12-1501 Validity of arbitration agreement
A written agreement to submit any existing controversy to arbitration or a provision
in a written contract to submit to arbitration any controversy thereafter arising between
the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law
or in equity for the revocation of any contract.
12-1502 Proceedings to compel or stay arbitration
A. On application of a party showing an agreement described in section 12-1501, and
the opposing party's refusal to arbitrate, the court shall order the parties to proceed
with arbitration, but if the opposing party denies the existence of the agreement to
arbitrate, the court shall proceed summarily to the determination of the issue so raised
and shall order arbitration if found for the moving party. Otherwise, the application
shall be denied.
B. On application, the court may stay an arbitration proceeding commenced or
threatened on a showing that there is no agreement to arbitrate. Such an issue, when in
substantial and bona fide dispute, shall be forthwith and summarily tried and the stay
ordered if found for the moving party. If found for the opposing party, the court shall
order the parties to proceed to arbitration.
C. If an issue referable to arbitration under the alleged agreement is involved in
an action or proceeding pending in a court having jurisdiction to hear applications under
subsection A of this section, the application shall be made therein. Otherwise and
subject to section 12-2101, the application may be made in any court of competent
jurisdiction.
D. Any action or proceeding involving an issue subject to arbitration shall be
stayed if an order for arbitration or an application therefor has been made under this
section or, if the issue is severable, the stay may be with respect thereto only. When
the application is made in such action or proceeding, the order for arbitration shall
include such stay.
E. An order for arbitration shall not be refused on the ground that the claim in
issue lacks merit or bona fides or because any fault or grounds for the claim sought to
be arbitrated have not been shown.
12-1503 Appointment of arbitrators by court
If the arbitration agreement provides a method of appointment of arbitrators, this
method shall be followed. In the absence thereof, or if the agreed method fails or for
any reason cannot be followed, or when an arbitrator appointed fails or is unable to act
and his successor has not been duly appointed, the court on application of a party shall
appoint one or more arbitrators. An arbitrator so appointed has all the powers of one
specifically named in the agreement.
12-1504 Majority action by arbitrators
The powers of the arbitrators may be exercised by a majority unless otherwise
provided by the agreement or by this article.
12-1505 Hearing
Unless otherwise provided by the agreement:
1. The arbitrators shall appoint a time and place for the hearing and cause
notification to the parties to be served personally or by registered mail not less than
five days before the hearing. Appearance at the hearing waives such notice. The
arbitrators may adjourn the hearing from time to time as necessary and, on request of a
party and for good cause, or upon their own motion, may postpone the hearing to a time
not later than the date fixed by the agreement for making the award unless the parties
consent to a later date. The arbitrators may hear and determine the controversy upon the
evidence produced notwithstanding the failure of a party duly notified to appear. The
court on application may direct the arbitrators to proceed promptly with the hearing and
determination of the controversy.
2. The parties are entitled to be heard, to present evidence material to the
controversy and to cross-examine witnesses appearing at the hearing.
3. The hearing shall be conducted by all the arbitrators but a majority may
determine any question and render a final award. If, during the course of the hearing,
an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators
appointed to act as neutrals may continue with the hearing and determination of the
controversy.
12-1506 Representation by attorney
A party has the right to be represented by an attorney at any proceeding or hearing
under this article. A waiver thereof prior to the proceeding or hearing is ineffective.
12-1507 Witnesses; subpoenas; depositions
A. The arbitrators may cause to be issued subpoenas for the attendance of witnesses
and for the production of books, records, documents and other evidence, and shall have
the power to administer oaths. Subpoenas so issued shall be served, and, upon application
to the court by a party or the arbitrators, enforced, in the manner provided by law for
the service and enforcement of subpoenas in a civil action.
B. On application of a party and for use as evidence, the arbitrators may permit a
deposition to be taken, in the manner and upon the terms designated by the arbitrators,
of a witness who cannot be subpoenaed or is unable to attend the hearing.
C. All provisions of law compelling a person under subpoena to testify are
applicable.
D. Fees for attendance as a witness shall be the same as for a witness in the
superior courts of the state of ARIZONA.
12-1508 Award
A. The award shall be in writing and signed by arbitrators joining in the
award. The arbitrators shall deliver a copy to each party personally or by registered
mail, or as provided in the agreement.
B. An award shall be made within the time fixed therefor by the agreement or, if
not so fixed, within such time as the court orders on application of a party. The
parties may extend the time in writing either before or after the expiration thereof. A
party waives the objection that an award was not made within the time required unless he
notifies the arbitrators of his objection prior to the delivery of the award to him.
12-1509 Change of award by arbitrators
On application of a party or, if an application to the court is pending under
sections 12-1511, 12-1512, or 12-1513, on submission to the arbitrators by the court
under such conditions as the court may order, the arbitrators may modify or correct the
award upon the grounds stated in paragraphs 1 and 3 of subsection A of section 12-1513,
or for the purpose of clarifying the award. The application shall be made within twenty
days after delivery of the award to the applicant. Written notice thereof shall be given
forthwith to the opposing party, stating he must serve his objections thereto, if any,
within ten days from the notice. The award so modified or corrected is subject to the
provisions of sections 12-1511, 12-1512 and 12-1513.
12-1510 Fees and expenses of arbitration
Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses
and fees, together with other expenses, not including counsel fees, incurred in the
conduct of the arbitration, shall be paid as provided in the award.
12-1511 Confirmation of an award
A party seeking confirmation of an award shall file and serve an application
therefor in the same manner in which complaints are filed and served in civil
actions. Upon the expiration of twenty days from service of the application, which shall
be made upon the party against whom the award has been made, the court shall enter
judgment upon the award unless opposition is made in accordance with section 12-1512.
12-1512 Opposition to an award
A. Upon filing of a pleading in opposition to an award, and upon an adequate
showing in support thereof, the court shall decline to confirm and award and enter
judgment thereon where:
1. The award was procured by corruption, fraud or other undue means;
2. There was evident partiality by an arbitrator appointed as a neutral or
corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
3. The arbitrators exceeded their powers;
4. The arbitrators refused to postpone the hearing upon sufficient cause being
shown therefor or refused to hear evidence material to the controversy or otherwise so
conducted the hearing, contrary to the provisions of section 12-1505, as to prejudice
substantially the rights of a party; or
5. There was no arbitration agreement and the issue was not adversely determined in
proceedings under section 12-1502 and the adverse party did not participate in the
arbitration hearing without raising the objection; but the fact that the relief was such
that it could not or would not be granted by a court of law or equity is not ground for
vacating or refusing to confirm the award.
B. In declining to confirm an award on grounds other than stated in paragraph 5 of
subsection A the court may order a rehearing before new arbitrators chosen as provided in
the agreement, or in the absence thereof, by the court in accordance with section
12-1503, or if the court declines to confirm the award on grounds set forth in paragraphs
3 and 4 of subsection A the court may order a rehearing before the arbitrators who made
the award or their successors appointed in accordance with section 12-1503. The time
within which the agreement requires the award to be made is applicable to the rehearing
and commences from the date of the order.
12-1513 Modification or correction of award
A. Upon application made within ninety days after delivery of a copy of the award
to the applicant, if judgment has not been entered thereon, the court shall modify or
correct the award where:
1. There was an evident miscalculation of figures or an evident mistake in the
description of any person, thing or property referred to in the award;
2. The arbitrators have awarded upon a matter not submitted to them and the award
may be corrected without affecting the merits of the decision upon the issues submitted;
or
3. The award is imperfect in a matter of form, not affecting the merits of the
controversy.
B. If the application is granted, the court shall modify and correct the award so
as to effect its intent and shall confirm the award as so modified and
corrected. Otherwise, the court shall confirm the award as made.
C. An application to modify or correct an award may be joined in the alternative
with an application to vacate the award.
D. After judgment, the award shall be subject to the powers of the court in the
same manner as any other judgment which may be subject to review under rule 60(c) of the
rules of civil procedure.
12-1514 Judgment or decree on award
Upon the granting of an order confirming, modifying or correcting an award, judgment
or decree shall be entered in confirmity therewith and be enforced as any other judgment
or decree. Costs of the application and of the proceedings subsequent thereto, and
disbursements may be awarded by the court.
