Search terms: COUNTY SHERIFF |
IN THE HOUSE OF REPRESENTATIVES
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
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AN ACT
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RELATING TO ENFORCEMENT OF JUDGMENTS IN CIVIL ACTIONS; AMENDING SECTION
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EXECUTIONS AND RETURNS, AN EXECUTION BOOK, AND GARNISHMENT FOR CHILD
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SUPPORT AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 11-107,
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PROVIDE FOR THE ISSUANCE OF CERTAIN EXECUTIONS, AND TO DEFINE A TERM;
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A CLAIM OF EXEMPTION BY A JUDGMENT DEBTOR OR THIRD PARTY, A MOTION TO
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CONTEST CLAIM AND HEARING, AND THE HOLDING AND RELEASE OF PROPERTY AND
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REVISE PROVISIONS REGARDING EXECUTIONS AND RETURNS AND AN EXECUTION
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GARDING GARNISHMENT, SERVICE OF A WRIT OF EXECUTION OR GARNISHMENT, AND
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PROVISIONS REGARDING EMPLOYERS AND CONTINUOUS GARNISHMENT; AMENDING
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ON CONTINUOUS WAGE GARNISHMENT AND CONTINUOUS GARNISHMENT FOR CHILD
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GARDING DOCUMENTS TO BE PROVIDED BY JUDGMENT CREDITOR, DUTIES OF THE
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SHERIFF, SERVICE AND MAILING CRITERIA, AND TIME COMPUTATION; AMENDING
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NOTICE OF EXEMPTIONS, INSTRUCTIONS TO DEBTORS AND THIRD PARTIES, AND
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PROVISIONS REGARDING SERVICE ON A JUDGMENT DEBTOR AND THIRD PARTIES
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IN CERTAIN INSTANCES AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SEC-
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JUDGMENT DEBTOR AND THIRD PARTIES BY A FINANCIAL INSTITUTION; AMENDING
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INSTITUTION'S OBLIGATIONS WHEN SERVED WITH A WRIT OF GARNISHMENT AND
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TO PROVIDE FOR THE FILING OF A NOTICE OF INTENT TO TERMINATE A WRIT OF
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TO REVISE PROVISIONS REGARDING THE LIABILITY OF A GARNISHEE; AMENDING
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OF GARNISHMENT AND DISCHARGE OF A GARNISHEE; AMENDING SECTION 11-728,
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FEES FOR SERVICE.
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11-102. FORM OF WRIT. The writ of execution must be issued in the name
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of the people, sealed with the seal of the court, and subscribed by the clerk,
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and be directed to the sheriff, and it must intelligently refer to the judg-
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ment, stating the court, the county where the judgment roll is filed, and
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the judgment debtor's name, last known address, and, if known, other person-
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ally identifying information, and if it be for money, the amount thereof, and
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the amount actually due thereon, and if made payable in a specified kind of
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money, or currency, the execution must also state the kind of money or cur-
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rency in which the judgment is payable, and must require the sheriff substan-
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tially as follows:
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(1) If it be against the property of the judgment debtor, it must re-
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quire the sheriff to satisfy the judgment, with interest, out of the per-
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sonal property of such debtor, and if sufficient personal property cannot
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be found, then out of his real property; or if the judgment be a lien upon
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real property, then out of the real property belonging to him on the day when
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the judgment was docketed, or at any time thereafter; or if the execution be
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issued to a county other than the one in which the judgment was recovered,
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on the day when the transcript of the docket was filed in the office of the
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recorder of such county, stating such day, or any time thereafter.
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(2) If it be against real or personal property in the hands of the per-
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sonal representatives, heirs, devisees, legatees, tenants, or trustees, it
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must require the sheriff to satisfy the judgment, with interest, out of such
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property.
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(3) If it be against the person of the judgment debtor, it must require
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the sheriff to arrest such debtor and commit him to the jail of the county un-
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til he pay the judgment, with interest, or be discharged according to law.
