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CIVIL DISTRICT COURT DEBTOR CREDITOR PRACTICE
Prepared by Roy M. West, delivered in multiple Continuing Legal Education seminars
This purpose of this seminar is to discuss practice and procedure for civil cases in state District Court. The primary emphasis will be on practice and procedure in the Jefferson County District Court. Much of the seminar will focus on basic problems associated with "collection" cases, though time limitations will necessarily curtail the depth of our inquiry.
I. TYPICAL CAUSES OF ACTION--ACCOUNT PAST DUE and BREACH OF CONTRACT
Collection of delinquent debts typically arises out of either an action on a delinquent account, and/or a breach of contract, to pay for goods or services. In these situations a vendor or lessor has parted with a thing of value and the purchaser/lessee has failed to tender payments. The practitioner must identify the appropriate limitation of action and the proper venue.
A. LIMITATION OF ACTION ON A CONTRACT
Statute of Limitations on a contract action are governed by 6-2-34(4) Code of Alabama (1975). Generally, the statute of limitations for an action based on contract is six years. This six year period begins to run from the date the contract is breached. See AC Inc., v. Baker, 622 So.2d 331 (Ala. 1993). Simply then, just because a contract is entered into on a given date, does not mean that the statute begins to run from that date--the statute begins to run from the date of the breach.
One way of enlarging the period of limitations is for a partial payment to be made (1) by the party sought to be charged (2) before the Bar is Complete. See 6-2-16 Code of Ala. (1975). So, if the contract is breached on Jan. 1, 2001, and on Dec. 31, 2006 the party sought to be charged makes a payment, the statute of limitation begins to run for the collection of the remaining indebtedness on Dec. 31, 2006. See e. g., White v. Sikes, Kelly, Edwards and Bryant, 410 So.2d 66 (Ala. Civ. App. 1982). There are a couple of caveats though. Remember, that payment must be made by the party sought to be charged. If there are two obligors, and only one obligor makes the partial payment, then the statute is set anew only as to the party that made the payment. Barnett v. Wadell, 27 So.2d 1 (Ala. 1946). {Husband and wife are jointly indebted, and husband sends in a check on a joint checking account; Unless there is evidence that she assented in the payment, the Bar is not interrupted as to the wife.}
There is yet a further problem. Assume that the debtor owes the creditor multiple debts, and the debtor tenders a payment without designating which debt the payment is to apply. The creditor has the right to apply the payment as is seen fit, to any of the accounts or to all of them. Alabama case law has held that the Bar is not interrupted as to any of the debts, on the theory that it was the act of the creditor and not the act of the debtor! See Royston v. May, 71 Ala. 398 (1882). There is some language in that case that suggests this principal may not be so "debtor friendly" if the creditor gives the debtor actual notice that payments are being applied to a specific account. See Royston, generally.
B. LIMITATION OF ACTIONS ON AN ACCOUNT
In the event there is no signed contract, recovery may still be had on an action on an account. Under Alabama law, an "open account" is one in which some term of a "contract" is left open and undetermined by the parties. See e.g., Home Indem Co. v. Ball-Co Contractors, 645 F. Supp 25 (S.D. Ala. 1986). The applicable statute of limitations is a period of three years. See 6-2-37(1) Code of Ala. (1975). This statute begins to run "from the date of the last item of the account or from the time when, by contract or usage, the account is due." See Id. Just as with contract actions, partial payment tendered prior to the expiration of the Bar sets the limitation period running anew.
C. THE ACCOUNT STATED.
Another way to "enlarge" the statute of limitations on an open account is by offering proof that it is a Stated Account, otherwise known as Account Stated. Though the Court's have framed the definition of an account stated in various ways, the most comprehensive is as follows: An account stated is an (1) Account, (2) Balanced and (3) Rendered, with (4) an assent to the balance, express or implied, SO, that the demand is essentially the same as if a promissory note had been given for the balance, and in creating a stated account there must not only be a meeting of the minds as to the correctness of the statement, but a promise by the debtor, expressed or implied, for payment thereof. See e.g., Ingalls v. Ingalls Iron Works, Co., 258 F.2d 750 (5th Cir. (Ala) 1958).