12-1515 Applications to court
Except as otherwise provided, an application to the court under this article shall
be by motion and shall be heard in the manner and upon the notice provided by law or rule
of court for the making and hearing of motions. Unless the parties have agreed
otherwise, notice of an initial application for an order shall be served in the manner
provided by law for the service of a summons in an action.
12-1516 Court; jurisdiction and venue
The term "court", as used in this article, means the superior courts of the state of
ARIZONA, and venue of the appropriate superior court shall be determined as in any other
civil action. The initial application having been made to a court of appropriate venue,
all subsequent applications shall be made to the same court unless that court otherwise
directs.
12-1517 Limited effect of article
This article shall have no application to arbitration agreements between employers
and employees or their respective representatives.
12-1518 State and political subdivisions; use of arbitration
A. In the discretion of any state agency, board or commission or any political
subdivision of this state, the services of the American arbitration association, or any
other similar body, may be used as provided by this article. Any agreement to make use
of arbitration shall be made either at the time of entering into a contract or by written
mutual agreement at a subsequent time prior to the filing of any civil action.
B. Notwithstanding subsection A of this section, a state agency, board or
commission shall include an agreement to make use of arbitration in all contracts which
are subject to mandatory arbitration pursuant to rules adopted under section 12-133.
C. Notwithstanding subsection A or B of this section, a state agency, board or
commission shall include an agreement to make use of arbitration as provided in this
article in public works contracts if the amount in controversy is less than one hundred
thousand dollars.
12-1521 Attachment of property of defendant
A plaintiff, after complying with the provisions of chapter 14 of this title, may in
the following cases have the property of the defendant attached as security for
satisfaction of any judgment which may be recovered, unless the defendant gives security
to pay such judgment:
1. In an action upon a contract, express or implied, for payment of money which is
not fully secured by real or personal property, or, if originally so secured, the value
of such security has, without any act of the plaintiff or the person to whom the security
was given, substantially diminished below the balance owed.
2. When an action is pending for damages and the defendant is about to dispose of
or remove his property beyond the jurisdiction of the court in which the action is
pending.
3. In an action for damages or upon contract, express or implied, against a
defendant not residing in this state or a foreign corporation doing business in this
state.
4. In an action upon a judgment of any state.
12-1522 Affidavit for issuance of writ of attachment
The clerk or justice of the peace, after complying with the provisions of chapter 14
of this title, shall issue the writ of attachment upon receiving an affidavit by or on
behalf of plaintiff, showing any one or more of the requirements for a writ of attachment
as set forth in section 12-1521.
12-1523 Issuance of writ for debt or demand not due; affidavit; trial; judgment
A. After entry of an order pursuant to the requirements of chapter 14 of this
title, a writ of attachment may issue although the plaintiff's debt or demand is not due,
but final judgment shall not be rendered against the defendant until the debt or demand
is due.
B. To obtain an attachment for a debt or demand not due, the plaintiff may file
with the clerk or justice of the peace a complaint and shall file an affidavit showing:
1. That the defendant is indebted to the plaintiff upon a contract, express or
implied, for the direct payment of money, stating the amount, and that the debt is not
due.
2. That such contract was made or is payable in this state.
3. That payment of the debt has not been secured by a mortgage, pledge or lien.
4. The character of the debt sued for.
5. That there are no legal setoffs or counterclaims against the debt.
6. That the defendant is about to remove permanently from the state and has refused
to secure the debt, or that he has secreted his property for the purpose of defrauding
his creditors, or that he is about to remove his property from the state without leaving
sufficient property remaining for payment of his debts, or that he has disposed of his
property wholly or in part with intent to defraud his creditors, or that he is about to
dispose of his property with intent to defraud his creditors.
C. The affidavit shall further state that the attachment is not sued out for the
purpose of injuring or harassing the defendant and that the plaintiff will probably lose
his debt unless the attachment is issued.
D. The facts set forth in the affidavit filed under this section may be denied by
the defendant, and the issue so formed shall be tried as other questions of fact.
E. If judgment is for the defendant, the court shall fix and include in the
judgment a reasonable attorney's fee and shall enter judgment therefor against the
sureties upon the attachment bond.
12-1524 Attachment bond of plaintiff
Before issuance of a writ of attachment, plaintiff shall execute and file a bond
payable to defendant in an amount not less than the amount for which action is brought,
to be approved by the officer issuing the writ, conditioned that plaintiff will prosecute
his action to effect and will pay all damages and costs as may be sustained by defendant
by reason of the wrongful obtaining of the attachment.
12-1525 Quashing of writ; criteria of validity of affidavit and bond
A. Every attachment issued without the affidavit and bond shall be quashed on
motion of defendant.
B. The affidavit and bond shall not be void for want of form if they contain all
essential matters.
12-1526 Issuance of writ; contents
After compliance with the provisions of chapter 14 of this title and upon the
execution and filing of the affidavit and bond, the superior court judge or justice of
the peace shall immediately issue a writ of attachment directed to the sheriff or any
constable of any county where property of defendant is supposed to be, commanding him to
attach so much of the property as will be sufficient to satisfy the demand of plaintiff
and the probable costs of the action.
12-1528 Issuance of writ to several counties; form of writ; delivery for service
A. Several writs of attachment may, at the option of plaintiff, be issued at the
same time or in succession and sent to different counties until sufficient property is
attached to satisfy the writ.
B. The writ may be in the following form:
"The State of ARIZONA.
"To the sheriff or any constable of ___________________ county, greeting:
"We command that you attach forthwith so much property of C. D., if to be found in
your county, as is of value sufficient to make the sum of _____________ dollars, and the
probable costs of the action, to satisfy the demand of A. B., and that you keep and
secure in your hands the property so attached, unless replevied, so that such property
may be liable to further proceedings thereon, to be had before the court, and that you
make return of this writ showing how you have executed it."
C. The writ shall be dated and attested as other writs, and may be delivered by the
issuing officer to the sheriff or a constable, or he may deliver it to the plaintiff for
that purpose.
12-1529 Execution of writ; indemnity bond for attaching officer
A. The officer receiving the writ shall immediately execute it by levying upon so
much property of defendant subject to levy under the writ and found within his county as
is sufficient to satisfy the writ.
B. The officer shall levy the writ at his own risk, but he may require the
plaintiff in attachment to execute and deliver to him a bond of indemnity to secure him
if it should afterward appear that the property levied upon does not belong to defendant.
12-1530 Levy of writ; attachment of real or personal property
A. The writ of attachment shall be levied in the same manner as a writ of
execution.
B. When real property is attached the officer shall also serve a copy of the writ
upon the defendant whose property is attached as a summons is served in a civil action,
and make return thereof. If the officer is unable to serve the writ upon defendant, he
shall post the writ in a conspicuous place upon the property and so make his return.
C. When personal property is attached the property shall remain in the custody of
the officer until final judgment, unless taken from his custody as provided by law.
D. In the execution of a writ, the officer may enter on the lands, and into the
residence or other building owned, occupied or controlled by the defendant.
12-1531 Return of writ; duties of officer; further return
A. An officer executing a writ of attachment shall return the writ with his action
endorsed thereon or attached thereto and signed by him, to the court from which it issued
within thirty days after date of the levy.
B. The return shall describe the property attached with sufficient certainty to
identify it and shall state when it was attached and whether any personal property
attached still remains in his custody, and if not, the disposition made of the property.
C. When personal property has been replevied the officer shall deliver the replevin
bond to the clerk or justice to be filed in the action.
D. When the property levied on is claimed, replevied or sold after the return, the
officer shall immediately make a further return to the clerk or justice of the peace
showing the disposition of the property.
12-1532 Levy of attachment as lien on property; satisfaction of lien
A. The levy of the writ of attachment upon any property of defendant subject
thereto is a lien from the date of the levy on the real property and on such personal
property as remains in the custody of the attaching officer and on the proceeds of such
personal property as is sold.
B. If plaintiff is given judgment, the court shall in the judgment order the
proceeds of the personal property, if sold, to be applied to satisfaction of the
judgment, and order the sale of the personal property remaining in the custody of the
officer and of the real property levied on to satisfy the judgment, and the clerk of the
court or justice of the peace shall issue special execution therefor.