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(4) If it be issued on a judgment made payable in a specified kind of
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money or currency, it must also require the sheriff to satisfy the same in the
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kind of money or currency in which the judgment is made payable, and the sher-
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iff must refuse payment in any other kind of money or currency; and in case of
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levy and sale of property of the judgment debtor, he must refuse payment from
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any purchaser at such sale in any other kind of money or currency than that
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specified in the execution. The sheriff collecting money or currency in the
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manner required by this chapter, must pay to the plaintiff or party entitled
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to recover the same, the same kind of money or currency received by him, and
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in case of neglect or refusal so to do, he shall be liable on his official bond
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to the judgment creditor in three (3) times the amount of the money so col-
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lected.
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(5) If it be for the delivery of the possession of real or personal prop-
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erty, it must require the sheriff to deliver the possession of the same, de-
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scribing it, to the party entitled thereto, and may at the same time require
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the sheriff to satisfy any costs, damages, rents or profits recovered by the
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same judgment, out of the personal property of the person against whom it was
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rendered, and the value of the property for which the judgment was rendered,
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to be specified therein, if a delivery thereof cannot be had; and if suffi-
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cient personal property cannot be found, then out of the real property, as
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provided in subsection (1) of this section.
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11-103. TIME WHEN RETURNABLE -- RECORD IN EXECUTION BOOK -- CONTIN-
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UOUS EXECUTION OR GARNISHMENT FOR CHILD SUPPORT. (a1) Except as provided
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in subsection (b2) of this section, the execution may be made returnable
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at any time not less than ten (10) nor more than sixty (60) days after its
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receipt by the sheriff, issuance by the clerk of the court to the clerk with
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whom the judgment roll is filed. When the execution is returned, the clerk
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must attach it to the judgment roll. If any real estate be levied upon, the
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clerk must record the execution and the return thereto at large, and certify
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the same under his hand as true copies in a book to be called the "execution
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book," which book must be indexed with the names of the plaintiffs and de-
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fendants in execution alphabetically arranged, and kept open at all times
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during office hours for the inspection of the public without charge. It is
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evidence of the contents of the originals whenever they, or any part thereof,
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may be destroyed, mutilated or lost.
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(b2) Where an execution or garnishment against earnings or unemploy-
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ment benefits for a delinquent child support obligation is served upon any
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the judgment debtor, the execution and the garnishment shall operate con-
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the nonexempt portion of earnings or unemployment benefits at each succeed-
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ing earnings or unemployment benefits disbursement interval until released
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by the sheriff at the written request of the judgment creditor or until the
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judgment for child support debt, in the dollar amount specifically set forth
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on the writ of execution and subject to garnishment as of the date the writ
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of execution is issued, is discharged or satisfied in full; provided, how-
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ever, that interim returns on such continuous execution or garnishment shall
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be filed by the sheriff at intervals not to exceed fourteen (14) days, when-
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ever the amount collected in the fourteen (14) day period is at least equal
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to fifty dollars ($50.00), but in any event, interim returns on such con-
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tinuous garnishment shall be filed by the sheriff at intervals not to exceed
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thirty (30) days. The proportion of earnings subject to garnishment as com-
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pared to total available earnings or unemployment benefits shall be limited
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to the percentage restrictions on garnishment of wages for child support as
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amended to read as follows:
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TIONS IN DIFFERENT COUNTIES AT SAME TIME. (1) Where the execution is against
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the property of the judgment debtor it may be issued to the sheriff of any
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county in the state. Where it the execution requires the delivery of real or
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personal property it must be issued to the sheriff of the county where the
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property, or some part thereof, is situated. Such eExecutions on real or
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personal property may be issued at the same time to different counties.
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(2) Where the execution is against money deposited within a financial
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moneys as may come due to said judgment debtor as a result of the judgment
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sued either to the sheriff of the county where such garnishee is located or to
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the judgment creditor. If an execution is issued to the judgment creditor,
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he must use a serving attorney. "Serving attorney" means an attorney who is
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Code.
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amended to read as follows:
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11-203. CLAIM OF EXEMPTION BY DEFENDANT OR THIRD-PARTY CLAIM -- MO-
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TION TO CONTEST CLAIM AND HEARING -- HOLDING AND RELEASE OF PROPERTY BY SHER-
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IFF OR COURT. (1) The following procedures shall apply to a claim by the de-
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fendant or the defendant's representative that property levied upon is ex-
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empt and to any claim by a third party that property levied upon is his prop-
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erty or that he has a security interest therein. The defendant or the defen-
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dant's representative shall complete the claim of exemption form as provided
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ten claim setting forth the grounds upon which he claims the property, and in
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the case of a secured party, also stating the dollar amount of the claim. Ex-
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cept as provided in subsection (h11) of this section, a claim of exemption or
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third-party claim may be filed only if property has been levied upon.