The applicable statute of limitations for a stated account is six years, twice as long as that for a mere open account. See 6-2-34(5) Code of Ala. 1975. An account stated may consist of a single item or transaction. Martin v. Stoltenborg, 142 So.2d 257 (Ala. 1962). The stated account is regarded as a "new obligation." It is not founded on original liability but on the defendant's admission that a definite sum is due in the nature of a new promise, express or implied. Martin v. Stoltenborg, 142 So. 2d 257 (Ala. 1962). Thereafter, the statute begins to run in the event of non payment, and is renewed in the event of payment.
D. IMPORTANT QUESTIONS OF VENUE
Actions on contracts are to be commenced in the county of residence of the Defendant. 6-3-2 Code of Alabama (1975). See also Rule 82 A.R.C.P. All actions for work and labor may be brought in the County in which the work and labor were performed. 6-3-3 Code of Ala. (1975). Note the difference between state law and the requirements under the Federal Fair Debt Collection Practices Act which requires that an action be maintained in the county of the defendant's residence, OR, in the county in which the debtor signed the contract, OR, in the county in which the realty in located IF the action involves realty. See e.g. 15 USC 1692i.
Under state law, in the event the cause of action involves work and labor, as well as a contract, then either venue is proper. See e.g., Rush v. Thomas Ducket Construction Company, Inc., 380 So. 2d 762 (Ala. 1980). Either locale would likewise satisfy requirements under the Federal Fair Debt Collection Practices Act.
E. THE UNAVAILABLE CLIENT--ITEMIZED VERIFIED STATEMENT OF ACCOUNT
This complaint entails is an evidentiary device whereby the Plaintiff can make out a prima facie case merely by filing suit. The statute, 12-21-111 Code of Ala. (1975), provides that Plaintiff may file with his complaint a verified, itemized statement of account, and endorse on the complaint the fact that the account is verified by affidavit, and upon such filing, it is incumbent upon the defendant to file a verified response. In the event the defendant fails to file a verified response, then the accompanying affidavit is competent evidence in the case.
This statute enables counsel to proceed to trial without the presence of a witness--if the defendant fails to file a verified response. Again, in such instances, only the prima facie case is made, and if the defendant shows up and provides "competent" live testimony, all may be for naught for the Plaintiff. And don't confuse and Itemized Verified Account with a stated account. Alabama case law is clear that this Code section has no application to an action on a stated account. See e.g., Comer v. Way, 19 So. 966 (Ala. 1895).
II. JUDGMENTS VS. JUDGMENT LIENS
A. JUDGMENTS IN GENERAL
DID YOU KNOW? The judgment creditor in the state of Alabama is afforded protection under the state's Criminal Code. Anyone who "secretes, assigns, conveys or otherwise disposes of property with the intent to defraud a judgment creditor,"or who "removes property subject to execution from the state with the intent to defraud a judgment creditor" has violated 13A-9-47 of the State Code. The punishment is a class B misdemeanor, which could carry a sentence of up to six months imprisonment.
DURATION and REVIVAL A plaintiff who obtains a judgment in the Alabama state Courts will have a viable judgment for a period of ten years from the date of entry, if no execution has issued, or, if execution has issued, for a period of ten years after its issuance. Code of Ala. 6-9-191. This ten year period may be extended by reviving the judgment, which is accomplished by motion. See 6-9-192; and Littlefield v. Cupps, 371 So.2d 51 (Ala. Civ. App. 1979). Upon the filing of the motion to revive, the burden of overcoming the presumption of satisfaction is on the plaintiff, so an affidavit should accompany the motion setting forth the balance due after proper credit has been given. However, in no event shall the efficacy of a judgment extend beyond twenty years from its initial entry, as there is at that time a CONCLUSIVE presumption of satisfaction. 6-9-190 Code of Ala.. See also 6-2-32 Code of Ala.
B. THE JUDGMENT LIEN
A properly recorded certificate of judgment constitutes a lien on all of the real and personal property of a defendant that is otherwise subject to levy and sale under execution. The recordation creates the lien only in the County in which the certificate is recorded. 6-9-211. Many practitioners erroneously will record the certificate in the County in which the judgment was obtained when the defendant neither resides in nor possesses property in that County. If the defendant owns property in all of Alabama's sixty seven counties, including Bessemer and Birmingham, then in order to perfect a judgment lien on all of that property, a certificate must be recorded in each of the sixty six counties, plus in Bessemer, plus in Birmingham.
