SENATE BILL REPORT

SHB 1368

BYHouse Committee on Judiciary (originally sponsored by Representative Armstrong)

Revising provisions on enforcement of judgments.

House Committe on Judiciary

Senate Committee on Law & Justice

Senate Hearing Date(s):February 23, 1988; February 25, 1988

Majority Report:  Do pass as amended.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Halsan, Hayner, Madsen, Nelson, Newhouse, Niemi, Talmadge.

Senate Staff:Dick Armstrong (786-7460)

                  February 26, 1988

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 25, 1988

BACKGROUND:

The 1987 Legislature enacted a major revision of the law relating to the enforcement of judgments.  For the most part, the changes removed obsolete language or clarified the relationship of the various methods of enforcing judgments with one another.  A number of additional issues requiring resolution have been uncovered since that measure's enactment.  The following are some of the features of the law amended in 1987.

If a plaintiff who has had issued a writ of attachment for personal property receives notice that the defendant has filed for bankruptcy, the plaintiff must notify the sheriff.  If the sheriff receives notice of a bankruptcy before levying under a writ of attachment, he must notify the plaintiff and if the writ has been executed, he must notify the bankruptcy court.

The homestead exemption is not available against debts secured by a purchase money security agreement in a mobile home that is declared as a homestead.

Judgments of district courts may be transferred to the superior court and become a lien on the property of the judgment debtor.  Judgments may also become a lien on homestead property in excess of the value of the homestead from the time they are recorded.  There is uncertainty as to when a district court judgment transferred to superior court becomes a lien on the homestead.

Before a creditor may execute on the real property of a debtor, the creditor must file an affidavit that he or she has exercised due diligence to determine whether the debtor has sufficient non-exempt personal property to satisfy the judgment and costs and whether the debtor claims the property as a homestead.

To levy on real property, the sheriff is required to record a copy of the writ of execution with the recording officer. The sheriff levies on a vendor's interest in a real property contract by, in addition to recording the writ, serving a copy of the writ on the judgment debtor.

Prior to sale of personal property under execution, the judgment creditor, at least 30 days prior to the date of sale, must send a copy of the notice to the judgment debtor by both certified and regular mail and to the debtor's attorney.

A plaintiff may have more than one writ of attachment issued until sufficient property has been attached to satisfy the plaintiff's judgment.  The plaintiff is entitled to costs only for writs actually executed and is liable to the defendant for the costs incurred by the defendant if too much property is attached.

A plaintiff seeking garnishment prior to judgment must file with the court a bond payable to the defendant in an amount equal to double the amount of the debt claimed by the plaintiff.

A writ of garnishment directed to a financial institution may name either the institution or an individual branch as the garnishee.  The financial institution may designate a another office for receipt of service.  The writ on the financial institution may be served on either the head office or the office designated by the financial institution.  Service on a branch is only effective to attach accounts and other property of the defendant in that particular branch.

A writ of garnishment must tell the garnishee the amount that he or she must withhold.  The amount to be withheld by the garnishee includes the sum of the judgment unsatisfied, or the amount of the complaint if before judgment, interest on the judgment, and the greater of $50, statutory costs, or ten percent of the remaining judgment or the amount of the complaint.

SUMMARY:

The duty of the plaintiff who has had a writ of attachment issued to notify the sheriff is deleted.  The sheriff must notify the plaintiff if he receives notice that the debtor has filed for bankruptcy when a writ of execution or attachment has been issued.

The homestead exemption does not apply to any security interest in a mobile home that has been claimed as the homestead.

If a judgment of the district court is transferred to the superior court, the judgment does not become a lien on the property of the judgment debtor until a certified abstract of the district court judgment is filed with the recording officer.

A creditor exercises due diligence in determining the amount of non- exempt personal property of a debtor if the creditor has examined the debtor in supplemental proceedings.

The sheriff levies on a vendee's interest in a real property contract in the same manner as he or she levies on real property.  If the writ of execution is directed to a vendor's interest in a real property contract, the sheriff must also send a copy of the writ to the vendee.

The judgment creditor must file an affidavit with the court that he or she has complied with the requirement to provide notice to the debtor of the pending sale of personal property under a writ of execution.

A plaintiff may have multiple writs of garnishment issued under the same procedures and limitations as apply to multiple writs of attachment.

The bond filed by a plaintiff seeking garnishment must be in an amount double the amount of the debt claimed by the plaintiff, unless the court fixes a different amount.

The writ of garnishment directed to a financial institution must identify either the financial institution or a branch as the garnishee defendant.  The head office of the financial institution may also be considered as a separate branch.  Service on the financial institution must be either to the head office or the place designated by the financial institution for receipt of service.  A writ served on the financial institution may only attach deposits or accounts of the debtor in the financial institution.  A writ served on a branch must name the branch as the garnishee defendant and will only attach the accounts, credits, or other personal property of the debtor in the possession or control of the branch.  Property of the debtor may be garnished only through a writ of garnishment directed to a branch.

The garnishee defendant must withhold the amount of the judgment remaining unsatisfied, including taxable costs, or if before judgment, the amount claimed by the plaintiff plus estimated taxable costs.  In addition, the garnishee defendant must withhold estimated garnishment costs.  These estimated costs include the filing fee, postage, answer fees, and a garnishment attorney fee of $50.

SUMMARY OF PROPOSED SENATE AMENDMENT:

Allowable attorneys fees in a garnishment action are the greater of $50 or 10 percent of (a) the amount in the complaint or (b) the amount of the judgment which remains unsatisfied.  In addition, several technical amendments are incorporated into the bill.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Professor Rombauer, University of Washington School of Law