouldn't be sold to satisfy the debt.
In instances of bank levies and wage garnishments, creditors can get a writ of scire facias on employers. This forces the employer to garnish the wages of one of their employees. This is a conditional judgment as well. It isn't final until the employer appears in court to argue the wage garnishment. The outcomes of this action include:
- The employer appears and doesn't have an excuse for lack of answer or payment. The employee lying about the garnishment is not a defensible argument. The creditor and employer must then come to a consensual payment.
- The employer appears and has a valid excuse. Typical useful excuses state that the employee had another garnishment or the employee was not employed at the time of the request.
- The employer no-shows. This allows the creditor to get the full judgment for the wage garnishment.
Other types also include:
- The legal hearing that arises from a writ of scire facias.
- Scire facias ad rehabendam terrain. This allows a debtor to get their land back after paying the plaintiff.
- Scire facias for the crown. In English law, the crown may file this writ if a debtor is insolvent.
- Scire facias quare restitutionem non. This occurs when a judgment occurs and payment is not made, and later the judgment is overturned on appeal. This must be filed before any restitution can occur.
Frequently Asked Questions
- What's the difference between revival and renewal?
Renewals keep judgments going before they lapse. A revival takes a ruling and brings it back to life. Both a writ of scire facias and a suit on the debt work for these purposes. A writ of scire facias revives a judgment. However, a new judgment cannot be made except. Only a new execution on an original judgment can result.
- How does a plaintiff issue a writ of scire fascia to the defendant?
The plaintiff must serve the defendant with a copy of the motion and a citation. They must also show that they did this step through a return of service filed with the court. "Reasonable notice" is required for a writ of scire facias to a defendant.
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