A certificate of Judgment may be obtained after the entry of judgment. In the District Courts of this state, the clerk will usually not issue the certificate until after the time for appeal has expired, though the Circuit Court clerk will issue certificates almost immediately after entry of judgment in the Circuit court. In the event that a certificate of Judgment is obtained before the expiration of 14 days in District Court, or thirty days in Circuit Court, be leery of the "automatic stay" of "proceedings to enforce a judgment" as provided in Rule 62 A.R.C.P.
DURATION AND EXTENSION
The duration of a judgment lien is ten years, and may only be extended by maintaining an action to foreclose the judicial lien, and by filing a lis pendens. See 6-9-211. Priority of competing judgment lien creditors is governed by a race to the Courthouse. See e.g., German Security Bank v. Campbell, 12 So. 436 (Ala. 1893). Generally, the judgment lien will attach to after acquired property. See e.g., In Re Duncan, 60 BR 345 (Bktcy. M.D. Ala. 1986).
C. FOREIGN JUDGMENTS
During the 1986 session, the Alabama Legislature passed the Uniform Enforcement of Foreign Judgments Act. The Act, codified at 6-9-230, et seq., provided a new remedy for domesticating foreign judgments. A foreign judgment is a judgment "of a court of the United States of any other court which is entitled to full faith and credit in this state." Id. Procedurally, Plaintiff should file a copy of the foreign judgment authenticated in accordance with an Act of Congress, along with an affidavit signed by the creditor or the creditors attorney, setting forth the following: (1) the name of the judgment debtor, (2) the last known address of the judgment debtor, (3) the name of the judgment creditor, (4) the address of the judgment creditor, and (5) a statement that the foreign judgment is valid, enforceable, and unsatisfied.
This action may only be filed in the Circuit Court, and after the filing, the Clerk will mail out a notice to the debtor that the action has been filed, and include in the notice the name and address of the creditor, and the creditor's lawyer. The lawyer should likewise mail out a copy of the notice, and file a certificate of mailing with the clerk. After thirty days, if there has been no response, the judgment is final and execution may issue. See 6-9-234.
By the express terms of this Act, the creditor is not prohibited from bringing any other action to enforce the judgment. The remedy prior to this act was to file a suit on the foreign judgment. The obvious drawback to this section is that personal service must be obtained, whereas in the Circuit Court action all that is required is the mailing, as service is deemed perfected upon mailing.
III. GARNISHMENT
Garnishment is a process to reach and subject money or effects of a defendant, under the control of a third person, for the benefit of a judgment plaintiff. 6-6-370 Code of Ala. (1975).
A. GARNISHMENT PROCEDURE
Prior to the issuance, the Plaintiff or his agent must make oath that the amount due is correct, and that garnishment is necessary to satisfy the indebtedness, and that the garnishee "is believed to be chargeable as garnishee." 6-6-391. The writ is filed in the County in which the judgment (or action) is pending. Id. After the filing of the garnishment, the garnishee must be served in accordance with the Rules of Civil Procedure. The Court has found that service is proper upon a corporate garnishee when received by an employee of the garnishee who is in a position of sufficient responsibility that it is reasonable to assume the employee will transmit notice of the garnishment to his superiors. Green v. Pike Manor, Inc., 431 So.2d 1316 (Ala. Civ. App. 1983).
The Court has likewise found that service of the garnishment upon an employee who is also the defendant is not proper service on the garnishee. See Franklin Life Ins. Co., Inc. v. Peoples Bank and Trust, 594 So.2d 67 (Ala. 1992).
The defendant is entitled to notice of the filing of the garnishment, IF THE DEFENDANT HAS NOT MADE AN APPEARANCE in the case. 6-6-394 and A.R.C.P. RULE 64A. That notice must apprise the defendant of his right to claim the property subject to garnishment as exempt. See Rule 64A A.R.C.P.
Within thirty days of service, the garnishee must make answer to the Court, UNDER OATH, whether at the time of service, there is an indebtedness due and owing to the defendant. 6-6-393. and 6-6-450. The clerk of Court has an obligation to apprise both the Judgment Creditor AND the defendant of the filing of the answer of the garnishee. Both the Judgment creditor and the defendant are afforded the opportunity to contest the answer of the Garnishee. See 6-6-450; 6-6-458; and 6-6-459. In the event that the record of the Court does not affirmatively disclose that the defendant has received notice of the filing of the Answer of the Garnishee, grounds are stated to quash the writ of garnishment. Tinnin v. Tinnin, 391 So.2d 1047 (Ala. Civ. App. 1980.)