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(a2) The claim of exemption or third-party claim shall be delivered or
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mailed to the sheriff or court issuing the writ within fourteen (14) days
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after the date the sheriff hand delivers or mails of service of the documents
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required to be served upon the defendant and third parties under section
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iff or court within the fourteen (14) day period. In computing the fourteen
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(14) day period, intervening weekends and legal holidays shall be counted,
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but if the last day of the period falls on a weekend or legal holiday, the pe-
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riod shall be deemed to run until the close of business of the first business
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day following the weekend or holiday.
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(3) If the claim of exemption or third-party claim is delivered or
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mailed, wWithin one (1) business day after receiving a claim, the sheriff or
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court shall deliver or mail a copy thereof to the plaintiff or other person
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in whose favor the writ of execution runs. The sheriff or court may provide
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notification of the claim by telephone but must also mail a copy of the claim
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within one (1) business day as herein provided.
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(b4) The plaintiff or other person in whose favor the writ of execution
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runs shall have five (5) business days after the date a copy of the claim is
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delivered or mailed to him by the sheriff within which to file a motion with
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the court stating the grounds upon which he contests the claim of exemption
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or third-party claim. If appropriate, wWhen the motion is filed, the plain-
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tiff shall lodge with the court a copy of the claim to which the motion per-
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tains. Hearing on the motion shall be set for a date within not less than
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five (5) nor more than twelve (12) days after the filing date of the motion
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and may be continued only at the request of the defendant. A copy of the mo-
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tion and notice of hearing shall be delivered or mailed to the defendant or
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third-party claimant on the date the motion is filed. The prevailing party
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cedure.
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(5) If the writ be directed to the sheriff, wWithin the period for fil-
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ing a motion to contest, the moving party shall notify the sheriff that the
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motion has been filed. Such notification may be by telephone but a copy of
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the motion and notice of hearing shall also be mailed or hand delivered to the
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sheriff within the filing period herein prescribed.
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(c6) The sheriff or the plaintiff's serving attorney as defined in
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not deliver to the plaintiff or sell or otherwise disperse or dispose of the
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property levied upon, except if perishable as provided by law, until the
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period for filing a claim has elapsed. Any serving attorney keeping property
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in his separate possession under this section must hold it in a client trust
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professional conduct. The sheriff or court shall refuse to accept or honor
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a claim not filed with him within that period and the sheriff or plaintiff,
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unless otherwise ordered by the court, shall, after such period has elapsed,
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proceed to sell or, deliver, or otherwise disperse or dispose of the property
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levied upon to the plaintiff or other person in whose favor the execution
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runs satisfy the judgment. If, after notice from the sheriff of the filing
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of a claim, the plaintiff or other person in whose favor the execution runs,
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notifies the sheriff or issuing court that the claim will be uncontested or
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fails to notify the sheriff or court within the time provided in subsection
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(b2) of this section that the claim is being contested, the sheriff or plain-
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tiff shall release the claimed property to the defendant or his agent.
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(d7) If a plaintiff or other person in whose favor the execution runs
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has failed to contest a claim of exemption within the time allowed by this
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section or if property has been determined by a court to be exempt, and
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the plaintiff or other person in whose favor the execution runs thereafter
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levies upon or otherwise seeks to apply the property toward the satisfaction
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of the same money judgment, the plaintiff or other person in whose favor the
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execution runs is not entitled to recover the subsequent costs of collection
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unless the property is applied to satisfaction of the judgment.
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(e8) If a security agreement to the third-party claimant is in default,
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rendering said claimant the legal right to possession, the claimant may file
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with the sheriff or court an affidavit of release to the claimant executed by
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the defendant-debtor, or his agent; or, in lieu of said affidavit of release,
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the third-party claimant may file an affidavit setting forth the defendant-
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debtor's default and claiming possession under default and a hold harmless
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agreement in favor of the sheriff, supported by an undertaking qualifying
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double the actual value of the property as stated in said third-party claim.