12-1533 Attachment of perishable property; sale; procedure
A. When personal property which has been attached is not claimed or replevied, the
court or justice of the peace out of whose court the writ was issued may order it to be
sold, when it appears that the property is in danger of serious and immediate waste or
decay, or that keeping it until trial will result in such expense or deterioration in
value as greatly to lessen the amount likely to be realized therefrom.
B. In ascertaining whether the property is in danger of serious and immediate waste
or decay or that keeping of the property until trial will result in such expense or
deterioration in value as greatly to lessen the amount likely to be realized therefrom,
the court or justice of the peace may require or dispense with notice to the parties and
may act upon such information, by affidavit, certificate of the attaching officer or
other proof, as appears sufficient to protect the interest of the parties.
C. The sale shall be conducted in the same manner as sales of personal property
under execution, except as to time of advertisement, which may be fixed by the court or
justice of the peace for a shorter period.
12-1534 Disposition of proceeds of sale of perishable property; report of sale
The proceeds of the sale as provided in section 12-1533 shall, within five days
after the sale, be paid by the officer making the sale to the clerk of the court or
justice of the peace, accompanied by a statement in writing and signed by such officer,
to be filed in the action, stating the time and place of sale, the name of the purchaser
and the amount received with an itemized account of the expense of sale.
12-1535 Preservation of personal property under attachment
If personal property in custody of an officer under a writ of attachment is not
replevied, claimed or sold, the court or justice of the peace may make such order for its
preservation or use as appears to be to the interest of the parties.
12-1536 Replevin of attached property by defendant; bond
At any time before judgment, if the property is not previously claimed or sold,
defendant may replevy the property or any part thereof by giving bond to be approved by
the officer who levied the writ, payable to plaintiff in double the amount of plaintiff's
debt, or, at defendant's option, for the value of the property replevied as estimated by
such officer, conditioned that defendant will satisfy the judgment which may be rendered
in the action, or will pay the estimated value of the property with lawful interest
thereon from the date of the bond.
12-1537 Restoration of property or exoneration of bond; levy on exempt property
A. If the attachment is vacated or if the judgment is for defendant, the court
shall order the property restored to defendant or exonerate the claim or replevin bond.
B. When any property claimed to be exempt is levied upon, defendant may, any time
after such levy, apply to the court for vacation of such levy. If it appears to the
court that the property so levied upon was exempt, the court shall order the levy vacated
and the property returned to defendant.
12-1538 Judgment where personal property replevied
When personal property under attachment has been replevied, the judgment shall also
be against defendant and the sureties on his replevin bond for the amount of the
judgment, interest and costs, or for the value of the property replevied and interest
according to the terms of the bond.
12-1551 Issuance of writ of execution; limitation; renewal; death of judgment debtor; exemptions
A. The party in whose favor a judgment is given, at any time within five years
after entry of the judgment and within five years after any renewal of the judgment
either by affidavit or by an action brought on it, may have a writ of execution or other
process issued for its enforcement.
B. An execution or other process shall not be issued upon a judgment after the
expiration of five years from the date of its entry unless the judgment is renewed by
affidavit or process pursuant to section 12-1612 or an action is brought on it within
five years from the date of the entry of the judgment or of its renewal.
C. The court shall not issue a writ of execution after the death of the judgment
debtor unless it is for the recovery of real or personal property or enforcement of a
lien.
D. This section does not apply to:
1. Criminal restitution orders entered pursuant to section 13-805.
2. Written judgments and orders for child support and spousal maintenance and to
associated costs and attorney fees.
3. Judgments for supervision fees or expenses associated with the care of a
juvenile pursuant to section 8-241 or 8-243 and to associated costs and attorney fees. 12-1552 Types of executions; form
A. Executions are either general or special.
1. A general execution is one which commands the officer to whom it is addressed to
make the amount of the judgment out of property of the judgment debtor without specifying
the particular property.
2. A special execution is one which commands the officer to whom it is addressed to
sell certain specific property, or to deliver certain specific real or personal property
to the party adjudged to be entitled thereto.
B. All executions shall be issued in the name of the state, signed by the clerk and
sealed with the seal of the court, directed to the sheriff or other officer of the county
where service is to be made, and shall refer to the judgment, the court where entered and
the date of entry.
12-1553 General execution
A general execution shall state the amount of the judgment and costs and the amount
due thereon, and shall require the officer:
1. If the execution is against the property of the judgment debtor, to satisfy the
judgment, with interest, out of the personal property of the debtor, and if sufficient
personal property cannot be found, then out of his real property.
2. If the judgment is a lien upon real property, then to satisfy the judgment out
of the real property belonging to the judgment debtor on the day when the judgment became
a lien or at any time thereafter, but if the execution is issued to a county or from the
court of a county other than the one in which the judgment was given, on the day when the
judgment was docketed in the office of the clerk of the superior court of such county.
3. If the execution is against real or personal property in possession of heirs,
devisees, legatees, tenants or trustees, to satisfy the judgment out of such property.
12-1554 Special execution
A special execution shall set forth in substance the portions of the judgment which
command the sale or delivery of specific property and the amount of costs or damages, if
any, and shall require the officer:
1. If the judgment directs the sale of specific real or personal property, to make
sale of such property as directed in the judgment.
2. If the judgment is for the delivery of possession of real or personal property,
to deliver possession of the property to the party entitled thereto, and at the same time
to satisfy any costs, damages, rents, or profits given by the same judgment, out of the
personal property of the person against whom the judgment was given, and the value of the
property for which judgment was given shall be specified in the officer's return if a
delivery cannot be had. If sufficient personal property cannot be found, the judgment
shall be satisfied out of the real property as in the case of a general execution.
12-1555 Return of execution
A. An execution shall be made returnable to the clerk of the court issuing it at
any time not less than ten nor more than ninety days after its receipt by the officer to
whom directed.
B. When the execution is returned the clerk shall note in the proper docket or book
the amount made by the officer, and to whom paid, and attach the execution to the record
of the proceedings.
12-1556 Judgment requiring performance of other acts; service
When a judgment requires the performance of any act other than is designated in the
preceding sections of this article, a certified copy of the judgment shall be served upon
the party against whom the judgment was given, or upon the person required by the
judgment or by law to obey it. Obedience thereto may be enforced by the court by the
power to punish for contempt.
12-1557 Issuance of writ to several counties
A. A general execution may be issued to the sheriff of any county in the state, and
executions may be issued at the same time, or different times, to different counties.
B. A special execution requiring sale of specific property, or delivery of real or
personal property shall be issued to the sheriff of the county where the property, or
some part thereof, is situated.
12-1558 Property subject to execution
A. All property, real and personal, not exempt by law, and all property and rights
of property seized and held under attachment or garnishment in an action, are liable to
execution.
B. Shares and interests in a corporation, and debts and credits, choses in action,
and all other property, or any interest therein, legal or equitable, not capable of
manual delivery, may be levied upon and sold under execution.
12-1559 Levy of writ of execution; real property; personal property; livestock; shares of stock; partnership interests
The officer to whom the writ is directed shall make the levy as follows:
1. To levy on real estate it is sufficient that the officer endorse the levy on the
writ of execution and record with the county recorder of the county where the real
property is situated a copy of the writ with the endorsement of levy thereon.
2. To levy on personal property the officer shall take possession when the
defendant in execution is entitled to the possession. When the defendant in execution
has an interest in personal property but is not entitled to possession of the property, a
levy shall be made by giving notice of the levy to the person who is entitled to
possession, or to one of them when there are several.
3. To levy upon livestock running at large on a range and which cannot be herded or
penned without great inconvenience and expense, it is sufficient that the officer
designate, by reasonable estimate, the number of animals, describing them by their marks
and brands or either. Such levy shall be made in the presence of two or more persons,
and notice of the levy shall be given in writing to the owner or his herder or agent, if
residing within the county and known to the officer making the levy. A copy of the writ
and the return shall be recorded by the officer with the county recorder of the county
where the levy is made.