If the garnishee makes answer of indebted to the defendant, there arises two obligations. First, the garnishee must begin withholding from the defendant's pay any monies due from the date of the service of the garnishment, and within thirty days from the first retention of any monies remit same to the Court from where the garnishment issued. See 6-10-7 Code of Ala. Thereafter, the garnishee is charged with making monthly or more frequent remittances to the Court. The statute is silent as to the creditors remedy against a garnishee who fails to remit in accordance with the statutory terms.
Second, an Employer-Garnishee is under an obligation to notify the Court within fifteen days of the defendant's cessation of employment. Here again, the statute is silent as to the Creditor's remedy in the event of the garnishee's failure to so act. See 6-10-7.
B. FAILURE OF THE GARNISHEE TO ANSWER
If the garnishee fails to appear and answer within the thirty day period after service of the writ of garnishment, then a conditional judgment MUST be entered against the garnishee, 6-6-457. Thereafter, it is incumbent upon the Plaintiff to issue to the garnishee, a notice that the conditional judgment will be made final if the garnishee does not answer. In the event the garnishee fails to make answer within thirty days after service of the notice of the conditional judgment, the judgment against the garnishee must be made final. 6-6-457. The garnishee is then fully liable on the indebtedness, and the creditor has the same rights of collection against the garnishee as against the original debtor himself.
C. PROCEDURE FOR CONTEST OF ANSWER
If the garnishee does timely answer, but the creditor disputes or otherwise disagrees with the answer, then there are available two options, both of which must be exercised within thirty days of the notice of the filing of the answer. First, the garnishee may make a "demand for oral examination" of the garnishee. The demand is accomplished by "motion." (And hence, the rules governing service of motions apply.) 6-6-450. The garnishee may be required to answer in any court in this state, regardless of how far from his home. Mathieson v. Thompson, 31 Ala. 500 (Ala. 1858). The garnishee is entitled to $3.00 per day court attendance, and 5 cents per mile round trip. See 6-6-462. The garnishee has no choice in the matter: if the Creditor timely demands the examination, the garnishee MUST appear. First National Bank v. Dimmick, 177 Ala. 571 (1912).
If the testimony adduced at the hearing is at variance with the written answer, then the Plaintiff is entitled to a judgment against the garnishee without contesting it. See Montgomery Candy Co. v. Wertheimer Shoes, 57 So. 54 (Ala.1911); {Judgment entered against Garnishee upon oral examination} See also White v. Kahn, 15 Ala. 595 (1894).
The second means of controverting the answer of the garnishee is found in 6-6-458. This Code section requires the Plaintiff to "make oath" within thirty days that he believes the answer to be untrue, and in what respect that he believes the answer to be untrue, and the case will then be tried and the right to trial by jury accorded to either party who makes the request.
The are a number of differences between these two remedies. While the request for oral examination need not be sworn and may be served as any other motion, controverting the answer must be upon oath, and in contemplation of an eventual trial, the "contest" would have to comport with the requirements of due process by requiring service of the contest by a process server. Yet another distinction between the two methods is that if the garnishee fails to appear at a Motion for oral examination, after having made an answer, the Court is without authority to enter a final judgment. See e.g. Sun Ins. Co., v. Doster, 51 So. 414 (Ala. 1909); White v. Kahn, 16 So. 595 (Ala. 1894). But if the garnishee fails to appear for a properly prepared contest, a judgment may be entered against him. Sun Ins. Co., v. Doster, 51 So. 414, at 414 (Ala. 1909).
The statute is not altogether clear as to the creditor's remedy for a garnishee's failure to appear at the Motion for Oral Examination. The only remedy appears to be striking the answer as incomplete. Alabama Code 6-6-457 provides that if the garnishee fails to "appear and answer" a conditional judgment shall be entered. Thereafter, proper remedy appears to be the filing of a notice of conditional judgment, in response to which the garnishee would have to show cause for failure to appear at the hearing.