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Upon receipt of either of the foregoing, the sheriff shall release said prop-
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erty to the third-party claimant, taking receipt therefor; these proceed-
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ings to be reported to the court by sheriff's return in the action.
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(f9) Nothing in this section shall be construed to prevent the defen-
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dant from pursuing his common law remedies.
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(g10) Personal service shall be accomplished in the same manner pro-
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ing under this section shall be by first class mail. The date when an item is
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In computing any period of time prescribed in this section, the day of the act
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or event after which the designated period of time begins to run is not to be
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included.
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(h11) At any time after the entry of a judgment that may be enforced by
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debtor, or any third party who claims a security interest or other interest
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in the property of the judgment debtor, may move the court for an order of ex-
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emption identifying the property for which the exemption is claimed and set-
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ting forth the grounds, arising under this title or common law, upon which he
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claims an exemption or, in the case of a third party, an interest in the prop-
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erty, and in the case of a secured party, also stating the dollar amount of
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such secured party's claim.
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amended to read as follows:
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11-702. TIME WHEN RETURNABLE -- RECORD IN EXECUTION BOOK. A garnish-
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ment execution may be made returnable at any time not less than ten (10) but
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not more than ninety one hundred eighty-two (90182) days after its receipt
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by the sheriff, issuance by the clerk of the court to the clerk with whom the
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judgment roll is filed. When the execution is returned, the clerk must at-
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tach it to the judgment roll and record the execution and the return thereto
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at large, and certify the same under his hand as true copies in a book to be
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called the "execution book," which book must be indexed with the names of
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the judgment creditors and judgment debtors in execution alphabetically ar-
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ranged, and kept open at all times during office hours for the inspection of
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the public without charge. It is evidence of the contents of the originals
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whenever they, or any part thereof, may be destroyed, mutilated or lost.
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amended to read as follows:
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11-703. GARNISHMENT -- SERVICE OF WRIT OF EXECUTION OR GARNISHMENT
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-- FINANCIAL INSTITUTIONS. (1) Upon receiving written directions from the
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judgment creditor or his attorney, that any person or corporation, public or
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private, has in his or its possession or control, any credits or other per-
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sonal property belonging to the judgment debtor, or is owing any debt to the
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judgment debtor upon issuance of a writ by the clerk of the court pursuant to
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person, or corporation, public or private, that has in his or its possession
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or control any credits or other personal property belonging to the judgment
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debtor, or is owing any debt to the judgment debtor identified in the judg-
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ment creditor's written directions all of the following documents:
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(a) A copy of the writ;
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(b) A notice that such credits, or other property, or debts, as the case
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may be, are attached in pursuance of such writ;
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(c) A notice of exemptions available under federal and state law;
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(d) Instructions to debtors and third parties for asserting a claim of
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exemption;
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(e) A form for making a claim of exemption with two (2) pre-addressed
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envelopes, one (1) to the sheriff or creditor serving the above docu-
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ments and one (1) to the issuing court; and
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(f) If the garnishee is a financial institution, a search fee of five
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dollars ($5.00) and the last known mailing address of the judgment
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debtor and, if known, a tax identification number that will enable the
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garnishee to identify the judgment debtor on its records.
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The documents specified in paragraphs (c) through (e) of this subsection
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(2) In case of service upon a corporation including, but not limited to,
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any financial institution, the same may be had by delivering a copy of the
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papers to be served, if upon a private corporation, to any officer, manager
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or designated agent or designated electronic filing service thereof, and if
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upon a public or municipal corporation, to the mayor, president of the coun-
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cil or board of trustees, or any presiding officer, or to the secretary or
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clerk thereof.
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(3) In the event a financial institution operates more than one (1) of-
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nate a particular office or electronic filing service for the service of at-
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tachment, execution and garnishment papers. Such office may be located ei-
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shall post the list of such designated offices and electronic filing ser-
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vices on its web page for access by the public.