4. To levy on personal property which, by reason of its bulk or other cause, cannot
be immediately removed, it is sufficient that the officer, within three days after the
levy, record with the county recorder of the county in which the property is located a
certified copy of the execution and of the return of the levy thereon.
5. To levy on the stock of a corporation the officer shall proceed as provided in
section 47-8112.
6. To levy on the interest of a partner in partnership property the officer shall
leave notice with one or more of the partners or with a clerk of the partnership.
12-1560 New trial after service by publication; superseding judgment
A. When judgment has been rendered on service by publication, and defendant has not
appeared, a new trial may be granted upon application of defendant for good cause shown
by affidavit, made within one year after rendition of judgment.
B. Execution of the judgment shall not be stayed unless defendant gives bond,
approved by the clerk of the superior court, in double the amount of the judgment or
value of the property adjudged, payable to plaintiff in the judgment, conditioned that
the party will prosecute the application for new trial to effect, and will satisfy such
judgment as may be rendered by the court against him.
C. When property has been sold under the judgment and execution before the process
was stayed, defendant, if he defeats plaintiff's action, shall not recover the property
so sold, but shall have judgment against plaintiff in the judgment for the proceeds of
the sale.
12-1561 Judgment creditor having prior lien
If a party recovering judgment has a lien on any property by mortgage or otherwise,
or by levy of any writ of attachment or garnishment, no further levy upon such property
is necessary, and it may be sold without further levy.
12-1562 Duties of officer in execution; disposition of proceeds; rights of judgment debtor
A. An officer shall execute a general execution against the property of a judgment
debtor by levying on a sufficient amount of property, if there is a sufficient amount of
such property, and collecting or selling the things in action and selling the other
property and paying to the judgment creditor or his attorney so much of the proceeds as
will satisfy the judgment. Any excess in the proceeds over the judgment and costs shall
be returned to the judgment debtor unless otherwise directed by an order of the court.
B. A judgment debtor may point out to the levying officer the property he desires
to be levied on, and if the officer deems it sufficient to satisfy the execution, he
shall make levy on no other property.
C. An officer shall execute the special execution by selling the property directed
to be sold, or delivering the property directed to be delivered, as directed in the
judgment, and by enforcing the collection of damages and costs as in a general execution.
12-1563 Impeding recovery by action or judgment of personal property; classification
A person against whom an action is pending or against whom a judgment has been
rendered for the recovery of personal property who knowingly conceals, sells or disposes
of such property with intent to hinder or delay execution of the judgment, or with like
intent removes the property from the county in which it is located at the time of the
commencement of the action or the rendition of judgment, is guilty of a class 6 felony.
12-1564 Indemnification of officer for levy; recovery of costs
If there is a reasonable doubt about the equity interest of a judgment debtor in any
property or the liability for the seizure of the property on execution, the officer may
require sufficient security from the judgment creditor to indemnify the officer. If
security is not provided, the officer is not liable for failing to levy on the property.
If the judgment creditor deposits sufficient security to indemnify the officer taking the
property, he shall recover from the judgment debtor, together with the costs of the
execution, the reasonable costs of the indemnity deposited.
12-1565 Storage of levied property; costs
A. After the officer has completed his levy on the personal property of the
judgment debtor, the officer shall secure the property until it is sold. The officer may
store the property in a facility operated by the county for this purpose or in a private
facility selected by the judgment creditor or the officer or both.
B. The judgment creditor is responsible for paying all costs incurred in
transporting and storing the levied property. If the judgment creditor refuses or fails
to pay any costs associated with the levy of the property, the officer is not liable for
failing to execute the process. The costs incurred by the judgment creditor shall be
added to the amount due on the execution and are a part of the execution for the purposes
of this article.
12-1566 Execution upon judgments for debts secured by real property; fair market value; hearing; redemption rights; guarantees; applicability
A. This section applies to execution upon real property under a judgment obtained
pursuant to section 33-725 or obtained pursuant to section 33-814 or obtained against a
guarantor or any other person directly, indirectly or contingently liable on a debt for
which a judgment under section 33-725 or 33-814 may be obtained.
B. Any sale of real property under this section shall be a credit on the amount of
the judgment in the amount of either the fair market value of the real property
determined under subsection C of this section or the sales price of the real property at
a sheriff's sale, whichever is greater.
C. Any judgment debtor against whom a judgment has been entered pursuant to section
33-725 or 33-814 may, not later than thirty days after sale of the real property, file a
written application with the court for determination of the fair market value of the real
property which has been sold. Notice of filing the application and of the hearing shall
be given to all parties to the action. The fair market value shall be determined by the
court at a priority hearing which shall be held upon such evidence as the court may
allow. The court shall issue an order crediting the amount due on the judgment with the
greater of the sales price or the fair market value of the real property. Fair market
value shall mean the most probable price, as of the date of the execution sale, in cash,
or in terms equivalent to cash, or in other precisely revealed terms, after deduction of
prior liens and encumbrances with interest to the date of sale, for which the real
property or interest therein would sell after reasonable exposure in the market under
conditions requisite to a fair sale, with the buyer and seller each acting prudently,
knowledgeably and for self-interest, and assuming that neither is under duress. If an
application has been filed, there shall be no right to redemption as to the real property
sold as provided in sections 12-1281, 12-1282 and 12-1283, except creditors having a
junior lien to the lien foreclosed may redeem by five day successive periods as provided
in section 12-1282, subsection C, commencing sixty days after the sale of the real
property. The redemption price shall be calculated on the sales price of the real
property.
D. Except when the primary residence has been given as security pursuant to a
mortgage or deed of trust, no primary residence occupied by a judgment debtor covered by
subsection A of this section may be sold under execution until all other sales under
execution of real property of the judgment debtor in this state have been held and, if
timely requested, the hearing pursuant to subsection C of this section has been
held. The judgment debtor, within thirty days after entry of judgment, may file with the
court a certified list and legal description of the debtor's real property within thirty
days after entry of the judgment. This subsection shall not apply to any real property
which the judgment holder does not have actual knowledge of at the time of entry of
judgment or real property not listed on a certified list filed by the judgment
debtor. This subsection shall not require the judgment holder to sell real property
which the judgment holder has released from the judgment lien.
E. The obligation of a guarantor may be enforced without regard to this section in
accordance with the terms and conditions of the contract between the lender and the
guarantor in an action independent of any other action or judgment. A guarantor of the
debt or any other person directly, indirectly or contingently liable for the debt who is
not a judgment debtor in an action for foreclosure of a mortgage or deed of trust or an
action for deficiency judgment shall receive the same credit as the judgment debtor
receives pursuant to this section or section 33-814.
F. This section shall not abate, suspend or bar the right of the holder of a debt
secured by real property to abandon and release the lien on the real property which
secures the debt and proceed against any borrower or guarantor. Abandonment and release
shall be evidenced by a recorded release of the lien.
G. This section shall not abate, suspend or bar any action of the holder of the
judgment to realize upon or satisfy the judgment from personal property of a judgment
debtor or guarantor or any other person directly, indirectly or contingently liable for
the debt.
H. The sheriff's deed given pursuant to a sale held under execution or a trustee's
deed upon sale under power of sale shall constitute conclusive evidence of the meeting of
such requirements in favor of purchasers or encumbrancers for value and without actual
notice that any requirements of this section have not been met.
I. For the purposes of subsection D of this section:
1. "Primary residence" means a real property of two and one-half acres or less
which is limited to and utilized for either a single one-family or a single two-family
dwelling.
2. "Real property of the judgment debtor" means only real property or an interest
therein of the judgment debtor at the time of entry of judgment.
12-1570.01 Scope of article
A. The provisions of this article are applicable to garnishments of any of the
following:
1. Indebtedness owed to a judgment debtor by a garnishee for monies which are not
earnings as defined in section 12-1598, paragraph 4.
2. Monies held by a garnishee on behalf of a judgment debtor.
3. Personal property of a judgment debtor that is in the possession of a garnishee.
4. Shares and securities of a corporation or a proprietary interest in a
corporation belonging to a judgment debtor, if the garnishee is a corporation.
B. The provisions of this article are not applicable to indebtedness owed to a
judgment debtor by a garnishee for monies which are earnings as defined in section
12-1598, paragraph 4.
