EXECUTION PROCEDURE
JUDGMENT CREDITOR BOOKLET
See Booklet CIV-503 For Instructions About Executing On The Alaska Permanent Fund Dividend
Court staff generally can inform you about court procedures, court rules, court records, and forms. Court staff must remain neutral and impartial. They are not allowed to give legal advice. Court staff cannot: · advise you how statutes and rules apply to your case, · tell you whether the documents you prepare properly present your case, · tell you what the best procedures are to accomplish a particular objective, or · interpret laws for you. If you need help with your case, you should talk to a lawyer.
JUNE 2009 ALASKA COURT SYSTEM
This booklet and most of the forms mentioned in it are available on the court system's website: www.state.ak.us/courts/forms.htm
CIV-550 (6/09)(yellow cvr)
© Copyright 1984, 1985, 1986, 1988, 1989, 1990, 1991, 1993, 2000, 2001, 2002, 2004, 2006 , 2007 , 2008 and 2009 Alaska Court System
All rights reserved. Permission to reproduce the contents of this booklet, but not for profit, is hereby granted to governmental and non-profit educational institutions. However, reproduction of any part of this booklet for commercial purposes without the express written permission of the Alaska Court System is strictly prohibited.
TABLE OF CONTENTS Page Introduction................................................................................................ ii I. II. Brief Outline of Execution Procedure............................................ 1 Execution Procedure....................................................................... 2 A. B. C. D. III. IV. Executing on Debtor's Earnings......................................... 4 Executing on Debtor's Property.......................................... 9 Executing on Certain Kinds of Personal Property .......... 15 Judgments to Collect Specific Personal Property ........... 21
Serving Documents....................................................................... 21 How to Locate Debtor's Assets..................................................... 28 A. B. C. Places to Look ..................................................................... 28 Judgment Debtor Hearing ................................................. 29 Formal Discovery Procedures ............................................ 31
V. VI. VII.
Other Remedies ............................................................................ 32 Creditor's Duty to Acknowledge Satisfaction of Judgment ....... 34 Other Information ........................................................................ 35
VIII. Claims Enforceable Against Exempt Property ........................... 37 IX. Glossary......................................................................................... 39
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INTRODUCTION Execution procedures are complicated. This booklet is a basic explanation of the steps generally involved. It is not, however, a complete statement of everything there is to know about how to collect the amount you are owed after you win a judgment in a court case. For more information, you may want to read the Alaska Statutes on execution procedure: Chapter 35 and Chapter 38 of Title 9 of the Alaska Statutes (abbreviated as AS 09.35.010 etc. and AS 09.38.010 etc.). Be sure to check the supplement to see if any of the statutes have been amended. You may also want to read Civil Rule 69 in the Alaska Rules of Court. You can find the statutes and court rules in the State Law Library at the Anchorage court, in the court libraries at several other court locations, and in many city libraries. They are also available on the Internet. You can find links to them on the court system's website: www.state.ak.us/courts
JUDGMENT DEBTOR BOOKLET (CIV-511), available at all state
For more information about the debtor's rights, you should read the
courthouses and on the court system's website.
You may want to contact a lawyer for assistance. If you do not have a lawyer, the Lawyer Referral Service of the Alaska Bar Association may be able to help you find a lawyer. Call 272-0352 in Anchorage or 800770-9999 if you are outside Anchorage (toll free within Alaska). There may be some words used in this booklet which are unfamiliar to you or which have special meanings when used in this type of legal procedure. The Glossary, which begins on page 40, may be helpful to you. Note: This booklet describes the procedures to be used by general creditors (that is, creditors who do not have security interests in their debtors' property). Creditors who have a security interest in particular property owned by the debtor may have to follow special procedures in executing upon that property if they wish to assert their rights under the security interest. See AS 09.38.070. Also see footnote 23 on page 22.
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I. BRIEF OUTLINE OF EXECUTION PROCEDURE If you have won a judgment and the debtor has failed to pay what the debtor owes you under that judgment, you may use execution procedures to try to collect your judgment. Briefly, the most common type of execution procedure works like this: 1. 2. You (the judgment creditor) ask the court for a Writ of Execution. The court issues the Writ of Execution and gives it to a process server picked by you from an approved list. You will have to pay the process server. The process server takes the Writ of Execution and uses it to seize some of the debtor's property (for example, money in the debtor's bank account). Note: you have to tell the process server where to find the debtor's property. The property is placed in storage at your expense by the process server, or if it is money, it is delivered to the court for safekeeping. The process server must then find the debtor and give the debtor various papers which notify the debtor that the property has been seized and that the debtor may have rights which will allow the debtor to get the property back. These rights are called the debtor's "exemptions." The debtor has a certain amount of time within which to contact the court to claim exemptions. If the debtor does so, the court will decide whether to grant the exemptions. If the debtor does not claim any exemptions, the property may be sold at public auction in order to pay you.
3.
4.
5.
6.
As you will see in the following pages, execution procedures are frequently more complicated than this. Also, depending on the property you want to seize, the steps may be somewhat different. The above outline should, however, give you a general idea of the steps involved.
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II. EXECUTION PROCEDURE Preliminary Matters A court case ends with the judge's decision as to who won. decision will always be in writing. It is called the "judgment." The judge's
If you win a judgment which says someone owes you money, you are called the "judgment creditor." The person who owes the money to you is called the "judgment debtor." These terms will be used throughout this booklet, so you should get used to them. When you win your judgment, you should ask the judgment debtor to pay you. The debtor may be willing to pay you but may need some time. If you want to, you can ask the debtor if he or she would be willing to sign an agreement to make installment payments to pay off the judgment. The Court System provides a form for this in small claims cases called the Stipulation For Installment Payments (form SC-18). 1 Both you and the debtor must sign it and then it must be approved by the judge. As long as the debtor makes the payments, you will not be allowed to use execution procedures to collect the money owed to you. If the debtor fails to make the payments, you can begin execution procedures. 2 Sometimes you cannot begin execution procedures after winning your judgment. For example, the debtor may get a "stay of execution" from the court by filing an appeal of the judgment and posting a supersedeas bond. Note that the debtor's filing of an appeal will not by itself prevent you from starting execution procedures. In order to stop execution procedures, the debtor must not only file the appeal, the debtor must also ask the court for a "stay of execution" of the judgment. Before ordering this "stay," the court will require the debtor to give the court a bond (called a "supersedeas bond") or make a cash deposit to assure that the judgment and all costs will be paid if the debtor loses the appeal. If no bond or cash is posted and no "stay" is ordered, you can proceed with execution procedures. Another event which may prevent you from beginning execution procedures is the debtor's filing of bankruptcy in federal court. Note that there may be other circumstances which might prevent or delay you from beginning execution procedures in your particular case. If it looks like the debtor is not going to pay you voluntarily and no "stay of execution" has occurred, you can begin execution procedures.
1 2
Parties in formal civil cases can use this form as a guide. To begin execution procedures you will first have to file with the court an affidavit (a sworn written statement) that the debtor has not complied with your installment payments agreement. 2
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
To Begin Execution Procedures 1. 2.
WRIT OF EXECUTION.
Go to the clerk's office. Tell the clerk you have a judgment and want a
There is usually a brief waiting period after the judgment is distributed before a WRIT OF EXECUTION can be issued. You will need to tell the clerk your case number so the clerk can check the file to see when your judgment was distributed. (This date is shown at the bottom of the judgment in the clerk's certificate of distribution.) The clerk can tell you if the required time period has passed. If the required time period has passed, the clerk will then ask you which of the following four categories of property you are going to attempt to execute on: a. b. c. debtor's earnings debtor's property (money, some personal property and real estate) the type of debtor's personal property which is called by the statutes "personal property subject to value limitations" (household goods, clothes, books, family portraits and heirlooms of particular sentimental value to the debtor, jewelry, professional books and tools of trade, pets and one motor vehicle) debtor's Alaska Permanent Fund Dividend. [Reminder: See booklet CIV-503 for instructions about how to execute on the PFD. There are no instructions in this booklet about PFD executions.]
3.
d.
The clerk needs to know this in order to know which set of forms to give you. There are different procedures for seizing each of these categories of property. While deciding what property to seize, you should keep in mind that the process servers in your area may not be willing to seize some types of property because they do not have safe storage areas available where the property can be protected until it is sold at public auction. You may want to inquire about this before deciding what property you want to try to execute upon. You should also ask the process server about the fees for storing and selling the property if anything other than cash is seized. Also, check the JUDGMENT DEBTOR BOOKLET to see if the debtor may claim an exemption for the property you are thinking of seizing. The first three sections which follow, Sections A, B and C, describe the procedures for executing upon the first three categories of property listed above. These are the procedures you must follow if your judgment is for an amount of money. Section D on page 22 explains a fourth kind of procedure, the procedure to follow if your judgment is for a specific item of personal property rather than for an amount of money.