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If a financial institution operating more than one (1) office where de-
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posits are received has designated a particular office or electronic filing
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service for the attachment, execution, or garnishment, then service of such
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papers made on the office or electronic filing service so designated shall be
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valid and effective as to moneys to the judgment debtor's credit held in the
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possession or control of any of the financial institution's branches or of-
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If service of the attachment, execution or garnishment papers is not
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made on the designated office or electronic filing service of the financial
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institution, but instead is made on another office of the financial institu-
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and effective as to moneys to the judgment debtor's credit in that particular
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office and as to other personal property belonging to the judgment debtor
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held in the possession or control of that particular office, but shall only
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become valid and effective as to moneys to the judgment debtor's credit held
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in the possession or control of any of the financial institution's other of-
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fices upon receipt of the attachment, execution or garnishment papers by the
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designated office or electronic filing service. Such financial institution
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may, but is under no obligation to, transmit the original or a copy of the
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papers from the particular office served to the designated office.
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Service on any financial institution is effective as against the moneys
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and other personal property to the judgment debtor's credit which are in the
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possession or control of the financial institution named in the garnishment,
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but not any affiliate, parent or subsidiary not named. If the garnishment
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fails to sufficiently distinguish the financial institution from any affil-
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iate, parent or subsidiary thereof, such that it is not clear which entity is
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intended to be the garnishee, the garnishment may be returned unsatisfied.
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(4) The provisions of this section and sections 11-706, 11-707, 11-709
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amended to read as follows:
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11-704. EMPLOYER -- CONTINUOUS GARNISHMENT. When the garnishee is the
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employer of the judgment debtor, the judgment creditor, upon application to
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the court, shall have issued by the clerk of court, a continuing garnishment
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directing the employer-garnishee to pay to the sheriff such future moneys
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coming due to the judgment debtor as may come due to said judgment debtor
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as a result of the judgment debtor's employment. This continuing garnish-
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ment shall continue in force and effect until the judgment is satisfied.
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The judgment creditor shall be solely responsible for ensuring that the
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amounts garnished do not exceed the amount due on the judgment. If addi-
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tional garnishments are issued during the term of a continuing garnishment
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and the continuing garnishment is the maximum allowed under the provisions
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nishments cannot be served until the continuing garnishment is satisfied, or
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until unless the amount taken by the continuing garnishment is less than the
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maximum allowed. Additional garnishments shall be satisfied in the order
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in which they are served on the employer. Additional garnishments issued
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during the term of a continuing garnishment must be served in the order in
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which presented returned to the court as unsatisfied if no payments are made
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on the additional garnishments within one hundred eighty-two (182) days of
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its issuance by the clerk of the court.
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amended to read as follows:
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11-705. SHERIFF'S RETURNS ON CONTINUOUS WAGE GARNISHMENT AND CONTIN-
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UOUS GARNISHMENT FOR CHILD SUPPORT. (1) In the case of continuing garnish-
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ments for wages, the sheriff shall file interim returns shall be filed at in-
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tervals not to exceed fourteen (14) days, whenever the amount collected in
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the fourteen (14) day period is at least one hundred dollars ($100), but in
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any event, interim returns on such continuous garnishment shall be filed by
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the sheriff at intervals not to exceed sixty (60) days.