12-1570 Definitions
In this article, unless the context otherwise requires:
1. "Deliver" means any of the following:
(a) To hand deliver.
(b) To mail by regular first class mail to the address which the sender determines
through reasonable good faith efforts to be best calculated to reach the recipient in a
timely manner.
(c) To serve on a party pursuant to the rules of civil procedure applicable to a
summons.
2. "Exempt monies or property" means monies or property that, pursuant to a state
or federal law, is not subject to judicial process, including execution, attachment,
garnishment, replevin, sale or any final process issued from any court or any other
judicial remedy provided for the collection of debts.
3. "Good faith" means honesty in fact in the conduct or transaction concerned.
4. "Judgment creditor" means a person or entity that has a money judgment or an
order for support of a person that is due and unpaid or an order pursuant to chapter 14
of this title allowing him to garnish monies, personal property or shares of stock before
final judgment on the underlying action.
5. "Judgment debtor" means a person or entity against which a money judgment has
been awarded or against which an order for support of a person is due and unpaid or
against which an order pursuant to chapter 14 of this title has been entered.
6. "Monies" includes cash, credit and accounts, but does not include earnings as
defined in section 12-1598, paragraph 4.
7. "Nonexempt monies or property" means monies or property which are not restricted
by law from judicial process.
8. "Personal property" means all property and interests to which a security
interest may be perfected pursuant to title 47, chapter 9, except accounts.
9. "Receipt" means actually received.
12-1571 Issuance of writ
A. The clerk of the court or justice of the peace shall issue writs of garnishment,
returnable to their respective courts, upon the filing of the application required by
section 12-1572 and the bond required by section 12-1573.
B. City and town magistrates may issue writs of garnishment, which are returnable
to their respective courts, for nonpayment of any monies payable to the court including
but not limited to bonds, fines, fees, sanctions, penalties, surcharges, assessments and
restitution imposed in their courts on the filing of the application required by section
12-1572 and the bond required by section 12-1573. A political subdivision or court is
considered a judgment creditor for purposes of garnishment.
C. The writ may issue to the judgment creditor as garnishee for property of the
judgment debtor in possession of the judgment creditor or a third party.
12-1572 Application for writ of garnishment for monies or property
A writ of garnishment shall be issued pursuant to this article after the judgment
creditor or a person in his behalf makes an application in writing. The application
shall contain the following:
1. A statement that the applicant is a judgment creditor.
2. A statement that the applicant has good reason to believe one of the following:
(a) That the garnishee is indebted to the judgment debtor for monies which are not
earnings.
(b) That the garnishee is holding nonexempt monies on behalf of the judgment
debtor.
(c) That the garnishee has in his possession nonexempt personal property belonging
to the judgment debtor.
(d) That the garnishee is a corporation and the judgment debtor is the owner of
shares in such corporation, or has a proprietary interest in the corporation.
3. The amount of the outstanding balance due on the underlying judgment, together
with interest and accrued allowable costs, on the date the application is made, and the
rate at which interest accrues on that judgment, or if no judgment has been entered, the
amount of money damages requested in the judgment creditor's complaint.
4. The address of the garnishee.
12-1573 Bond amount and conditions
If a garnishment is requested and no judgment has been entered, a writ shall not be
issued until the judgment creditor executes and delivers to the court a bond payable to
the judgment debtor in the amount of the debt claimed therein, conditioned that the
judgment creditor will prosecute the action to effect and if return of the property is
ordered he will, without delay, return the property together with reasonable interest,
damages resulting from its taking and detention, costs and reasonable attorney fees in
the action to the judgment debtor.
12-1574 Issuance, service and return of writ; notice to debtor
A. When the judgment creditor has complied with the applicable provisions of
sections 12-1572 and 12-1573, the clerk, justice of the peace or city or town magistrate
shall issue a writ of garnishment of monies or property and a summons directed to the
sheriff, constable or any officer authorized by law to serve process in the county where
the garnishee is alleged to be, commanding him to immediately summon the garnishee to
appear before the court out of which the writ issued within the time specified in the
writ to answer the writ.
B. The writ shall state:
1. The amount of the outstanding balance due on the judgment, including accrued
interest and allowable costs, as of the date of the issuance of the writ, and the rate at
which interest accrues on that judgment.
2. The name and address of the garnishee or his authorized agent.
3. The name and address of the judgment creditor and his attorney, if applicable.
4. The last mailing address of the judgment debtor known to the judgment creditor.
C. The judgment creditor, in the manner required for a summons by rules of the
court in civil matters, shall serve on the garnishee two copies of the summons and writ
of garnishment, a copy of the underlying judgment, four copies of the answer form, two
copies of the notice to judgment debtor and request for hearing form and one copy of the
instructions to garnishee provided for in section 12-1596.
D. Within three days, not including weekends and holidays, the garnishee shall
deliver to the judgment debtor a copy of the summons and writ of garnishment, a copy of
the underlying judgment and the notice to judgment debtor and request for hearing form.
12-1577 Service of writ on branch of financial institution
A. Monies owing to a judgment debtor by a banking corporation or association,
savings bank, savings and loan association, credit union, trust company or title
insurance company, maintaining branch offices, or credits or other effects belonging to a
judgment debtor and in the possession of or under the control of such banking corporation
or association, savings bank, savings and loan association, credit union, trust company
or title insurance company, may be levied upon by serving a copy of the writ of
garnishment upon the manager or other officer of such banking corporation or association,
savings bank, savings and loan association, credit union, trust company or title
insurance company, at any office or branch thereof located in the county where such
service is made. No garnishment shall be effective as to any debt owing by such banking
corporation or association, savings bank, savings and loan association, credit union,
trust company or title insurance company, if the account evidencing such indebtedness is
carried at an office or branch other than the office or branch named in the writ and at
which service is made or as to any credits or other effects in its possession or under
its control at any other office or branch, unless the service of the writ is accompanied
by a cash tender of twenty-five dollars to the garnishee as costs for the search. Upon
the payment of the search fee the writ shall be effective as to any debt owing by such
banking corporation or association, savings bank, savings and loan association, credit
union, trust company or title insurance company, if the account evidencing such
indebtedness is carried at any office or branch thereof located in the county in which
service is made or as to any credits or other effects in its possession or under its
control at any office or branch thereof located in the county in which service is made,
but shall not be effective as to any debt owing by such banking corporation or
association, savings bank, savings and loan association, credit union, trust company or
title insurance company, if the account evidencing such indebtedness is carried at an
office or branch thereof located in a county other than the county in which service is
made or as to any credits or other effects in its possession or under its control at any
office or branch thereof located in a county other than the county in which service is
made.
B. The procedure provided in this section for the service of a writ of garnishment
upon any banking corporation or association, savings bank, savings and loan association,
credit union, trust company or title insurance company, maintaining branch offices, shall
be exclusive.
12-1578.01 Time for answer
The writ, whether issued in the superior court, the justice court or the police
court, shall require the garnishee to answer within ten days after being served with the
writ.
12-1578 Limitations on transfers by garnishee after service; replevin by judgment debtor
A. From and after the service of all of the documents required to be served
pursuant to section 12-1574 the garnishee shall not pay to the judgment debtor any monies
or deliver to him any personal property which is not exempt, and the garnishee, if a
corporation in which the judgment debtor is alleged to be the owner of shares or to have
an interest, shall not permit or recognize any sale or transfer of the judgment debtor's
shares or interest, if it is within the legal power of the garnishee to do so. Any such
payment, delivery, sale or transfer is void and of no effect as to so much of the monies,
personal property, shares or interest as is necessary to satisfy the judgment creditor's
demand, except that this provision shall not void or impair the rights of a bona fide
transferee, for value and without notice of the garnishment, of negotiable instruments,
documents of title, corporate stock or securities, or other documents or instruments
which embody legal rights transferable only by transfer of the documents or instruments
themselves, unless the document or instrument is held by the garnishee at the time of
service of the writ of garnishment.
B. A financial institution shall not withhold from the judgment debtor the amount
set forth as exempt pursuant to section 33-1126, subsection A, paragraph 9, unless
ordered by the court to do so after a hearing pursuant to section 12-1580.