For a discussion of the inter-relationship between these two statutes, See Buck Creek Ind., Inc. v. Alcon Construction, Inc., 438 F. Supp. 168 (N.D. Al. 1977).
D. BANK GARNISHMENTS
As for bank garnishments, there are two recent cases that could cause potential problems for the Judgment creditor. Both in Amarlite Architectural Products, Inc. v Copeland Glass Co., Inc., 601 So.2nd 414, (Ala. 1992), and Builders Supply Co., Inc., v. Smith, 620 So.2d 10 (Ala Civ. App. 1992), the Courts have muddied the water as to the status of Creditor's rights against joint bank accounts. Though the cases recognize a presumption that funds in a joint bank account belong to the debtor, that presumption is rebuttable, and may be overcome by proof tendered by the co-depositor. Id.
E. WARNING!
One last word of caution--Alabama does recognize a cause of action for "Wrongful Garnishment" or "Abuse of the Garnishment Process." Punitive damages are available if the filing of the wrongful garnishment is accompanied by malice, i.e., a purpose other than to collect the judgment. See Alabama Power Co. v. Emigh, 429 So. 2 952 (ala. 1983). Be very careful.
IV. EXECUTION
All that the creditor needs to do to start the execution process, is file with the Clerk of Court a letter which contains the case style and number under which judgment was entered, the balance due under the judgment, the address of the property, and it is strongly suggested that the legal description of the property be likewise included. The cost is $10.00 dollars and the clerk will prepare the writ which will be transmitted to the sheriff's office.
The judgment creditor does need to be careful as to how much value to bid at the execution sale. If the full amount of the judgment is bid, the execution sale will satisfy the judgment in full. In the event that the creditor later determines that the debtor owns no interest in the property, the creditor must invoke the equity jurisdiction of the Court to set aside the sale and nullify the deed. McCorkle v. McElwey, 576 So.2d 202 (Ala. 1991).
Interestingly, prior to the just cited case, there was no remedy for the Judgment creditor under such circumstances. See Id., and 6-9- 142 {Caveat Emptor applies to the purchaser at Execution.} In the event the bid price at the execution sale is too low, the Court has authority to set aside the sale. How low is too low? The Supreme Court has held that a bid of $400.00 for property worth $800.00 will stand, and the sale will not be set aside. Though the Court has phrased how low is too low in a number of ways, the most cogent expression appears to be that a bid is too low if "the inadequacy is so glaring and gross as to shock the understanding and conscience of an honest and just man." Danforth v. Burchfield, 78 So. 904 (Ala. 1918). {Bid of $159.00 for property worth from $1250.00 to $1500.00 will not withstand attack to set aside sale}.
Last but not least, assume that you obtain your sheriff's deed, and you bid an amount that would not cause an honest and just man to become nauseated, what are you going to do now? Most creditors just sit on the sheriff's deed, knowing that it will be an eternal cloud on title, as opposed to the judgment lien which is limited in duration. Eventually, they hope, the property will be conveyed and their interest paid. But in the event more aggressive, immediate action is undertaken, an action in ejectment would seem to be the only recourse, except for a bizarre ruling by the Alabama Supreme Court in Williams v. Price, 547 So.2d 862 (Ala. 1989), a case in which unlawful detainer was used to secure possession of the executed premises.
V. EXEMPTIONS
A. WAGE EXEMPTION RIGHTS
All Alabama debtors have a "built in" wage garnishment of seventy five per cent of their wages, with a floor that cannot drop below thirty times the federal minimum wage. See 6-10-7 and 5-19-16. In addition to the "built in" exemption above referenced, there is also available to the debtor a $3000.00 personal property exemption (6-10-7) for property other than wages, and a constitutional $1000.00 exemption (204) that can at times be used in addition to the "built in" exemption to accomplish a total wage shield. Sound confusing? Here's how it works.
Assume the following facts: Debtor has a judgment entered against him for $3636.14. Debtor's paycheck is in the sum of $1200.00. Debtor has other personal property, his interest of which totals $947.50. Debtor automatically received his $900.00 wage exemption under 6-10-7. The question to consider is: Can the debtor shield this additional $300.00 in wages as exempt. The answer: No. Why?