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A. EXECUTING ON DEBTOR'S EARNINGS If you want to seize the debtor's earnings 3 while they are still in the possession of the debtor's employer, use the procedure described in this section. If, however, the debtor has already received the earnings and you want to seize the cash in the debtor's possession or in the debtor's bank account, use the procedure described in Section B, beginning on page 9. Note: Some types of income that appear to be earnings may actually be something else. For example, a crewman on a fishing boat may in some cases be an independent contractor rather than an employee. If so, there would be no employeremployee relationship, and the money the crewman receives might not be considered "earnings."3 If the money is not "earnings," the procedure described in Section B should be used. Note About Federal Employees. There are special procedures for seizing the wages of federal government employees. 4 The execution paperwork must be served on the "garnishment agent" for the federal agency and additional identifying information about the debtor must be provided. 5 Step 1: Fill Out Forms When filling out forms, please type or print clearly and use black ink. Press hard so your printing will show through on all copies of each form. See the following illustration for how to fill out the tops of the forms.
IN THE DISTRICT / SUPERIOR COURT FOR THE STATE OF ALASKA
1
Dan Gable Plaintiff(s), vs.
AT ANCHORAGE
2
) ) ) ) ) ) ) ) ) )
3
4
CASE NO. 3AN-09-1234 SC FORM NAME
Hayden Fry Defendant(s).
ILLUSTRATION NO. 1. At the top of each form, 1 cross out either "SUPERIOR," or "DISTRICT," depending on which court issued your judgment. Then fill in 2 the court location, 3 the case name box, and 4 the case number. Be sure to write out the entire case number, including the letters at the beginning and at the end 3 4 "Earnings," as defined in AS 09.38.500(4), means money received by an individual for personal services and denominated as wages, salary, commissions, or otherwise. 5 USC 5520a. For active duty military, use the involuntary allotment procedure in 32 CFR 113.6 (Department of Defense Form 2653) instead of a writ of execution. For most other federal employees, see the procedures described in 5 CFR 582. Also see 42 USC 659 about garnishments for child support and alimony. Contact the agency to get the garnishment agent's name and address and any special procedures or information required. (Lists of designated agents are in Appendix A to 5 CFR 582 and Appendix A to 5 CFR 581.) Identifying information includes the debtor's full name, date of birth, social security number, official duty station, home address, and agency division or office. 5 CFR 582.203. 4
5
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
If you tell the clerk you want to try to seize the debtor's wages or salary, the clerk should give you the following forms to fill out: 1. Writ Packet a. CIV-501, INFORMATION FOR ISSUANCE OF WRIT OF EXECUTION Fill out the entire form. b. CIV-526, EMPLOYER'S RESPONSE TO WRIT OF EXECUTION FOR
GARNISHMENT OF EARNINGS
Fill out the top of the form and the "Address of Court" and "Name of Judgment Debtor" beneath the case name block. c. CIV-561, SERVICE INSTRUCTIONS FOR WRIT OF EXECUTION FOR
GARNISHMENT OF EARNINGS
Fill out the entire form (or your process server's version of this form). Before filling out the form, read Step 2 below and pages 2328 about serving documents. You may also want to discuss the procedures with your process server. 2. Debtor's Packet a. CIV-530, NOTICE OF GARNISHMENT AND NOTICE OF RIGHT TO
EXEMPTIONS
Fill out the entire form (including the court's mailing address on page 2). If an attorney is helping you with the case, the attorney's name and address should be written in the space provided on page 2. b. CIV-531, CLAIM OF EXEMPTION FROM GARNISHMENT Fill out the top of the form. Step 2: Choose Type of Service
Writ Packet. The WRIT and the EMPLOYER'S RESPONSE must be served on (delivered to) the employer. Normally, these documents must be served on the employer by a process server or peace officer. 6 Follow the instructions for "Personal Service by Process Server" on page 23. Note: If the debtor is a federal employee, the documents may be served on the federal agency's "garnishment agent" by certified mail by the court clerk. 7
6 7 If there is no process server or peace officer available, you may file a written request asking the court to allow service on the employer by certified mail. 5 CFR 582.202 and Civil Rule 69(f)(1). See page 4 and footnotes 4 and 5 about additional requirements for federal wage garnishments. 5
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
Debtor Packet. The NOTICE and the CLAIM OF EXEMPTIONS must be served on the debtor either before or within 3 days after the debtor's wages are seized. 8 There are two ways to do it: (1) personal service by a process server and (2) certified mail. There will be a charge for either type of "service." In many cases, however, it will be better to use a process server so the papers will be served faster and so you will be more certain the papers will be delivered to the right person. The two types of service are explained on pages 23-28. Select one and follow the instructions. Step 3: File Forms With Court
After filling out the forms, return the Writ Packet to the court. Also, if you want the employer to send you a copy of the RESPONSE form after the employer fills it out, give the clerk a self-addressed, stamped envelope for this. If you want the Debtor's Packet served by process server or served immediately by certified mail, return the Debtor's Packet to the court with the Writ Packet and tell the clerk which kind of service you want. However, if you want the Debtor's Packet served by certified mail after the writ is served, keep the Debtor's Packet and bring it to the clerk at the time you want it mailed. Step 4: Clerk Processes Paperwork
The clerk will then complete the paperwork and see that the proper forms are either given to the process server or sent by certified mail. Step 5: Employer's Response
The employer must fill out the RESPONSE form (CIV-526) within 24 hours after receiving it and return it to the court. 9 The RESPONSE form will usually show how much money the employer will send to the court from the debtor's paycheck each payday until the judgment is paid in full. If the court has not received the RESPONSE form within about a week, you may want to ask the employer if the failure to return the form is due to an oversight or a misunderstanding. If the employer has some question about what is required, ask the employer to call the clerk of court. If the employer simply refuses to fill out the RESPONSE or return it to the court, you can ask the court for an ORDER TO SHOW CAUSE requiring the employer to come to court and explain the refusal to a judge. The Court System provides a form for this request in small claims cases called the REQUEST AND ORDER form (SC-26). 10
8 AS 09.38.080(c) 9 AS 09.40.060 and AS 09.35.110 10 Parties in formal civil cases can use this form as a guide. CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 6
Step 6: Proof of Service of the Debtor's Packet Proof that the Debtor's Packet was served on the debtor must be filed with the court before the court will release to you any money collected under the WRIT. 1. Process Server If the Debtor's Packet is served by a process server, the process server will file proof of service with the court. If you have any questions, you should contact the process server. 2. Certified Mail a. Small Claims Cases. If the Debtor's Packet is served by certified mail, the green postal receipt card will be returned to the court by the Post Office. Formal Civil Cases. If the Debtor's Packet is served by certified mail, the green postal receipt card will be returned to you. You must file it with the court along with an affidavit of service. If the envelope sent to the debtor is returned to you, see paragraph "e" (Debtor's Packet Not Served) on page (25) for what to do. Step 7: Claim of Exemption
b.
The NOTICE form (CIV-530) tells the debtor about the debtor's right to claim exemptions. The debtor has 15 days from the date the notice is received to claim exemptions. If the debtor wants to claim an exemption, the debtor must fill out the CLAIM OF EXEMPTIONS form (CIV-531) and file it with the court. If the debtor files a CLAIM form, the court will send you a copy of the claim and a form you can use to respond to the claim (CIV-516). You must file your response with the court within 10 days. The court will decide the claim based on the information submitted, or the court will schedule a hearing. If a hearing is ordered, the court will notify both you and the debtor of the date and time it will be held. At the hearing, the debtor has the responsibility of convincing the court that the debtor should be given the exemption. 11 You will have an opportunity to question the debtor and present any evidence you wish. If the debtor does not file a CLAIM within 15 days after receiving the NOTICE form, the court will ordinarily conclude that the debtor has given up any possible claims, and the court will send the money to you as soon as it is sure the employer's check has cleared the bank. However, the court will not send the money to you until the court has received proof that the CIV-530 NOTICE has been served on the debtor.