C. The judgment debtor may at any time before judgment replevy any property
garnished by giving bond to be approved and filed in the action by the officer who issued
the writ of garnishment, in double the amount of the judgment creditor's debt, or, at the
judgment debtor's option, by giving bond for the value of the property garnished as
determined by the court, justice of the peace or city or town magistrate, and conditioned
upon the payment of any judgment that may be given against the garnishee in the action or
for payment of the value of the property garnished.
D. When the judgment debtor gives bond, he may make any defense which the garnishee
could make in such action.
E. If judgment is given in favor of the judgment creditor it shall be against the
judgment debtor and the sureties on the replevin bond for the amount of such judgment. 12-1579 Answer of garnishee
A. The answer of the garnishee shall be under oath, in writing and signed by him,
and shall make true answers to the writ. If a partnership is the judgment debtor, or if
there are more judgment debtors than one, the garnishee shall answer as to the
partnership and as to each judgment debtor named in the writ.
B. The answer of any garnishee, including a corporate garnishee, may be filed by
the garnishee without representation by an attorney.
C. At the time of filing the answer, the garnishee shall deliver a copy of the
answer to the judgment debtor and the judgment creditor or the judgment creditor's
attorney, if applicable.
D. The answer of the garnishee shall set forth the following:
1. Whether the garnishee was indebted to or otherwise in possession of monies of
the judgment debtor at the time the writ was served.
2. The total amount of indebtedness or monies in possession of the garnishee at the
time the writ was served.
3. The amount of indebtedness or monies withheld by the garnishee pursuant to the
writ.
4. The amount of indebtedness or monies not withheld by the garnishee, and the
reason for not withholding.
5. Whether the garnishee was in possession of personal property of the judgment
debtor at the time the writ was served.
6. A description of each item, or group of items, of personal property of the
judgment debtor in the garnishee's possession at the time the writ was served.
7. A list of the personal property withheld by the garnishee pursuant to the writ.
8. What other person or entity, within his knowledge, is indebted to the judgment
debtor or in possession of personal property of the judgment debtor.
9. Whether the garnishee is a corporation in which the judgment debtor owns shares
of stock or some other interest.
10. A statement of the number and types of shares owned by the judgment debtor and a
description of any other interest the judgment debtor owns in the garnishee corporation
as of the date the writ was served, as shown on the corporation's records.
11. The name, address and telephone number of the garnishee.
12. The date and manner of delivery to the judgment debtor of a copy of the writ and
the notice to judgment debtor.
13. The date and manner of delivery of a copy of the answer to the judgment creditor
and judgment debtor.
12-1580 Objection to garnishment or answer; hearing
A. A party who has an objection to the writ of garnishment, the answer of the
garnishee or the amount held by the garnishee or a party claiming an exemption from
garnishment may, not later than ten days after the receipt of the answer, file a written
objection and request for hearing. Copies of the objection shall be delivered to all
parties to the writ at the time of filing the request for hearing form.
B. The hearing on an objection to the writ, answer or amount on a claim of
exemption shall be commenced within five days of the request, not including weekends and
holidays, but may be continued for good cause on terms the court deems appropriate after
due consideration of the importance of the judgment debtor's rights and the need for a
speedy determination. Good cause includes a situation in which the objection raised at
the hearing is different from that set forth in the request for hearing. However, in no
event shall the hearing be held later than ten days from the date of the request unless
the request for a continuance is made by the judgment debtor.
C. A party requesting a hearing pursuant to this section is required to state the
grounds for his objection in writing, but the objecting party is not limited to those
written objections at the hearing conducted pursuant to this section.
D. The court shall notify the parties of the date and time of the hearing at least
two days, not including weekends and holidays, before the date of the hearing.
E. The prevailing party may be awarded costs and attorney fees in a reasonable
amount determined by the court. The award shall not be assessed against nor is it
chargeable to the judgment debtor, unless the judgment debtor is found to have objected
to the writ solely for the purpose of delay or to harass the judgment creditor.
12-1581 Discharge of garnishee
A. If it appears from the answer of the garnishee that he did not owe nonexempt
monies to the judgment debtor when the writ was served on him or that he did not have in
his possession any nonexempt personal property of the judgment debtor when the writ was
served, and if no written objection to the answer is timely filed, the court shall enter
judgment discharging the garnishee.
B. When the garnishee is a corporation in which the judgment debtor is alleged to
be the owner of shares of stock or an interest, if the answer shows that the judgment
debtor is not and was not when the writ was served the owner of any shares or interest
and if no written objection is timely filed, the court shall enter judgment discharging
the garnishee.
12-1582 Notice to garnishee of dismissal; hearing on costs and attorney's fee
Actions in garnishment in which an answer has been filed by a garnishee shall not be
dismissed except upon notice to the garnishee and an opportunity to be heard upon the
question of allowance of garnishee's costs and attorney's fee.
12-1583 Judgment by default against garnishee
If a garnishee fails to answer within the time specified in the writ, the judgment
creditor for whom the writ has been issued may petition the court for the issuance of an
order requiring the garnishee to appear before the court at a time and place specified in
the order to answer the writ or to file and serve a copy of the answer on the judgment
creditor for whom the writ has been issued, or on his attorney if the party is
represented by counsel, at least five days before the appearance date. If the garnishee
fails to appear or file and serve the answer after the service of the order requiring the
appearance in person or answer upon the garnishee, the court may, after judgment has been
rendered against the judgment debtor, render judgment by default against the garnishee
for the full amount of the judgment against the judgment debtor. The court may award a
reasonable attorney's fee to the judgment creditor for whom the writ was issued and
against the garnishee if the writ was not answered within the time specified in the writ
and a petition requiring the garnishee to appear or answer was filed as provided in this
section.
12-1584 Judgment against garnishee; objection; hearing
A. In a garnishment of monies or indebtedness, if the answer shows that the
garnishee was indebted to the judgment debtor at the time of service of the writ, and no
objection to the writ or answer is timely filed, on application by the judgment creditor
the court shall enter judgment on the writ against the garnishee for the amount of the
nonexempt monies of the judgment debtor owed or held by the garnishee at the time of
service of the writ.
B. If a timely objection is filed the court, after hearing evidence and argument,
shall determine whether the writ is valid against the judgment debtor, what amount is
presently due and owing on the underlying judgment and what amount of nonexempt monies,
if any, the garnishee was holding for or owed to the judgment debtor at the time the writ
was served, and the court shall enter judgment on the writ against the garnishee for that
amount or enter an order discharging the garnishee if no nonexempt monies are determined
owing.
C. The judgment creditor shall deliver a copy of the judgment on the writ against
the garnishee to the garnishee and the judgment debtor, and on receipt of a copy of the
judgment entered by the court the garnishee shall immediately transfer the adjudged
nonexempt monies to the judgment creditor.
D. A judgment pursuant to subsection A or B shall not be for more than the amount
of the outstanding balance of the underlying judgment, including accrued interest and
costs and attorney fees, if awarded.
E. The court, sitting without a jury, shall decide all issues of fact and law.
12-1585 Order regarding personal property subject to garnishment; objection; hearing
A. If the answer shows that the garnishee was holding personal property of the
judgment debtor at the time the writ was served, and no objection to the writ or answer
is timely filed, on application by the judgment creditor the court shall enter an order
on the writ against the garnishee to hold the nonexempt personal property of the judgment
debtor held by the garnishee when the writ was served pending service of a writ of
special execution pursuant to section 12-1554.
B. If a timely objection is filed the court, after hearing evidence and argument,
shall determine whether the writ is valid against the judgment debtor, what amount is
presently due and owing on the underlying judgment and what amount of nonexempt personal
property of the judgment debtor, if any, the garnishee was holding at the time the writ
was served, and the court shall enter an order on the writ against the garnishee to hold
the nonexempt personal property or enter an order discharging the garnishee if no
nonexempt personal property is determined to be held by the garnishee.
C. The judgment creditor shall deliver a copy of the order on the writ to the
garnishee and the judgment debtor.
D. An order entered pursuant to subsection A or B of this section shall not order
more property held than is reasonably necessary to satisfy the amount of the outstanding
balance of the underlying judgment, together with accrued interest and costs and attorney
fees, if awarded.