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(2) Where an execution or garnishment against earnings or unemployment
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benefits for a delinquent child support obligation is served upon any person
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ment debtor, the execution and the garnishment shall operate continuously
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empt portion of earnings or unemployment benefits at each succeeding earn-
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ings or unemployment benefits disbursement interval until released by the
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sheriff at the written request of the judgment creditor or until the judgment
41
for child support debt, in the dollar amount specifically set forth on the
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writ of execution and subject to garnishment as of the date the writ of exe-
43
cution is issued, is discharged or satisfied in full; provided however, that
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interim returns on such continuous execution or garnishment shall be filed
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by the sheriff at intervals not to exceed fourteen (14) days, whenever the
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amount collected in the fourteen (14) day period is at least equal to fifty
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dollars ($50.00), but in any event, interim returns on such continuous gar-
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nishment shall be filed by the sheriff at intervals not to exceed thirty (30)
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days. The proportion of earnings subject to garnishment as compared to to-
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tal available earnings or unemployment benefits shall be limited to the per-
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centage restrictions on garnishment of wages for child support as provided
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amended to read as follows:
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11-706. DOCUMENTS TO BE PROVIDED BY JUDGMENT CREDITOR -- DUTIES OF
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SHERIFF -- SERVICE AND MAILING CRITERIA -- TIME COMPUTATION. With respect to
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any garnishment or execution If the issued writ is directed to the sheriff,
10
the judgment creditor shall provide the sheriff with sufficient copies of
11
the writ and other documents required to be served for service on the judg-
12
ment debtor and each additional party identified in the judgment creditor's
13
written directions and shall provide an envelope addressed to each person
14
required to be served. If the documents are to be mailed, proper postage
15
shall be affixed. The sheriff shall not delay service for lack of sufficient
16
copies or postage and shall make any additional copies and affix any addi-
17
tional postage necessary. The sheriff may charge the judgment creditor for
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the actual costs of any additional copies and postage required, which costs
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Personal service shall be accomplished in the same manner provided for
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with a facsimile or electronic mail acknowledgment of such service by the
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garnishee. Unless otherwise provided to the contrary, the date when an item
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and the date of service shall be the date when the garnishee signs the return
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receipt for the certified mail or the date the garnishee sends its facsim-
30
ile or electronic mail acknowledgment of service. In computing any period of
31
time within which an act is to be accomplished, the day of the act after which
32
the designated period of time begins to run is not to be included. The last
33
day of the period so computed is to be included, unless it falls on a weekend
34
or legal holiday, in which event the period runs until the close of business
35
of the first business day after the weekend or holiday, except that this pro-
36
vision shall not extend the time within which hearing on a motion to contest
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a claim of exemption or third-party claim must be set as provided in section
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If the issued writ is directed to the sheriff to serve, tThe sheriff
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shall not be required to investigate or assure the accuracy and completeness
41
of the addresses of the parties to be served or any other information pro-
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vided by the judgment creditor.
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amended to read as follows:
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11-707. FORMS FOR NOTICE OF EXEMPTIONS, INSTRUCTIONS TO DEBTORS AND
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THIRD PARTIES AND CLAIM OF EXEMPTION. The forms used for notice of exemp-
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tions, instructions to debtors and third parties and claims of exemption
10
1
shall be those prescribed by rules promulgated or orders issued by the
2
supreme court and posted on the website of the supreme court. The forms shall
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be made available in English and Spanish language translations in the courts
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tice, written in Spanish, of the availability of these documents in Spanish
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translation shall be set forth on the notice of exemptions.
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amended to read as follows:
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11-709. SERVICE ON JUDGMENT DEBTOR AND THIRD PARTIES BY SHER-
10
IFF. Within two (2) business days after service of the writ and other
11
12
financial institution, within one (1) business day, the sheriff or judgment
13
creditor shall hand deliver or mail to the judgment debtor and any third
14
party named in the judgment creditor's written directions as a co-owner, or
15
having an interest in the property or money to be levied upon, one (1) copy
16
of all the documents and, if the garnishee is a financial institution, the
17
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The judgment creditor shall identify in the judgment creditor's written di-
19
rections the last known mailing address of the judgment debtor and any third
20
party to be served. The sheriff return of the writ filed with the court shall
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indicate on the return of the writ filed with the court the date and manner of
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service upon the judgment debtor and any third party and shall indicate the
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documents served.
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If at the time of service of the writ the sheriff or judgment creditor
25
receives written answer from the garnishee stating that it has no money or
26
other personal property belonging or owing to the judgment debtor, compli-
27
ance with the provisions of this section shall not be required.
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amended to read as follows:
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11-710. SERVICE ON JUDGMENT DEBTOR AND THIRD PARTIES BY A FINANCIAL
31
INSTITUTION. If the writ and notice of garnishment are served upon a finan-
32
cial institution holding money or accounts belonging to the judgment debtor,
33
the garnishee shall, within three (3) business days after such service, mail
34
or hand deliver a copy of all documents served upon it by the sheriff:
35
(1) To the judgment debtor at the address to which account statements or
36
other pertinent account documentation are normally sent, or if the money is
37
not in an account, to the last known address of the judgment debtor shown upon
38
the records of the garnishee at the time of service upon it of the writ; and
39
(2) To any other person shown upon the records of the garnishee as a
40
co-owner or having an interest in the money or accounts garnished at the last
41
known address of the third party shown upon the records of the garnishee at
42
the time of service upon it of the writ.