11 AS 09.38.080(f) CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
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Only part of the debtor's wages can be seized. The WRIT (form CIV-525) and the NOTICE (form CIV-530) both explain the automatic exemption the debtor gets. Step 8: Collection of Money
Once the WRIT is served on the employer, the employer should begin sending payments to the court. The court will hold the money in its trust account for about 30 days. This 30-day waiting period allows the court to be sure the check has cleared the bank and also allows the debtor time to object to the seizure of the wages. Unless ordered to do otherwise by the court, the employer should keep sending payments to the court on each of the debtor's paydays until the amount stated in the WRIT has been paid in full. Step 9: Supplemental Notice to Writ of Execution
After the amount stated in the WRIT is paid in full, you may want to try to collect interest on the debt from the date of the WRIT to the date the debt was paid. The interest rate is usually stated in the judgment. 12 You also may want to collect for the costs of having the WRIT and other papers served on the employer and the debtor. You may ask the court for a SUPPLEMENTAL NOTICE TO WRIT OF EXECUTION FOR GARNISHMENT (CIV-533) to collect the interest and costs. The court will send this NOTICE to the employer by first class mail. Step 10: Terminating Writ
If for some reason the employer keeps sending payments to the court after your judgment is satisfied, you should tell the court this so the court can send the employer a NOTICE OF TERMINATION OF WRIT OF EXECUTION (CIV-542). This might happen, for example, if you receive partial payment of the judgment from another source (e.g., a voluntary payment from the debtor or another levy) while the wage garnishment is still continuing.
12 AS 09.30.070(a) CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 8
B. EXECUTING ON DEBTOR'S PROPERTY The procedure described in this section can be used to execute on many kinds of property. There are, however, some kinds of personal property for which this procedure cannot be used (for example: household goods). See Section C beginning on page 15 for the procedure to use to execute on these special kinds of personal property. 13 Also, see Section D, page 22, if you have a judgment for specific personal property rather than a money judgment. See booklet CIV-503 for the procedures for executing on the Alaska Permanent Fund Dividend. The following are a few examples of the types of property which can be executed upon by using the procedure described in this section: cash bank accounts stocks and bonds coin collections land houses business inventory and equipment guns AS 09.35.030(1) requires you to execute on personal property before executing on real property. If sufficient personal property to satisfy the debt cannot be found, you can then execute on real property. "Real property" includes land, houses, and generally whatever is erected on, growing upon, or affixed to land. All other property is personal property. Before you decide which property of the debtor's to try to seize, you should read the JUDGMENT DEBTOR BOOKLET to see if there is an exemption which will protect the property from seizure. Step 1: Fill Out Forms When filling out forms, please type or print clearly and use black ink. Press hard so your printing will show through on all copies of each form. See the illustration on page 4 for how to fill out the tops of the forms.
13 Note About Motor Vehicles: The procedure for executing upon motor vehicles is not entirely clear in the statutes. Some judges allow the procedures in this section (Section B) to be used if the vehicle to be seized is worth more than $25,000 or if the debtor has more than one motor vehicle. They require the procedures in Section C (page 15) to be used if the debtor's only vehicle is worth less than $25,000. Other judges, however, require the procedures in Section C to be followed no matter how many vehicles the debtor owns and no matter what their value. If you are not sure which procedure the judge in your case will require, it is probably safest to follow Section C procedure to seize a motor vehicle. Otherwise, if you use Section B procedure and the judge decides that it is not the correct procedure, you may have to return the vehicle to the debtor and not be able to recover your costs of seizure. See AS 09.38.075 and AS 09.38.020. CIV-550 (6/09) 9 JUDGMENT CREDITOR BOOKLET
If you tell the clerk you want to execute on the above kinds of property, the clerk should give you the following forms to fill out: 1. Writ Packet a. CIV-501, INFORMATION FOR ISSUANCE OF WRIT OF EXECUTION Fill out the entire form. b. CIV-560, SERVICE INSTRUCTIONS FOR WRIT OF EXECUTION On this form (or your process server's version of the form) you must describe the property you want your process server to seize, tell where it is located and name the person in possession of it. You must also decide how you want the Debtor's Packet served. You will probably want to discuss the procedure with your process server before filling out this form. See Step 2 on page 11 about serving documents. The following are some examples of what you might want to put in the "Directions" section of the form: (1) (2) (3) 2. "Make a personal demand on (debtor's name) for money to pay the debt." "Seize any funds at (name of bank or other institution)." "Make a personal demand for cash at (name of business)."
Debtor's Packet a. CIV-505, CREDITOR'S AFFIDAVIT Fill out the entire form. Note that your signature must be notarized. The court clerk can do this for you at no charge. Keep one copy of your AFFIDAVIT after it is notarized. You will give the original and the other copy to the clerk. b. CIV-510, NOTICE OF LEVY AND SALE OF PROPERTY AND NOTICE
OF RIGHT TO EXEMPTIONS
Fill out the entire form (including the court's mailing address). If an attorney is helping you with the case, the attorney's name and address should be written in the space provided. Note: A copy of the JUDGMENT DEBTOR BOOKLET (CIV-511) must be attached to this form when it is served on the debtor. c. CIV-515, CLAIM OF EXEMPTIONS Fill out only the top of the form.
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Step 2:
Choose Type of Service
Writ Packet. The WRIT must be served on (delivered to) the person in possession of the property by a process server or peace officer. Follow the instructions for "Personal Service by Process Server" on page 23. Debtor's Packet. The Debtor's Packet (including the JUDGMENT DEBTOR BOOKLET) must be served on the debtor either before or within 3 days after the levy (that is, within 3 days after the debtor's property is seized). 14 It may be served either by a process server or by certified mail. The two types of service are explained on pages 23-28. Select one and follow the instructions. Step 3: File Forms With Court
After filling out the forms, return the Writ Packet to the court. If you want the Debtor's Packet served by a process server or served immediately by certified mail, return the Debtor's Packet to the court with the Writ Packet and tell the clerk which kind of service you want. However, if you want the Debtor's Packet served by certified mail after the writ is served, keep the Debtor's Packet and bring it to the clerk at the time you want it mailed. Step 4: Clerk Processes Paperwork
The clerk will then complete the paperwork and see that the proper forms are either given to the process server or sent by certified mail.
14 AS 09.38.080(c). It is important to note that these documents only need to be served on the debtor if something is actually taken. (See definition of "levy" in the Glossary at page 41.) Thus, for example, if a WRIT OF EXECUTION is served on a bank and the debtor has no account at that bank or no money in his or her account, it is not necessary to serve the NOTICE and other forms on the debtor. When a process server serves a WRIT OF EXECUTION on a bank, the bank must complete a response to the levy and return it to the process server within 24 hours pursuant to AS 09.40.060. CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 11
Step 5:
Process Server Takes Possession of Property
The process server will take the WRIT OF EXECUTION and serve it upon the person in possession of the property. 15 That person must then turn the property over to the process server. If the item taken is cash, the process server must take it to the court where it will be deposited in the court's trust account as soon as possible. Any other property must be stored in a secure place by the process server at your expense. Step 6: Proof of Service of the Debtor's Packet
Proof that the Debtor's Packet was served on the debtor must be filed with the court before the court will release to you any money collected under the WRIT. 1. Process Server If the Debtor's Packet is served by a process server, the process server will file proof of service with the court. If you have any questions, you should contact the process server. 2. Certified Mail a. Small Claims Cases. If the Debtor's Packet is served by certified mail, the green postal receipt card will be returned to the court by the Post Office. Formal Civil Cases. If the Debtor's Packet is served by certified mail, the green postal receipt card will be returned to you. You must file it with the court along with an affidavit of service. If the envelope sent to the debtor is returned to you, see paragraph "e" (Debtor's Packet Not Served) on page (25) for what to do. If your attempts to serve the debtor are unsuccessful, ask the clerk for Instructions: How to Request Release of Funds (form CIV-545) and the accompanying forms.
b.