E. An order entered pursuant to subsection A or B of this section shall order the
garnishee to hold the adjudged nonexempt personal property from the judgment debtor and
to deliver the property to the sheriff or any constable presenting a writ of general
execution or special execution based on the underlying judgment. The court may order the
judgment debtor or the garnishee, or both, to execute and deliver to the sheriff or
constable such instruments or documents as are within the legal power of the judgment
debtor or garnishee to execute and to deliver. To effectuate the execution and delivery,
the court may order a garnishee corporation to issue and deliver unissued stock or
securities of the corporation owned by the judgment debtor.
F. If no writ of special execution is served on the garnishee by the sheriff or
constable within ninety days after the entry of the order pursuant to subsection A or B
of this section, the order on the writ expires, the garnishee has no further obligation
on the writ and the garnishee is no longer restricted from transferring the nonexempt
personal property to the judgment debtor.
12-1587 Discharge of garnishee if judgment or order not obtained within ninety days; exceptions
If no judgment or order is entered against the garnishee within ninety days after
the filing of the garnishee's answer, any monies, property, shares or other interest held
by the garnishee pursuant to the writ shall be released to the judgment debtor, and the
garnishee shall be discharged on the writ and fully and completely released from any
further liability to the judgment creditor with respect to the property released pursuant
to this section. This section is not applicable if either party has filed a written
objection pursuant to section 12-1580, nor to monies or property held for a trustee in
bankruptcy if the judgment debtor has filed bankruptcy, nor to monies or property held
under provisional remedies pursuant to chapter 14 of this title.
12-1588 Answer disclosing shares of stock; judgment and sale
A. If the garnishee is a corporation and it appears from the answer or otherwise
that the judgment debtor is or was when the writ of garnishment was served the owner of
any shares of stock in the corporation, or of any interest therein, the court shall give
judgment ordering the sale under execution in favor of the judgment creditor against the
judgment debtor of such shares or interest of the judgment debtor, or so much thereof as
is necessary to satisfy the execution.
B. The sale shall be conducted as other sales of personal property under execution,
and the officer making the sale shall execute a transfer of the shares or interest to the
purchaser, briefly reciting the judgment under which they were sold.
C. The sale shall pass to the purchaser all the right, title and interest which the
judgment debtor had in the shares of stock, or in the corporation, and the officers of
the corporation shall enter the sale and transfer on the books of the corporation as if
they had been made by the judgment debtor.
12-1591 Taxing costs
A. When the garnishee is discharged upon his answer, the cost of the proceeding,
including reasonable compensation to the garnishee, shall be taxed against the judgment
creditor.
B. When there is no written objection to the answer of the garnishee and the
garnishee is held on his answer, the costs as provided in subsection A shall be taxed
against the judgment debtor.
C. Where the answer is objected to in writing the costs shall abide the issue.
12-1592 Obedience of garnishee to judgment as bar
It shall be a sufficient answer to any claim of the judgment debtor against the
garnishee founded on any indebtedness of the garnishee, or on the possession by him of
any property, or if the garnishee is a corporation in which the judgment debtor was the
owner of shares of stock or other interest in the corporation, for the garnishee to show
that the indebtedness has been paid, that the property has been delivered or that the
shares of stock or other interest has been sold under judgment of the court in accordance
with the provisions of this article.
12-1593 Contempt proceedings
A. If the judgment creditor fails to comply with any duty imposed upon him by this
article, the court shall, upon petition of any party to the proceedings affected by such
failure and after notice, hold a hearing to determine whether such failure to comply, if
any, was occasioned by mistake, inadvertence or excusable neglect. If the court
determines that any failure to comply was not the result of mistake, inadvertence or
excusable neglect, the court shall find the judgment creditor in contempt and shall award
the petitioner all of the following:
1. An amount to compensate for actual losses, if any, caused by the failure to
comply.
2. Reasonable attorney fees, if the petitioner was represented by an attorney at
such hearing.
3. Court costs.
4. An additional amount of not less than one hundred nor more than one thousand
dollars.
B. If a bank, savings and loan association or credit union refuses to keep free
from a writ of garnishment a total of one hundred fifty dollars in one or more of the
accounts subject to the writ for each judgment debtor who has an interest in the account,
or if a garnishee fails after a written notice and a thirty day grace period to comply
with the terms of a judgment or order entered pursuant to section 12-1584 or 12-1585,
unless that judgment or order is stayed or has expired, the judgment debtor may petition
the court for relief. The court shall, after notice, hold a hearing to determine if such
refusal or failure, if any, was wilful or the result of gross negligence. If the court
determines that the refusal or failure was wilful or the result of gross negligence the
court shall find the bank, savings and loan association, credit union or other garnishee
in contempt and shall award the judgment debtor all of the following:
1. An amount to compensate for actual losses, if any, caused by the refusal or
failure.
2. Reasonable attorney fees, if the judgment debtor was represented by an attorney
at such hearing.
3. Court costs. The court may award the judgment debtor an additional amount of not
to exceed four hundred dollars.
C. If a garnishee fails, after a written notice and a thirty day grace period, to
comply with the terms of a judgment or order entered pursuant to section 12-1584 or
12-1585, unless that judgment or order is stayed or has expired, the judgment creditor
may petition the court for relief. The court shall, after notice, hold a hearing to
determine if such failure, if any, was wilful or the result of gross negligence. If the
court determines that the failure was wilful or the result of gross negligence, the court
shall find the garnishee in contempt and shall award the judgment creditor all of the
following:
1. An amount to compensate for actual losses, if any, caused by the failure.
2. Reasonable attorney fees, if the judgment creditor was represented by an
attorney at such hearing.
3. Court costs. The court may award the judgment creditor an additional amount of
not to exceed four hundred dollars.
D. If after conducting a hearing required by subsection A, B or C of this section,
the court determines that a petition filed pursuant to subsection A, B or C of this
section is without merit, the court may award reasonable attorney fees to any party
adversely affected by the petition, if the party adversely affected was represented by an
attorney at such hearing.
E. A party may request the court to order the relief set forth in subsection A, B,
C or D of this section in the case which is the basis of the garnishment.
F. This section does not restrict a party from pursuing any common law remedies.
12-1595 Garnishment of bank account in names of two or more persons; bond of judgment creditor
A. A bank deposit made in the names of two or more persons shall be subject to
garnishment.
B. The answering garnishee shall, upon service of the writ, impound all funds then
present in the bank account, and shall promptly notify each person who appears from the
business records of the garnishee to have an interest in such bank account in addition to
the judgment debtor that such account has been impounded, the name of the judgment
creditor and judgment debtor and the court in which the action is pending as stated on
the writ. The notice may be made personally or by registered mail, postage prepaid,
addressed to each such person at his last known address as reflected by the business
records of the garnishee.
C. The answer of the garnishee, in such case, shall state under oath the names of
all persons who appear from the business records of the garnishee to have an interest in
the bank account in addition to the judgment debtor. Upon the filing of the answer the
court shall join all persons who appear to have an interest in the bank account in
addition to the judgment debtor, as reflected by the answer of garnishee, and shall
proceed to a determination of the interest of the judgment debtor therein.
D. Upon entry of an order based upon such proceeding all impounded funds, except
those of the judgment debtor, shall be released by the garnishee. The matter shall
otherwise proceed as in any other garnishment action.
E. All persons whose funds are impounded under the provisions of this section
shall, together with the judgment debtor, be considered to be joint and several obligees
of the bond provided for by section 12-1573, but the liability of the sureties on such
bond shall be limited to the amount of the penal sum named in the bond.
12-1596 Forms
A. The court, justice of the peace or city or town magistrate shall provide to the
parties, at no charge, copies of the following documents required to be delivered
pursuant to section 12-1574:
1. The notice to judgment debtor and request for hearing form.
2. The answer form.
3. The instructions to garnishee.
B. The notice to judgment debtor and request for hearing form shall be in a form
prescribed by the supreme court and shall contain at least the following:
1. An explanation of the judgment debtor's rights and responsibilities relating to
the garnishment procedure, including information concerning:
(a) Exemption rights.
(b) Grounds for objecting to the writ.