43
The financial institution shall be entitled to deduct a single fee of
44
not to exceed ten dollars ($10.00) from the money transferred to the sher-
45
iff pursuant to the garnishment to cover the costs associated with the pro-
46
cessing and service of the documents. The fee herein provided shall be the
47
only processing and service fee to which the financial institution is enti-
11
1
tled, regardless of the number of parties to which documents are sent, and
2
3
Code. Upon being notified by the sheriff that money transferred pursuant to
4
notification of the release of the garnishment has been released as a result
5
of a court determination that the money is exempt or a failure by the judgment
6
creditor to contest the claim of exemption, the garnishee shall recredit the
7
fee to the judgment debtor's account or reimburse the judgment debtor there-
8
for and the judgment creditor shall reimburse the garnishee for the fee.
9
The garnishee shall indicate in the answer to interrogatories as pro-
10
11
documents upon the judgment debtor and any third party as herein required but
12
shall not be required to disclose the names or addresses of any third party
13
served.
14
The garnishee shall only be required to serve on the judgment debtor,
15
and any third-party third party, copies of those documents served upon it by
16
the sheriff.
17
18
amended to read as follows:
19
11-714. FINANCIAL INSTITUTION OBLIGATIONS WHEN SERVED WITH WRIT OF
20
GARNISHMENT. (1) If a notice of garnishment is served upon a financial insti-
21
tution that has an account or accounts of the judgment debtor, the financial
22
institution shall conduct a garnishment review of all accounts in the name of
23
the judgment debtor before taking any action that may affect funds in those
24
accounts.
25
(2) The garnishment review shall be limited to the sixty-four two (642)
26
day month period immediately preceding the date of service upon the finan-
27
cial institution of the garnishment. Solely for purposes of the garnish-
28
ment review, any balance in the accounts on the sixty-fourth day immediately
29
preceding the date of service upon the financial institution of the garnish-
30
ment corresponding date of the month two (2) months earlier, or on the last
31
date of the month two (2) months earlier if the corresponding date does not
32
exist, shall be deemed to be exempt. If the financial institution deter-
33
mines, solely from information transmitted to the financial institution by
34
the payor, that one (1) or more payments of exempt funds as described in sec-
35
36
tronic deposit payment in an account of the debtor, the total balance of de-
37
posited exempt funds in the debtor account is not subject to garnishment.
38
(3) The financial institution conducting the garnishment review need
39
only review information transmitted to the financial institution by the
40
payor of direct or electronic deposit payments in making its determination
41
that funds in the accounts are of the types of payments described in section
42
43
the garnishment review shall have no obligation to inquire into the source
44
of funds or examine any deposit item made by any means other than direct or
45
electronic deposit, even if such review would disclose that the funds so
46
deposited may be exempt from garnishment as described in section 11-713(1),
47
48
(4) If a notice of right to garnish federal benefits from the United
49
States government or from a state child support enforcement agency is at-
12
1
tached to or included in the garnishment as provided in 31 CFR 212, the finan-
2
cial institution shall not conduct a garnishment account review under this
3
section and shall proceed on the garnishment.
4
(5) A financial institution conducting a garnishment review as re-
5
quired by this section is immune from civil liability to the garnishor,
6
judgment debtor or account owner from any act or omission with respect to the
7
garnishment review, including without limitation, any incorrect determina-
8
tion made after applying good faith methods for determining whether funds in
9
an account are exempt. If a court determines that a financial institution
10
erred in its identification of funds in an account as exempt or nonexempt,
11
the sole remedy in exemption proceedings shall be issuance of an order of the
12
court that the financial institution must adjust its actions with respect to
13
a writ of execution as soon as possible. A financial institution is not li-
14
able to an account holder or garnishor, and may not be assessed any penalty,
15
by reason of any action or inaction in good faith including:
16
(a) Failure to deliver any funds;
17
(b) Failure to refuse to deliver any funds;
18
(c) Failure to provide the required notices to an account holder;
19
(d) Customary clearing and settlement adjustments made to a judgment
20
debtor's account that affect the balance in the debtor's account; and
21
(e) Any bona fide errors that occur despite reasonable procedures im-
22
plemented by the financial institution to prevent those errors.