15 To make the levy, your process server must give the person holding the debtor's property both a certified copy of the WRIT and a notice specifying what property is being levied upon. Usually process servers have their own NOTICE OF LEVY forms, but if yours does not, form CIV-555 is available at the court. AS 09.35.110, Civil Rule 89(f)(3) and Beery v. Browning, 717 P.2d 365 (Alaska 1986). CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 12
Step 7:
Claim of Exemption
The Debtor's Packet tells the debtor about the debtor's right to claim exemptions. The debtor has 15 days after receiving the packet to object to the levy by filling out the CLAIM OF EXEMPTIONS form (CIV-515) and filing it with the court. 1. Debtor Files CLAIM OF EXEMPTIONS If the debtor files a CLAIM OF EXEMPTIONS, the court will send you a copy of the claim and a form you can use to respond to the claim (CIV516). You must file your response with the court within 10 days. When you receive the debtor's claim, you must be sure to tell your process server not to sell any property the process server has seized until the court decides whether to grant the debtor's claim of exemptions. The court will decide the claim based on the information submitted, or the court will schedule a hearing. If a hearing is ordered, the court will notify both you and the debtor of the date and time it will be held. At the hearing, the debtor has the responsibility of convincing the court that the debtor qualifies for one or more of the exemptions given by the statutes. 16 You will have an opportunity to question the debtor and present any evidence you wish. The court will enter an order granting or denying the debtor's claimed exemptions and awarding any money seized either to you or to the debtor. If the property seized was not cash, the process server, pursuant to the court's order, will either release the property to the debtor or sell it at a public sale [after complying with the notice and other requirements of AS 09.35.140-.330 and AS 09.38.080(d)]. The money from the sale will be sent to the court. Note: You will either have to pay the costs of the sale in advance or the costs will be deducted from the proceeds of the sale. Be aware that you may not be able to recover some of these costs from the debtor. You should ask your process server what these costs will be before you decide to have property seized. You should also be aware that if the bids at the sale are too low, the property cannot be sold. A bid for property that is less than the exempt value is not acceptable. 17 If a high enough bid is not received, the process server must by statute 18 return the property to the debtor. If this happens, the costs of seizing the property, offering it for sale and returning it will all be charged to you, and you cannot recover these costs from the debtor.
16 AS 09.38.080(f) 17 Note: Be aware that AS 09.38.080(d) also requires: "If indebtedness secured by a valid lien is chargeable against the proceeds of the sale, the bid must exceed the amount of the indebtedness secured plus the amount of the exempt value." 18 AS 09.38.080(d) CIV-550 (6/09) 13 JUDGMENT CREDITOR BOOKLET
When the court receives the money, it will deposit the money in its trust account. If the court was given cash, the court can release the money (by a trust account check) right away. If the court was given a check, the court will have to wait until the check clears the bank (possibly 30 days in some courts) before releasing the money. 2. Debtor Does Not File CLAIM OF EXEMPTIONS If the debtor does not file a CLAIM OF EXEMPTIONS with the court within 15 days from the date the notice is received, the process server can sell the property at a public sale as described above and forward the proceeds to the court for distribution. Step 8: Collection of Money
The court will hold the money in its trust account for about 30 days before releasing the money to you. This 30-day waiting period allows the court to be sure the check has cleared the bank and also allows the judgment debtor time to object to the seizure of the property. Step 9: Terminating Writ
As soon as the judgment and all post-judgment costs and interest have been paid, you must instruct your process server to immediately return the WRIT to the court.
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C. EXECUTING ON CERTAIN KINDS OF DEBTOR'S PERSONAL PROPERTY (Section .020 Property 19 ) State law gives special protection to certain kinds of personal property. The law does this by allowing the debtor to claim exemptions up to a certain amount for each kind of protected property. The following are the types of protected property and the amount of the exemption for each type: 1. 2. 3. 4. 5. Up to $3,750 worth of household goods, clothes, books, musical instruments, family portraits and heirlooms Up to $1,250 worth of jewelry Up to $3,500 worth of professional books and tools of trade Up to $1,250 for pets Up to $3,750 in one motor vehicle if the full value of the motor vehicle does not exceed $25,000
Note that the exempt amounts are for the debtor's equity in the property, not for the actual value of the property. Thus, for example, if the only jewelry the debtor owns is a diamond ring worth $1500 and the debtor still owes the jewelry store $500 for it, the debtor's equity in the ring would only be $1,000 and the ring would be protected from seizure because of the $1,250 exemption for jewelry. You can still try to execute upon these types of property (if there is equity which is not exempt), but the procedure is different from the procedure used to execute upon other types of personal property or real property belonging to the debtor. The debtor must be given an opportunity to claim exemptions in the property you wish to seize before the court will issue a writ allowing the property to be seized. SERVICE OF " ORDER TO DEBTOR PACKET " Step 1: Fill Out Forms In " Order To Debtor Packet "
When filling out forms, please type or print clearly and use black ink. Press hard so your printing will show through on all copies of each form. See the illustration on page 4 for how to fill out the tops of the forms.
19 The Alaska Statutes call this category of property "Personal Property Subject To Value Limitations." AS 09.38.020. Note that the current exemption amounts are in the Administrative Code in 8 AAC 95.030(b) rather than in the statute, AS 09.38.020. CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 15
If you tell the court clerk you want to execute upon the types of property listed above, the clerk should give you the following forms to fill out: 1. CIV-535, CREDITOR'S AFFIDAVIT AND REQUEST Fill out the whole form. Note that your signature must be notarized. The court clerk can do this for you at no charge. Keep one copy of the form after it is notarized. Give the original and the other copy to the clerk. The following are some examples of what you might say in your affidavit: a. "I wish to seize debtor's grand piano, trombone, clarinet, tenor saxophone, washing machine, dryer, microwave oven, color TV set, refrigerator, mink coat, and Sony video tape recorder. I believe this property is not exempt because the total value of the debtor's equity in this property is approximately $7,000 and debtor's exemption for this type of property is only $3,750." "I wish to seize debtor's 2000 Volvo sedan. I believe this property is not exempt because the total value of the debtor's equity in this car is about $10,000, and the debtor is only entitled to an exemption of $3,750 in one motor vehicle."
b.
2.
CIV-536, ORDER TO DEBTOR AND NOTICE OF EXEMPTION RIGHTS (RE: PROPERTY SUBJECT TO VALUE LIMITS UNDER AS 09.38.020) Fill out the entire form except the judge's and clerk's signatures and date of issuance. Ask the clerk what the court's mailing address is (for the lines on page 2) if you do not know it. If an attorney is helping you with the case, the attorney's name and address should be written in the space provided on page 3.
3.
CIV-537, CLAIM OF EXEMPTIONS FOR PROPERTY SUBJECT TO VALUE LIMITS UNDER AS 09.38.020 Fill out only the top of the form.
4.
CIV-615, SERVICE INSTRUCTIONS You need to fill out this form (or your process server's version of it) only if you are going to have the "Order To Debtor Packet" served by a process server rather than by certified mail. List the three forms in the packet and describe where the debtor can be found. Before filling out the form, read Step 2 below about serving documents. You may also want to discuss the procedure with a process server.
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Step 2:
Choose Type of Service
The first three forms (called the "Order To Debtor Packet") must be served on the debtor either by a process server or by certified mail. The two types of service are explained on pages 23-28. Select one and follow the instructions. Step 3: File Forms With Court
After filling out the forms, return them to the clerk and tell the clerk the type of service you want to use. Step 4: Judge Rules on Your Request
Before these three forms will be sent to the debtor, a judge must approve your AFFIDAVIT AND REQUEST (form CIV-535). If the judge denies your AFFIDAVIT AND REQUEST, you will be notified; and you will either have to revise your AFFIDAVIT or try some other way to collect your debt. If the judge approves your AFFIDAVIT AND REQUEST, the judge will sign the ORDER TO DEBTOR. The ORDER informs the debtor of your intent to seize the property listed in your AFFIDAVIT, explains the debtor's right to object, and orders the debtor not to dispose of any of the property for 30 days. Step 5: Clerk Processes Paperwork
The clerk will then complete the paperwork and see that the correct copies of each of the three forms in the "Order To Debtor Packet" are either given to your process server or sent by certified mail. Step 6: Proof of Service
Proof that the "Order To Debtor Packet" was served on the debtor must be filed with the court before the court will issue a writ of execution. 1. Process Server If the packet is served by a process server, the process server will file proof of service with the court. If you have any questions, you should contact the process server. 2. Certified Mail a. Small Claims Cases. If the packet is served by certified mail, the green postal receipt card will be returned to the court by the Post Office.
17
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b.
Formal Civil Cases. If the packet is served by certified mail, the green postal receipt card will be returned to you. You must file it with the court along with an affidavit of service. If the envelope sent to the debtor is returned to you, see paragraph "e" (Debtor's Packet Not Served) on page (25) for what to do.
