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Legally Speaking

 

Issue: June, 2008
Author: Bret T. Allred and J. Philip Bott

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A Practitioner’s Overview of Enforcing a Civil Money Judgment

A civil money judgment’s true value is realized through an effective plan for post-judgment enforcement. This article will discuss the methods to discover the existence and location of a judgment debtor’s (“Debtor”) property as well as the three most common methods for obtaining and selling the property: Garnishment, Continuing Garnishment, and Execution. The history, development, equitable/legal theories, or how to address exceptional circumstances of enforcing a civil money judgment (“Judgment”) will not be discussed.


Finding the Assets
There are a number of non-judicial means available to locate the assets of a Debtor. County Treasurer’s and Assessor’s offices have public records relating to vehicle and property ownership. There are also subscription services to find location and asset information on Debtors via Internet-hosted databases. However, these services tend to be expensive and are more targeted toward firms which participate in enforcement activities on a large scale. Individual cases may justify the use of private investigators, but the cost of such a service would have to be balanced against the potential for return.

Judicially enforced methods of locating assets are made available in the Wyoming Statutes (“WS”) and Rules of Civil Procedure (“W.R.C.P.”). Wyoming Statutes §1-17-402 and §1-21-517 allow the judgment creditor (“Creditor”) to “obtain discovery by interrogatories, depositions or otherwise, from any person, including the judgment debtor, in accordance with the Wyoming Rules of Civil Procedure.” The scope for post-judgment discovery is quite broad, limited only by the definition of “Property subject to execution.” A post-judgment discovery request may reach third parties and impose upon them an obligation to hold all assets in their possession belonging to the Debtor for the benefit of the Creditor. Unfortunately, discovery requests are often ignored, forcing the Creditor to rely on enforcement under Rule 37 of the W.R.C.P.


Writs of Garnishment
In general, Writs of garnishments (“Garnishments”) are governed by WS §§1-15-401 – 1-15-425. Garnishments are directed to third-parties (“Garnishee”), usually a bank or a holder of the Debtor’s accounts receivable. Garnishees are required to turn over all property currently in, or which comes into, the Garnishee’s possession during the thirty days after the service of the Garnishment , subject to the Garnishee’s right of setoff.

A Garnishment is issued by the clerk in the name of the state of Wyoming and is directed to the person identified by the Creditor. Notice of the Garnishee’s duties toward the Debtor’s property is contained within the Garnishment. Once served, the Garnishee is required to return a timely answer and all non-exempt property to the court. If the Garnishee fails to answer, the Creditor may be able to obtain a judgment against the Garnishee. The Garnishee may be ordered to appear before the court and submit to an examination to determine the amount of the Garnishee’s liability.


Writs of Continuing Garnishment
Writs of continuing garnishment (“Continuing Garnishments”) are orders to an employer to withhold earnings of the Debtor for successive pay periods for the satisfaction of the Judgment. In general, Continuing Garnishments are governed by WS §§1-15-501 – 1-15-511. The amount that can be withheld is subject to strict requirements and limitations as set forth in §1-15-511. Continuing Garnishments are valid for 90 days and may require the Garnishee to provide to the court multiple successive answers and/or payments.

The contents of a Continuing Garnishment follow the same pattern as a general Garnishment, except that it must also include an explanation of the garnishment formula and notice of the Debtor’s right to object to the calculation. A Continuing Garnishment is served upon the Garnishee (including a copy for the Debtor ) using any acceptable method for personal service under Rule 4(d), or by Certified Mail in accordance with Rule 4(l). The Garnishee is then required to return an answer and the withheld funds to the court. Generally, the courts have enforced Continuing Garnishments using the same statutes as general Garnishment. If the Debtor disputes the computation of the non-exempt wages, an objection can be filed in writing and a hearing may be set on that objection.


Writs of Execution
The statutes relating to property executions are in a state of disarray. Many of the statutes are repetitive and often in direct conflict with each other. This is an introduction to the laws of execution, bearing in mind the statutory conflicts. The personal property writ of execution (“Execution”) is issued by the court where the Judgment was rendered and can be concurrently issued to sheriffs of multiple counties. The sheriff, upon receipt of the Execution, is obligated to “proceed immediately to levy the writ upon the ... personal property of the debtor.” All actions taken by the sheriff must be endorsed upon the Execution prior to its return to the court. If the execution fails due to the sheriff’s dereliction of duty, the Creditor can bring an action in amercement against the sheriff. In our opinion, such an action should only be taken when absolutely necessary because it is important to maintain a good relationship between the bar and law enforcement. However, the rules of ethics may, at times, compel the Creditor’s attorney to engage in such an action.

Wyoming Statutes define the type of property subject to Execution, specifically, “all property of the judgment debtor, both real and personal or any legal or equitable interest therein ...” which is not exempt by law. This language, liberally construed, creates an immense pool of property from which to draw. Furthermore, there is no statutory requirement for the Creditor to specifically identify the property; however, many jurisdictions have recognized “special executions” whereby the Creditor can limit the scope of the property subject to Execution, which limits the Creditor’s potential expenses.
After seizure, notice of the execution sale must be published in a newspaper in accordance with the Wyoming Statutes. This notice must include a description of the property to be sold, along with the date, time, and location of the sale. No less than 10 days after the notice, property is sold at public auction to the highest bidder unless a private sale is ordered by the court. Certain limitations on the public auction exist, such as the executing officer cannot participate as a buyer and there must be at least two bids before the property can be sold. The proceeds of the sale are to be applied toward the satisfaction of the judgment after deducting all costs and fees of the sale.

An Execution can be costly to the Creditor. Ideally, the proceeds from the sale should cover the costs involved with a sufficient amount remaining to satisfy the Judgment. However, when the seized property remains unsold or sells for a disappointing price, the Judgment can remain wholly or partially unsatisfied and the sheriff’s expenses unpaid. The sheriff’s costs are then the responsibility of the Creditor. The sheriff is also entitled to receive, as compensation, a portion of the proceeds or a percentage of cash seized.

Exemptions also limit the profitability of an Execution. Title 1, Chapter 20 of the Wyoming Statutes contains the majority of the exemptions that may apply. It is the Debtor’s duty to file a request for exemption within ten days from the seizure of property. The court shall set a hearing within five days to determine the exempt status of the property. Most exemptions protect only a limited value in the property; therefore, the property value must be determined by three disinterested appraisers selected by the sheriff. Many sheriffs are familiar with this process and obtain the appraisals in an efficient and timely manner.


Conclusion
If the goal is to make the client whole, a winning legal argument is not enough. Enforcement of a Judgment requires patience, planning, and coordination with the court and sheriff. It is also strongly recommended that a judgment enforcement strategy be discussed with the client and decided before filing suit. The client should consider the costs, risks and efforts involved whether the intention is to pursue enforcement in-house, or to outsource the enforcement to a specialist.

Bret T. Allred graduated from the University of Wyoming College of Law in 2004. He is now a managing attorney at Wilkerson & Bremer, P.C. in Powell, Wyoming.

J. Philip Bott graduated from the S.J. Quinney College of Law at the University of Utah in 2006. He is now a managing attorney at Wilkerson & Bremer, P.C. in Powell, Wyoming. He is also licensed in Utah.


Copyright © 2008 – Wyoming State Bar

     

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