The Court of Civil Appeals addressed this very fact situation in Sink v. Advanced Collection Services, 607 So.2d 246 (Ala. Civ. App. 1992). The rationale of their conclusion is based on Roberts v. Carraway Methodist Medical Center, 591 So.2d 870 (Ala. Civ. App. 1991). That rationale is that Section 204 of the state Constitution provides an exemption floor under which the legislature cannot lower exemption rights. Further, 6-10-37, as amended, provides that no claim of exemption shall exceed the amounts provided for under the Constitution. This statutory change made the $1000.00 constitutional floor, also a ceiling, as pertains to claims of wage exemption. When the debtor in the above case asserted his claim for exemption, his exemption claim of $947.50 in personal property, and his $900.00 in "built in" exempt wages, together total $1847.50, and thereby exceed the $1000.00 minimum/maximum. Therefore, there was no "room" to accommodate his request for the $300.00 exemption for future wages.
The end result under the above fact situation is that the $300.00 is not exempt under the constitution because his $1000.00 ceiling has been surpassed, the $900.00 is exempt under 6-10-7 because that exemption is "built in" or automatic, and the $947.50 is exempt under 6-10-6, which is the $3000.00 non-wage personal property exemption statute.
Simply put, if 75% of the defendant's disposable wages, plus all of his personal property exceed $1000.00, then the remaining portion of the defendant's wages cannot be claimed as exempt. Creditor wins! If those two figures added together total less than $1000.00, then whatever the difference is between the two figures can be used to "shield" any wages in excess of 75% of the disposable earnings.
But prior to any of the foregoing being made an issue, it is incumbent upon the debtor to affirmatively assert his $3000.00 statutory non-wage exemption, or his constitutional $1000.00 exemption. The debtor must file a declaration of exemption under oath and in writing, and same must be accompanied by an inventory of his other personal property and its value. See Code section 6-10-26 and Rule 64B A.R.C.P.
Thereafter the plaintiff has ten days time within which to contest the claim of exemption, and the hearing must be held within seven days. 64B A.R.C.P. The statutory requirement is clear, the plaintiff's contest must be sworn and grounds stated! See 6-10-37 (though repealed); See 6-10-25, 6-10-26 and Rule 64B A.R.C.P. Upon a properly contested claim of exemption, the Judge will have to decide whether the debtor is entitled to claim the property as exempt.
B. WAIVER OF EXEMPTION RIGHTS
As detailed and intricate as the "exemption process" can be, under the laws of the state of Alabama the personal property exemption rights alluded to above, as well as the homestead exemption rights, can be waived--under certain circumstances. The Federal Trade Commission's "Credit Practices Rule" which became effective on March 1, 1985, prohibits, inter alia, any consumer lender or consumer seller from taking an executory waiver of exemption in a consumer credit contract. See 16 CFR 444.2(a). But in situations other than the foregoing, both the personal property exemption provisions and the homestead exemption provisions can be waived.
Alabama Code section 6-10-120 provides that "Any person, by an instrument in writing, may waive his or her right to an exemption in any property exempt from levy and sale under execution or other process." As to personal property, that waiver may be made by a separate instrument in writing, or may be made as part and parcel of the contract or other instrument creating the debt, 6-10-121. As for the homestead exemption, it may be waived only by a separate instrument in writing and that separate instrument must be attested by at least one witness. If the party is a married man, the waiver is ineffectual unless signed by the wife and acknowledged before a notary. See Id.
Most importantly, in order to give legal effect to the waiver, the fact of waiver must be (1) endorsed somewhere on the summons and complaint, (2) recited in the entry of judgment, and (3) endorsed on the execution or garnishment which is issued upon the judgment. See 6-10-123 Code of Ala.; Fears v. Thompson, 2 So. 719 (Ala. 1887).
C. OTHER EXEMPTION RIGHTS
Other state statutes provide 100% exemption for a number of benefits, 16-25-23 provides a total exemption for recipients under the teacher's retirement system. State Employee Retirement System benefits are accorded a like exemption, 36-27-28. Unemployment compensation benefits are totally sheltered, 25-4-140. And there are a number of other more specific state exemption statutes of less importance here. And federally, of greatest interest, are social security benefits and V.A. benefits. Both are exempt. See 42 USC 407(A) AND 38 USC 3101, respectively.
The foregoing was prepared by Roy M. West for delivery in Continuing Legal Education Seminars.
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