Step 7:
Claim of Exemptions
The debtor has 15 days from the date of issuance of the ORDER TO DEBTOR to file a CLAIM OF EXEMPTIONS with the court. 1. Debtor Files CLAIM OF EXEMPTIONS If the debtor does file a CLAIM OF EXEMPTIONS, the court will schedule a hearing. Both you and the debtor will be notified of the hearing date. The hearing should, if possible, be held before the 30-day order preventing disposal of the property expires. If it cannot be held before then, you must ask the court to extend the order for a longer period of time. At the hearing, the judge will decide whether to grant the debtor's claim of exemptions. The judge's order will say whether or not a WRIT OF EXECUTION may be issued to seize any of the property you listed in your AFFIDAVIT. 2. Debtor Fails To File CLAIM OF EXEMPTIONS If the debtor does not respond within the 15 days, you may do one of the following two things: a. If you know the location and description of the property listed in your AFFIDAVIT, you may ask the clerk of court to issue a WRIT OF EXECUTION. If you do not know the location of the items listed in your AFFIDAVIT or if you want more information about the description or value of the property, you can ask the court to order the debtor to appear in court so that you can ask the debtor questions under oath to obtain this information. To do this, do the following: (1) (2) (3) (4) Ask the clerk for form CIV-540, MOTION AND ORDER FOR JUDGMENT DEBTOR TO APPEAR. Fill out the top of the form and the "Motion" section. Decide whether you want the order served on the debtor by certified mail or by a process server. (See pages 23-28.) File the CIV-540 MOTION with the court.
18
b.
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
If the judge grants your motion, the judge will sign the Order section of the form setting the date for the hearing. You will be notified of the judge's decision, and the clerk will give a copy of the order to the process server or send it to the debtor by certified mail.
ISSUANCE OF WRIT OF EXECUTION Step 8: Fill Out Forms In "Writ Packet"
If the judge orders that a WRIT OF EXECUTION may be issued (after the hearing on the debtor's claim of exemptions) or if the debtor does not claim exemptions within 15 days of being notified of the debtor's rights, you may ask the clerk to issue a WRIT OF EXECUTION. The clerk will ask you to fill out the following forms: 1. CIV-501, INFORMATION FOR ISSUANCE OF WRIT OF EXECUTION Fill out the entire form. 2. CIV-615, SERVICE INSTRUCTIONS Fill out the entire form (or your process server's version of this form). On this form, you must tell the process server what property to seize and where that property is located. The property will be the property you listed in your AFFIDAVIT except for any listed property which the court has declared exempt and totally protected from seizure. You will probably want to discuss the procedures with your process server before filling out the form. Step 9: Choose Process Server
The WRIT must be served on (delivered to) the person in possession of the property by a process server or peace officer. Follow the instructions for "Personal Service by Process Server" on page 23. Step 10: File Forms With Court
After filling out the forms, return them to the court. Step 11: Clerk Processes Paperwork
The clerk will then complete the paperwork and see that the proper forms are given to the process server.
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Step 12: Process Server Takes Possession of the Property, Sells It And Deposits The Money With The Court The process server will take possession 20 of the property and sell it at a public auction after complying with the requirements of Alaska Statutes 09.35.140-.170 and Alaska Statute 09.38.080(d). Notice of the sale must be posted for at least 10 days prior to the sale, so it will probably be a minimum of two weeks after the property is seized before the proceeds of the sale will be deposited with the court by the process server. Note that you will either have to pay the costs of the sale in advance or the costs will be deducted from the proceeds of the sale. Be aware that you may not be able to recover some of these costs from the debtor. You should ask your process server what these costs will be before you decide to have property seized. You should be aware that if the bids at the sale are too low, the property cannot be sold. A bid for property that is less then the exempt value is not acceptable. 21 If a high enough bid is not received, the process server must by statute 22 return the property to the debtor. If this happens, the costs of seizing the property, offering it for sale and returning it will all be charged to you, and you cannot recover these costs from the debtor. Step 13: Release of Money
When the court receives the money, it will deposit the money in its trust account. If the money is in cash, the court can release the money (by a trust account check) right away. If the court is given a check, the court will hold the money in its trust account for about 30 days. This 30-day waiting period allows the court to be sure the check has cleared the bank. Step 14: Terminating Writ
If the judgment and post-judgment costs and interest are paid to you before the writ is served or before the property is sold at auction, you must instruct your process server to either immediately return the writ to the court or to return the seized property to the debtor.
20 To make the levy, your process server must give the person holding the debtor's property both a certified copy of the WRIT and a notice specifying what property is being levied upon. AS 09.35.110, Civil Rule 89(f)(3) and Beery v. Browning, 717 P.2d 365 (Alaska 1986). (Usually process servers have their own NOTICE OF LEVY forms.) 21 Note: Be aware that AS 09.38.080(d) also requires: "If indebtedness secured by a valid lien is chargeable against the proceeds of the sale, the bid must exceed the amount of the indebtedness secured plus the amount of the exempt value." 22 AS 09.38.080(d) CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 20
D. JUDGMENTS TO COLLECT SPECIFIC PERSONAL PROPERTY Most of this booklet describes what to do if you win a judgment stating that the debtor owes you money. The procedures are quite different if you win a judgment stating that you are entitled to take possession of a specific item of personal property. Except as described in the footnote below, 23 if you win a judgment for specific personal property, you do not need to file a creditor's affidavit with the court or serve a notice of levy on the debtor because there are no exemptions which the debtor can claim. Instead, you must ask the court for the CIV-580 WRIT OF EXECUTION FOR DELIVERY OF SPECIFIC PERSONAL PROPERTY LISTED IN JUDGMENT (REPLEVIN). Fill out the entire CIV-580 form except the clerk's signature and date and the other information at the bottom of the form. You must specifically describe the personal property which you plan to seize. Your description must be identical to the description stated in your judgment. Please type or print clearly when filling out this form. Also, please use black ink. Press hard so your printing will show through all copies of the form. You must then arrange for the WRIT to be served on the debtor or the person holding the debtor's property. Follow the instructions on page 23 about choosing and paying a process server. Use either the court's CIV-615 SERVICE INSTRUCTIONS form or the process server's version of it. On it you must describe the property you want your process server to seize, tell where it is located and name the person in possession of it. Return the WRIT and SERVICE INSTRUCTIONS to the clerk. The clerk will compare the information on your WRIT to your judgment and, if it is correct, sign the WRIT. The clerk will issue the WRIT to the process server you selected. The process server will serve the WRIT upon the person in possession of the property. 24 That person must then turn the property over to the process server. When the process server takes possession of the property, the process server must turn the property over to you as ordered in the judgment. 25
23 You will not be able to use the procedure described in this section if AS 09.38.070 applies to you. This statute may apply to you if you loaned the debtor money which has not been repaid and the property you wish to seize was security for that loan, but the loan was not made for the purpose of buying that property. If this describes your situation, see AS 09.38.070 for the procedure to follow. 24 To make the levy, your process server must give the person holding the debtor's property both a certified copy of the WRIT and a notice specifying what property is being levied upon. Usually process servers have their own NOTICE OF LEVY forms. The Alaska State Troopers use Trooper form 12-305-1, Notice of Levy of Specific Personal Property Listed in Judgment. AS 09.35.110, Civil Rule 89(f)(3) and Beery v. Browning, 717 P.2d 365 (Alaska 1986). 25 Ordinarily, the property is then yours to do with as you wish. However, in some cases, your judgment may require you to sell the property and apply the proceeds to the debt which the debtor owes you. CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 21
III.
SERVING DOCUMENTS
The two methods of serving documents discussed in this booklet are (1) personal service by a process server and (2) service by certified mail. The procedures for each are described below. 1. Personal Service By Process Server If you want to use a process server, you must: a. Choose a process server. The court clerk will have a list of process servers in your area. You can also find a list of licensed process servers on the State Trooper website: www.dps.state.ak.us/ast Click on "Process Server List." Many parts of the state do not have process servers. In those areas, "process" 26 is served by peace officers (usually by State Troopers). If the process server is not in your community, you must give the court an envelope addressed to the process server with sufficient postage so the clerk can mail the documents to the process server. b. Contact the process server to determine the service fee. Pay the fee directly to the process server unless the process server is not in your community. In that case, make your check payable to the process server but give it to the clerk to mail with the writ. Fees are set by the individual process server. However, the maximum amount you may recover as costs from the debtor is governed by Administrative Rule 11. c. Fill out SERVICE INSTRUCTIONS. Use either the process server's form or one of the following court forms: CIV-561 - for garnishing earnings CIV-560 - for executing on property (except property) CIV-615 - for executing on Section .020 property Section .020
Explain in the SERVICE INSTRUCTIONS what papers are to be served and where they are to be served. d. Give the SERVICE INSTRUCTIONS (and, if necessary, the check for the process server's fee and postage paid envelope addressed to the process server) to the court clerk. The clerk will complete the documents and deliver them to the process server.
26 "Process" means court orders such as writs of execution, summonses, subpoenas, orders to show cause, etc. CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 22
e.
Proof of Service. When service is completed, the process server will file proof of service with the court. The process server should also notify you. If you have any questions about the service, contact your process server.
2.