23
(6) (a) If the financial institution has filed an answer and no fur-
24
ther filing concerning the writ of garnishment is made within one hun-
25
dred twenty (120) days after the filing of the answer, the garnishee may
26
file, at any time thereafter, a notice of intent to terminate the writ of
27
garnishment. The notice shall:
28
(i) Contain a statement that a party may object to termination of
29
the writ by filing a response within thirty (30) days after ser-
30
vice; and
31
(ii) Be served on the judgment debtor and the judgment creditor.
32
(b) If no response is filed within thirty (30) days after service, the
33
financial institution may file a termination of the garnishment, which
34
shall release the financial institution from any further obligation to
35
hold property of the debtor.
36
37
amended to read as follows:
38
11-715. LIABILITY OF GARNISHEE. All persons having in their posses-
39
sion or under their control, any credits or other personal property belong-
40
ing to the judgment debtor, at the time of service upon them of a copy of the
41
42
be, unless such property be delivered up or transferred, or such debts be
43
paid to the sheriff or judgment creditor, liable to the judgment creditor for
44
the amount of such credits, property, or debts, until the garnishment be dis-
45
charged or any the judgment recovered by him be satisfied.
13
1
11-716. NOTICE OF GARNISHMENT -- DISCHARGE OF GARNISHEE. Any person
2
who has been served with a copy of the writ and notice as provided in sec-
3
4
deemed a garnishee, and service of copy of writ and the notice therein pro-
5
vided for, shall, for the purpose of sections 11-708, 11-711, 11-716, 11-719
6
7
nishment, and whenever any person garnishee shall have been served with no-
8
tice of garnishment as herein defined, he may discharge himself by paying
9
or delivering to the officer sheriff or judgment creditor all debts owing by
10
him to the judgment debtor, or a portion thereof sufficient to discharge the
11
claim of the judgment creditor, or any or all money of the judgment debtor
12
in his hands to a similar amount, taking a receipt therefor from the officer
13
sheriff or judgment creditor, that shall discharge such person from any and
14
all liability to the extent of such payment, and that shall be held by the
15
officer sheriff or judgment creditor subject to the orders of the court out
16
of which the writ issued.
17
18
amended to read as follows:
19
11-728. FEE FOR EMPLOYER -- GARNISHEE. When the garnishee is the em-
20
ployer of the judgment debtor, the garnishee may deduct a onetime fee to
21
cover the costs associated with administering the garnishment. The fee to
22
be deducted shall not exceed ten dollars ($10.00) and shall be deducted from
23
the employer's first answer to the writ from money remitted to the sheriff or
24
judgment creditor.
25
26
amended to read as follows:
27
28
ers of each respective county shall have the power to set sheriff's fees by
29
resolution of the board for serving an initial order of garnishment and writ
30
of execution. The board may also set an additional lesser fee for making an
31
interim return on a continuing garnishment to show disbursement of moneys
32
held by the sheriff for return service, including for receiving and paying
33
over money from any money garnishment, and including wage garnishment or fi-
34
nancial institution garnishment. These fees shall be established using cri-
35
teria determined by the board not to exceed actual costs directly incurred
36
for order of garnishment and writ of execution service.
37
(2) At the time of adoption of the resolution establishing any fee au-
38
thorized in this section, the board shall annually publish on the county web-
39
site all the criteria used to establish the total fee and the value of each
40
criterion's proportionate share of the total fee. The initial garnishment
41
and continuing service fee herein allowed shall be collected from the judg-
42
ment debtor.
43
(3) A judgment creditor may charge fees for serving a writ and levying
44
of an execution. Such fee shall not exceed the actual costs directly in-
45
curred, up to a maximum of twenty dollars ($20.00). If service is done elec-
46
tronically, a judgment creditor may not charge a fee. A judgment creditor
47
may charge a fee of two dollars ($2.00) for copying and making each interim
14
1
return on a continuing garnishment to show disbursement of moneys held by the
2
judgment creditor. The fees shall be collected from the judgment debtor as
3
an additional amount added to the writ of execution.