Service by Certified Mail of the Debtor's Packet a. Prepare Envelope (1) Provide the court with an envelope large enough to hold the documents to be sent to the debtor: Wage Garnishment - a business-size white envelope Section .020 Execution - a business-size white envelope Other Property Execution - 9" x 12" manila envelope (2) (3) Write the debtor's name and address on the envelope. Put return address in the upper left corner: (a) (b) (4) b. In a small claims case, the return address must be the court's address. In a regular civil case, the return address must be your address.
Put sufficient postage on the envelope to mail it by certified mail, restricted delivery, return receipt requested.
Prepare Certified Mail Postal Forms. See examples on pages 27-28. (1) (2) Fill out a Certified Mail Receipt. Be sure to include the total postage amount. Attach the sticker portion next to the return address at the top of the envelope. Leave the bottom portion of the receipt attached. Beneath the certified mail sticker on the envelope, write "Return Receipt Requested, Restricted Delivery." Fill out a green postal receipt card.
(3) (4)
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Front:
In small claims cases, fill in the court's name and address so the card will be returned to the court. In regular civil cases, fill in your name and address so the card will be returned to you. Write the case number in the lower left corner.
Back:
In the "Article Addressed To" box, fill in the name and address of the debtor, write "Restricted Delivery," and write the total postage amount. In the "Article Number" box, write the certified mail number. In the "Service Type" box, check "Certified Mail." Check the "Restricted Delivery" box.
(5) c.
Do not attach the green card to the envelope.
Take the envelope and green card to the clerk. Pay the clerk the court's $4.00 fee 27 for service by certified mail for each person to be served. The clerk will mail the packet to the debtor. Proof of Service (1) (2) Small Claims Cases. The green postal card will be returned to the court by the post office. Regular Civil Cases. The green postal card will be returned to you. You must file the green postal card along with an affidavit of service with the court.
d.
e.
Debtor's Packet Not Served If the envelope sent to the debtor is returned (for example, because of insufficient postage or an error in the address or because the debtor is no longer at the address listed on the envelope), the following will happen:
27 Administrative Rule 9(e)(6). CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 24
(1)
Small Claims Cases. The clerk will notify you that the debtor was not served. You should do one of the following: (a) Take a new envelope with postage and certified mail postal forms to the court so the clerk can remail the Debtor's Packet. You will have to pay another $4 certified mail fee. Make arrangements to have the Debtor's Packet served by a process server.
(b) (2)
Regular Civil Cases. The post office will return the envelope to you. You should do one of the following: (a) Take the contents of the envelope to the court with a new envelope, postage and certified mail postal forms so the clerk can remail the Debtor's Packet. You will have to pay another $4 certified mail fee. Make arrangements to have the Debtor's Packet served by a process server.
(b)
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Note: In small claims, this address must be the court's
DEBBIE DEBTOR 1810 MISSION ROAD ANCHORAGE AK 99501
3AN-08-333 CI
xxxx xxxx xxxx xxxx xxxx
DEBBIE DEBTOR 1810 MISSION ROAD ANCHORAGE AK 99501
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CHRIS CREDITOR 626 CIRCLE AVENUE ANCHORAGE AK 99508-1234
3AN-08-333 CI
Note: In small claims, the above address must be the court's.
DEBBIE DEBTOR 1810 MISSION ROAD ANCHORAGE AK 99501 RESTRICTED DELIVERY Postage: $ xxxx X
x
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IV. HOW TO LOCATE DEBTOR'S ASSETS As stated earlier in this booklet, it is your responsibility to find the debtor's money or property which can be seized. A. PLACES TO LOOK If you are having trouble finding this information, the following are some places you can check: 1. Municipal (City) Tax Department. At this office, you can ask if the debtor is paying taxes on any property. Depending on the city, you may be able to find out a variety of information about the debtor's assets. In Anchorage, for example, you could learn the following: a) Personal Property. You could find out whether the debtor has filed a personal property return, his address, and the total value of the items listed. You cannot, however, find out which particular items of personal property (recreational vehicles, mobile homes, boats, etc.) are listed on the return. Business Property. Same as personal property. You can find out if a return has been filed and the total value of the items listed, but you cannot find out which items are listed. Real Estate. You can find out whether the debtor owns land within the municipality, the debtor's mailing address, the location of the land, and the value of the land and any buildings on it.
b)
c)
2.
Polk's Directory. R.L. Polk & Co. publishes a directory for most major cities in the United States. In Alaska there are ones for Anchorage; Fairbanks/Northstar Borough; Mat-Su Valley; and Southeast Alaska. Some public libraries have the directories. One section of each directory is an alphabetical list of the names of all adult residents of the city. In this section the directory lists as much of the following information as the company has been able to obtain: name, address, marital status, occupation and employer. The company gets its information for the directory from door to door canvassing; so, even though the directory is revised annually, it is not necessarily complete or up-to-date. Note: The directory also has information about businesses, such as names of officers, owners and managers. Other sections of the directory list addresses by street number or name and telephone numbers in numerical order. State Division of Motor Vehicles. At DMV, you can find out if the debtor has any vehicles registered in his name. 28 There will be a $5.00 charge for each record found.
3.
28 Information in vehicle records usually may not be disclosed to the public. AS 28.10.505. However, one of the exceptions to that rule is information requested for use in executing or enforcing a court judgment. AS 28.10.505(d)(3). You may have to show DMV your judgment and writ of execution. CIV-550 (6/09) 28 JUDGMENT CREDITOR BOOKLET
4.
State Land Recorder's Office. You can examine the land records to see if the debtor owns any real estate in the state. For example, one place to begin might be the "Grantee Index" which is an alphabetical list of all persons who have bought land. Place of Employment. If you think you know where the debtor works, you can call the employer and ask if the debtor works there. Note: The employer is not legally required to answer your questions. Banks. Banks will not tell you if a person has an account with them unless they are served with a WRIT OF EXECUTION. If you think it is worth the service fee to find this out, you can have a process server serve a WRIT on any bank where you think the debtor might have an account. Investigative Services. Some process servers and private investigators will, for a fee, search for the debtor's assets for you. Since they are experienced at this, they may be able to do it more efficiently than you. You will have to judge, however, whether the possibility of finding assets is worth the cost. The court may or may not allow you to recover these investigative costs from the debtor. Personal Demand by Process Server. Once you get a WRIT OF EXECUTION, you can instruct your process server to make a personal demand upon the debtor. This means the process server would contact the debtor and ask the debtor to turn over all money or other property of value currently in the debtor's possession up to the amount necessary to pay the judgment. The process server, of course, charges a fee for doing this. B. JUDGMENT DEBTOR HEARING
5.
6.
7.
8.
There is also a court proceeding which may help you locate the debtor's assets: the judgment debtor hearing. 29 At a judgment debtor hearing, you (the judgment creditor) will be given a chance to ask the debtor (who will be under oath) what property he has and where it is located.
MOTION AND ORDER FOR JUDGMENT DEBTOR TO APPEAR. Fill out the top of
If you want a judgment debtor hearing, ask the clerk for form CIV-540,
the form (see illustration no. 1 on page 4) and the Motion section of the form. If you want the court to order the debtor to bring certain documents to the hearing, you must list the documents in the second paragraph of the Motion. Some courts may also ask you to go to the Calendaring Department and schedule a hearing time that is convenient for you before the ORDER will be signed.
29 See Civil Rule 69(b)(1). CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 29
The hearing date should be far enough away so there is time to serve a copy of the ORDER on the debtor and have proof of service returned before the hearing. You should have the ORDER served on the debtor by a process server. You can have it served by certified mail; however, you should be aware that with certified mail there is a greater chance that you will not get good (legally acceptable) service. Also, it may take longer to find out if the service by certified mail was successful. So, when certified mail is used the court may require the hearing to be set for a later date than when a process server is used. What Happens At The Hearing If you have difficulty hearing, tell the clerk and ask to use the assisted listening equipment available in the courtrooms. You may bring your lawyer with you to the hearing. The debtor may also bring a lawyer. At the hearing, the judge or clerk will ask the debtor to take the witness stand. The debtor will have to swear (or affirm) that he or she will truthfully answer any questions asked. The judge will then tell you (or your lawyer) that you may begin asking your questions. Generally, you can ask any question you can think of about the debtor's assets and his or her current and possible future financial situation. The following are a few things you could ask about: ·place of employment and amount of earnings ·any income from sources other than debtor's job · · · · · · location and value of any houses, land, etc. which debtor owns or has an interest in location, description and value of any motor vehicles, airplanes, boats, etc. which debtor owns or has an interest in any businesses debtor owns bank accounts (location and amount) stocks, bonds, certificates of deposit, savings bonds, time certificates, money market funds, etc. safety deposit box
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· · · · ·
interest or dividend payments from any source (including Alaska Permanent Fund dividends) whether anyone owes any money to debtor whether debtor has an income tax refund coming cash currently in debtor's possession other valuables (jewelry, paintings, stereo equipment, etc.)
The debtor can object to your questions. If an objection is made, the judge will have to decide if your question is relevant; that is, if it has some logical relationship to the debtor's current or future financial situation. If the judge decides the question is relevant and orders the debtor to answer it, the debtor must answer it. If the debtor refuses to answer it, the judge can hold the debtor in contempt of court. If the examination shows that the debtor has property which could be executed upon, the judge can order the debtor to use the property to satisfy the judgment. 30 Alternatively, you can use the information gained at the hearing to locate the debtor's property and have it seized under a WRIT OF EXECUTION. You may want to ask the judge at the hearing to order the debtor not to dispose of the property for a certain period of time so that you can have it picked up under a writ. C. FORMAL DISCOVERY PROCEDURES You may also use the formal discovery procedures set forth in Civil Rules 26 through 37 to find the debtor's assets. 31 You will probably need the assistance of a lawyer to do this.
30 Civil Rule 69(b)(2) 31 Civil Rule 69(a) CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 31
V. OTHER REMEDIES Two other things you can do if you are having difficulty getting the debtor to pay the judgment are: record the judgment at the land recorder's office and (in certain cases) file a copy of the judgment with the Department of Public Safety. A. Land Recorder's Office. You can record a certified copy of the judgment with the District Recorder at any location where the debtor may have real property or do business. Recording a judgment creates a lien upon all the debtor's real property in the recording district. 32 It creates a lien both upon real estate the debtor currently owns and any he or she may purchase in the future. The lien continues in effect for 10 years from the date of entry of the judgment. In addition, a recorded judgment may affect the debtor's credit rating. You can purchase a certified copy of the judgment from the court which entered the judgment for $5.00 33 The cost for recording the document at the District Recorder's office is currently $20.00 for the first page and $5.00 for each additional page of the same document. 34 The court clerk can tell you where the nearest recording office is. You will need to know the name of the recording district in which the debtor's property is located, because you must record your judgment in that district. There are 34 recording districts in Alaska. If you know where the property is located, but you do not know the name of the correct recording district, you can call or write to any of the District Recorder's offices and get this information. You can also get this information on the website for the Recorder's Office (in the Department of Natural Resources): www.dnr.state.ak.us/ssd/recoff/default.htm If you do not live in the place where you want the judgment recorded, you can record the judgment by mail. Write to the correct District Recorder and give the name of the recording district in which your judgment should be recorded. 35 Enclose a certified copy of the judgment and a check for the correct amount of fees made payable to the "Alaska Department of Revenue." Also, write on the judgment: "Return To: your name and address." The recording office needs this so the judgment can be returned to you after recording. This information must be on the judgment, not just in a cover letter.
32 AS 09.30.010 33 Administrative Rule 9(e)(2). Note: This rule, however, also states that a party is entitled to receive one free certified copy of the final judgment in the party's case. 34 Note: These fees may, of course, change. See the Recorder's Office website (noted above) for updated fee information. Also note: A photocopy of the recorded document costs $2.00, and a certified copy of it costs $7.00 (if requested at the time of recording). 35 Some District Recorder offices handle the recording for several different recording districts. CIV-550 (6/09) 32 JUDGMENT CREDITOR BOOKLET
Note: When the debtor pays the judgment, you must give the debtor an "acknowledgment of satisfaction of judgment." See Section VI of this booklet, page 35. In addition, if you previously recorded the judgment, you must include the following in your acknowledgment: 36 (1) the book and page of the official record in which the judgment has been recorded, or the serial number assigned to the judgment by the recorder, and the full name of the judgment debtor as it appears upon the judgment recorded.
(2) B.
Department of Public Safety Under certain circumstances, if your judgment arose from a motor vehicle accident and the debtor fails to pay it within 30 days after the judgment is final, the Department of Administration will suspend the debtor's driver's license until the judgment is paid. For this purpose, a judgment is final when the time for appeal has passed without the debtor having filed an appeal or, if the debtor did file an appeal, the debtor has lost the appeal. 37 If the debtor fails to satisfy the judgment within 30 days after the judgment is final, you may ask the clerk of court to send a certified copy of the judgment along with a certificate of facts (form CIV-405) about the judgment to the Department of Administration. 38 The court will not charge you a fee for this, but you will have to fill in all the information in the CIV-405 form and sign it. You will also need to provide a certified copy of the judgment and envelopes addressed to the plaintiff and defendant in the case. When the Department receives these documents, it will suspend the debtor's driver's license. 39 The suspension will remain in effect (and no license or registration will be issued to the debtor) until the judgment is satisfied (or stayed) and until the debtor gives proof of financial responsibility for the future. 40 See AS 28.20.360 for the definition of when a judgment is considered satisfied for purposes of this license suspension procedure. Also see AS 28.20.300-.325 for some situations in which the debtor's driver's license will not be suspended.
36 37 38 39 40
AS 09.30.310 AS 28.20.630(1) AS 28.20.280 AS 28.20.270 AS 28.20.330 33
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
VI. CREDITOR'S DUTY TO ACKNOWLEDGE SATISFACTION OF JUDGMENT When the debtor pays the judgment (including costs and interest), it is your duty to give the debtor a document acknowledging that the judgment has been satisfied. 41 The Alaska Statutes 42 require that if your judgment is satisfied otherwise than upon an execution, you or your lawyer must "deliver a written acknowledgment of satisfaction of judgment suitable for recordation immediately upon payment in cash or within 10 days after payment if payment is made in any other manner, and, upon motion, the court may compel an acknowledgment of satisfaction or may order the entry of satisfaction to be made without it." Also, after the judgment is paid in full, if the debtor makes a written demand upon you to do so, you must execute and file an acknowledgment of satisfaction with the court. If you fail to do so within 30 days without just cause, the Alaska Statutes state that you will be liable to the debtor for all damages which the debtor may sustain because of that failure and that you will have to pay the debtor $100. 43 Also, court rules require that in all small claims cases you must file an acknowledgment of satisfaction with the court. 44 (Form SC-17, SATISFACTION OF JUDGMENT may be used.)
41 42 43 44
AS 09.30.300 and AS 09.30.310 AS 09.30.300(a) AS 09.30.300(b) District Court Civil Rule 20(e) 34
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
VII. OTHER INFORMATION 1. What can you do if you do not know where your debtor is? a. b. You could perhaps refer the case to a collection agency which might be able to find the debtor. You also could check with your accountant or the IRS to find out whether you can deduct the loss when you file your income tax return. Note: Even though you cannot find the debtor, if you can find property of the debtor, you may be able to proceed with execution against the property. You will have to get the court's permission to make special provisions for notifying the absent debtor.
c.
2.
What if the debtor does not live in Alaska? a. If you can find property of the debtor in Alaska, you can proceed with execution against the property. You will still have to serve the debtor with the notices and other documents required by the law. Note: If the debtor is not a "resident" of Alaska as defined in AS 09.38.120(b) (see Glossary), the debtor is not entitled to the exemptions provided by Alaska law. Instead, the debtor is entitled to the exemptions provided by the laws of the debtor's state. AS 09.38.120. If the debtor has no property in Alaska but has property in another state, you may be able to execute on that property by following the execution procedure prescribed by the laws of that state.
b.
3.
What if the debtor is a corporation? Corporations are not entitled to exemptions because exemptions belong only to individual persons. Therefore, there is no need to serve a creditor's affidavit or notice of exemptions on the corporation. Note, however, that the judgment must be against the corporation in its corporate name, and the property to be seized must be corporate property. The court may require you to file an affidavit stating this before releasing any funds to you.
4.
What if the debtor is a borough, city or other public corporation? If you get a judgment against a borough, city or other public corporation, no writ of execution may be issued on the judgment. Instead, you must follow the procedure described in AS 09.30.040 to collect the amount due. A "public corporation" is a corporation organized for governmental purposes.
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5.
What if the debtor is a partnership? Partnerships are not entitled to exemptions because exemptions belong only to individual persons. Therefore, there is no need to serve a creditor's affidavit or notice of exemptions on the partnership. Note, however, that the judgment must be against the partnership (and not just against the individual members of the partnership), and the property to be seized must be partnership property. The court may require you to file an affidavit stating this before releasing any funds to you.
NOTE, HOWEVER: If the debtor is an individual person who also happens to have an interest in a partnership, the specific partnership property is exempt from execution to collect the debts of that individual debtor (which are not partnership debts). AS 09.38.100(b). The income to the individual from the partnership could, of course, be executed on. For further information about partnerships, see Title 32 of the Alaska Statutes.
6.
What if the debtor's property is owned with another and they are not a partnership? For example: What if the debtor is a husband and the title to the debtor's property is in the name of both husband and wife, can the property still be executed upon to pay the husband's debts? Answer: Yes. AS 09.38.100(a). However, it is important to remember that only the debtor's interest in the property can be levied upon. Therefore, even after the sale of the debtor's interest in the property, the original co-owner (in this case, the wife) would still have an ownership interest in the property. This might not be a workable situation. To separate these interests might involve a court partition action. As a practical matter, this procedure is complicated and you should contact a lawyer for assistance.
7.
How long can you wait after your judgment is entered before getting a writ of execution? 45 No more than 5 years, unless you get an order from the court allowing you to get one later. See AS 09.35.020 and Civil Rule 69(d).
45 AS 09.10.040 states that a "person may not bring an action upon a judgment ... unless the action is commenced within 10 years." However, this statute does not apply to writs of execution because writs of execution are enforcement procedures for existing judgments, not "actions" seeking to obtain new judgments. State ex rel. Inman v. Dean, 902 P.2d 1321, 1322 (Alaska 1995) CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 36
VIII.
CLAIMS ENFORCEABLE AGAINST EXEMPT PROPERTY
AS 09.38.065 lists some types of claims which are enforceable against exempt property. If you have a judgment based on one of these types of claims, you should read this statute. It states: (a) Notwithstanding other provisions of this chapter, (1) a creditor may make a levy against exempt property of any kind to enforce a claim for (A) child support; (B) unpaid earnings of up to one month's compensation or the full-time equivalent of one month's compensation for personal services of an employee; or (C) state or local taxes; (2) a creditor may make a levy against exempt property to enforce a claim for: (A) the purchase price of the property or a loan made for the express purpose of enabling an individual to purchase the property and used for that purpose; (B) labor or materials furnished to make, repair, improve, preserve, store, or transport the property ; and (C) a special assessment imposed to defray costs of a public improvement benefiting the property; and *(3) a creditor may make a levy against exempt property of any kind to enforce the claim of a victim, including a judgment of restitution on behalf of a victim of a crime or a delinquent act, if the claim arises from conduct of the debtor that results in a conviction of a crime or an adjudication of delinquency, except that the debtor is entitled to an exemption in property (A) not to exceed an aggregate value of $3,000 chosen by the debtor from the following categories of property: (i) household goods and wearing apparel reasonably necessary for one household;
(ii) books and musical instruments, if reasonably held for the personal use of the debtor or a dependent of the debtor; and
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET 37
(iii) family portraits and heirlooms of particular sentimental value to the debtor; and (B) not to exceed an aggregate value of $2,800 of the debtor's implements, professional books, and tools of the trade. (b) Except as provided in AS 09.38.070 limiting the enforcement of certain security interests, this chapter does not affect any statutory lien or security interest in exempt property. A creditor having a claim enforceable under (a) of this section against exempt property, before, at the time of, or a reasonable time after making a levy on property of an individual, shall serve on the individual a notice of the levy and of the basis for the creditor's right to make a levy on exempt property.
(c)
*Note that a victim may use the procedure described in subparagraph (a)(3) above only if the victim's claim arises from a crime committed on or after September 15, 1991. (sec 24 ch 57 SLA 1991) You should be aware, however, that even though this statute says these claims are enforceable against exempt property, there are other statutes which continue to provide exemptions for certain types of the debtor's property. The court system does not at this time provide special forms or instructions for this type of execution procedure.
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IX. GLOSSARY Note: Many of the definitions in this Glossary come from Alaska Statute 09.38.500. If a definition is from this statute, a reference to the statute follows the definition. You may want to check this statute for definitions of other words not included in this glossary. Affidavit A written statement sworn to before a person officially permitted by law to administer an oath. Note that Alaska Statute 09.38.080(b) describes what must be included in the "Creditor's Affidavit" required for some types of executions. A copy of a document or record, signed and certified as a full, true and correct copy by the person to whose custody the original is entrusted. The one who is owed money by the debtor as decided by the court in a judgment. A legally enforceable monetary obligation or liability of an individual, whether arising out of contract, tort, or otherwise. AS 09.38.500(3) The one who owes money to the creditor as decided by the court in a judgment. Happens when a party fails to file an answer to a complaint or does not show up for a trial. A judgment may be entered automatically against someone who defaults. That court in the court system which can hear cases for the recovery of money when the amount claimed does not exceed $100,000 per defendant. Money received by an individual for personal services and denominated as wages, salary, commissions, or otherwise. AS 09.38.500(5) To carry out or enforce. The procedure for carrying out or enforcing a court judgment. Protected. AS 09.38.500(6)
Certified Copy
Creditor Debt
Debtor Default
District Court
Earnings
Execute Execution Procedure Exempt Exempt Property
Certain classes of property which the law protects either totally or partially from being taken to pay a debt established by a court judgment. Protection from subjection to process or a proceeding to collect an unsecured debt. AS 09.38.500(6) Includes those items that make a residence habitable according to modern standards. AS 09.38.500(7)
39
Exemption Household Goods
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
Judgment
The final decision of a court in a case. A judgment states which person owes the other how much money (if any). A lien on property obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding instituted for the purpose of collecting an unsecured debt. AS 09.38.500(9) The seizure of property under a writ of attachment, garnishment, execution, or any similar legal or equitable process issued for the purpose of collecting an unsecured debt. AS 09.38.500(10) (A) a security interest; (B) a judicial or statutory lien; (C) a common law lien on property; (i) only if the lien was consented to by the owner of the property affected; or (ii) if not consented to by the owner of the property affected as provided in (i) of this subparagraph, only when the lien is accompanied by a specific order authorizing the recording or filing of the lien issued by a court of competent jurisdiction recognized under state or federal law, which order shall be recorded or filed with the lien; or (D) any interest in property other than one described in (A) (C) of this paragraph securing payment of a debt or performance of an obligation. AS 09.38.500(11) A request that a judge make a ruling or take some other action. Movable property, as opposed to land and buildings (which are called real property). A lawsuit to get back personal property in the hands of another person. See above definition of personal property. An individual who is physically present in the state and who intends to maintain a permanent home in Alaska. AS 09.38.120(b) A certificate signed by a peace officer or process server stating whether a particular document was delivered; how, when and to whom it was delivered and who delivered it. An interest in property created by contract to secure payment or performance of an obligation. AS 09.38.500(13)
40
Judicial Lien
Levy
Lien
Motion Personal Property Replevin
Resident
Return of Service
Security Interest
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
Serve Notice
To deliver legal documents to a person (in a way authorized by statute or court rule) notifying the person of certain required information. In the execution procedures law, to "serve notice" is specifically defined as follows: "to give the person to be served a written personal notice in the same manner a summons in a civil action is served, or to mail the notice to the person's last known address by first-class mail and by using a form of mail requiring a signed receipt." AS 09.38.500(14) A type of case heard in district court for the recovery of money or property when the amount claimed does not exceed $10,000. The formal rules of evidence and procedure are relaxed in order to allow people the chance to argue their cases without the expense of a lawyer. A lien arising by force of a statute under specified circumstances or conditions, but does not include a security interest. AS 09.38.500 (15) That court in the court system which can hear cases for the recovery of money in any amount, but usually hears cases for the recovery of $100,000 or less only when they are appealed from the district court. A private or civil wrong other than a breach of contract, in which the court will provide a remedy in the form of an action for damages. Fair market value of an individual's interest in property, exclusive of liens of record. AS 09.38.500(16) A court order requiring that something be done outside the courtroom or authorizing it to be done. An order issued by a court stating the amount of money the debtor owes the creditor and directing a peace officer or process server to take the property of the debtor in order to pay that amount. A court order which is served on debtor's employer and which requires the employer to send part of the of debtor's earnings to the court each payday to pay the amount owed the creditor.
Small Claims
Statutory Lien
Superior Court
Tort
Value Writ Writ of Execution
Writ of Execution for Garnishment Earnings
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
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This booklet was produced by the Alaska Court System. If you want to suggest changes in the booklet, please contact: Dorne Hawxhurst Alaska Court System 820 West 4th Avenue Anchorage, AK 99501-2005
CIV-550 (6/09) JUDGMENT CREDITOR BOOKLET
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