(c) The objection and hearing procedures.
2. A form on which the judgment debtor may request a hearing.
C. The notice to judgment debtor and request for hearing form prescribed by the
supreme court shall be in substantially the following form:
Notice to judgment debtor or defendant
(Non-earnings)
You are hereby notified that this court has issued an order in the above case in
favor of the judgment creditor in this proceeding, directing that some of your money,
property or corporate shares or interest be used to satisfy some of your debt to the
judgment creditor. The order was issued to enforce the judgment creditor's judgment,
support order or provisional remedy order against you that was obtained in (the name of
court) in (case number) on (date). A copy of the judgment or order is attached.
The law provides that monies from certain benefits or in certain amounts are free
from the claims of creditors even if deposited in a bank, savings and loan association or
credit union. Some examples of exempt monies appear later in this notice. The law also
provides that certain personal property is exempt from the claims of creditors. Some
examples of exempt property appear later in this notice.
Within ten days after being served with the writ of garnishment the garnishee who is
holding your money or personal property is required to mail or deliver to you his answer
stating what money or personal property he is withholding from you for the judgment
creditor pursuant to the writ.
You may object to the garnishment or file a claim of exemption by requesting a
hearing with this court, if you believe any of the following is true:
1. The judgment creditor does not have a valid provisional remedy order or support
order or judgment against you or that the debt or judgment has been paid in full.
2. Some or all of the monies which are being withheld by the garnishee may be
exempt monies. Examples of exempt monies are:
(a) One hundred fifty dollars in a bank, savings and loan association or credit
union account. (Three hundred dollars for married account holders.)
(b) Temporary assistance for needy families.
(c) Supplemental security income (SSI).
(d) Social security benefits (SSA).
(e) Veterans' administration benefits (VA).
(f) Certain pension benefits and retirement funds.
(g) Workers' compensation benefits.
(h) Some insurance proceeds.
Other state and federal exemptions may apply. Certain exemptions may not apply to
support orders or to the collection of taxes. An attorney can assist you in determining
what monies are exempt.
3. Some or all of the personal property being withheld by the garnishee may be
exempt property. Examples of exempt personal property are:
(a) Household goods, furniture and appliances.
(b) Up to one thousand five hundred dollars equity value for each owner of a car or
truck. (Three thousand dollars equity value if the owner is physically handicapped.)
(c) Wearing apparel, musical instruments, televisions or stereos and other personal
items.
(d) Tools and equipment used in a commercial activity, trade, business or
profession.
These exemptions are limited in statute by description and dollar value. An
attorney can assist you in determining what personal property is exempt.
4. More than fifteen days have passed since the garnishee was served with the writ
and you have not yet received the garnishee's answer.
5. You otherwise disagree with the answer of the garnishee. To request a hearing,
deliver the request for hearing form appearing below, or a substantially similar form, to
the court clerk's office. At the same time, you must mail or deliver a copy (photocopy
or handwritten copy) of the request for hearing to the judgment creditor and the
garnishee at the address stated in the writ. If you do not deliver the request for
hearing form to this court within ten days after the date you receive the answer of
garnishee, your request for hearing will be denied, unless a good reason for the delay,
acceptable to the court, is shown.
If you request a hearing it will be held no later than five days, not including
weekends and holidays, after your request is received by the court. If appropriate, you
may request a hearing before the garnishee files his answer.
The court will notify you and the other parties of the time and date of the
hearing. You may attend the hearing with or without an attorney.
Request for hearing
I request a hearing to object to the garnishment or claim exempt monies because:
_________ 1. The judgment is not valid.
_________ 2. The judgment has been paid.
_________ 3. Exempt monies are being garnished: _________ (a) One hundred fifty dollars in a bank, savings and loan association or credit union. _________ (b) Temporary assistance for needy families, social security benefits, supplemental security income or veterans' administration benefits.
_________ (c) Other pension or retirement benefits.
_________ (d) Workers' compensation or other insurance benefits.
_________ (e) Other ___________________________________________.
_________ 4. Exempt personal property is being garnished:
_________ (a) Household goods, furnishings or appliances. _________ (b) Motor vehicle equity under one thousand five hundred dollars or three thousand dollars, if applicable.
_________ (c) Personal items.
_________ (d) Tools and equipment of a trade.
_________ (e) Other ____________________________________________.
_________ 5. No answer has been received within fifteen days.
_________ 6. The answer of the garnishee is incorrect.
_________ 7. Other _________________________________________________.
___________________________________________
Date
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
Warning: To request a hearing, this document, or one similar, must be received by
this court within ten days after your receipt of the answer of garnishee, unless good
reason for the delay is shown.
D. At the top of the first page of the notice to judgment debtor and request for
hearing form described in subsections B and C of this section, a Spanish translation
shall be printed of the following language:
The court has issued an order requiring the garnishee to deliver money or property
it owes you to the judgment creditor because of the judgment he has against you. In some
circumstances your money or property is protected by law from being taken. This is
explained in the notice. A Spanish translation of that notice can be obtained from the
court.
E. The answer form shall be in a form prescribed by the supreme court and shall
require at a minimum that the answer of the garnishee set forth those items required to
be set forth pursuant to section 12-1579, subsection D.
F. The instructions to garnishee shall be in a form prescribed by the supreme court
and shall contain at a minimum:
1. An explanation of the garnishee's responsibilities relating to the garnishment
procedure, including instructions for the proper completion of the required forms.
2. A notice to the garnishee concerning the provisions of sections 12-1583 and
12-1593.
G. A party to a garnishment proceeding may use documents other than those provided
pursuant to subsection A of this section, if such documents are substantially similar to
those prescribed by the supreme court pursuant to this section.
12-1597 Mailing; receipt; presumptions
A. For the purposes of this article, it is presumed that a document has been
received five days after it is mailed as provided in section 12-1570, paragraph 1,
subdivision (b).
B. For the purposes of the article, if a party to the garnishment action mails a
document to the address contained in the writ or to the most recent address contained in
the party's records, it is presumed that the party has complied with the good faith
requirement of section 12-1570, paragraph 1, subdivision (b).
C. For the purposes of this article, delivery as defined by section 12-1570,
paragraph 1, subdivision (b) shall not be deemed service by mail.
12-1598.01 Scope of article
A. The provisions of this article are applicable to indebtedness owed to a judgment
debtor by a garnishee for monies which are earnings as defined in section 12-1598,
paragraph 4. Earnings become monies, as defined in section 12-1570, paragraph 6, upon
their disbursement by the employer to or for the account of the employee, except
disbursements into a pension or retirement fund.
B. The provisions of this article are not applicable to garnishments of:
1. Indebtedness owed to a judgment debtor by a garnishee for amounts which are not
earnings as defined in section 12-1598, paragraph 4.
2. Monies held by a garnishee on behalf of a judgment debtor.
3. Personal property of a judgment debtor that is in the possession of a garnishee.
4. Shares or securities of a corporation or a proprietary interest in a corporation
belonging to a judgment debtor, if the garnishee is a corporation.
12-1598.02 Grounds for issuance of writ of garnishment of earnings
The clerk of the court, justice of the peace or city or town magistrate shall issue
writs of garnishments of earnings, returnable to that court, only in cases in which a
party to that action is a judgment creditor. The city or town magistrate shall issue
writs of garnishment only for nonpayment of fines, fees, sanctions and restitution
imposed in that court.
12-1598.03 Application for writ of garnishment for earnings
A writ of garnishment shall be issued pursuant to this article after the judgment
creditor or a person in his behalf makes an application in writing. The application
shall state the following:
1. That he is a party in an action to whom a money judgment has been awarded.
2. That he has made demand on the judgment debtor for payment of the amount
adjudged due, but the judgment debtor has not paid that amount and he has not agreed and
continued to pay the nonexempt portion of his wages until the judgment is satisfied.
3. The amount of the outstanding balance due on the judgment is that amount stated
on the application.
4. That the garnishee is believed to be an employer of the judgment debtor or
otherwise owes or will owe to the judgment debtor disposable earnings.
5. The name and address of the garnishee or his authorized agent.
6. That he has not received notice of the judgment debtor's intent to enter into an
agreement for debt scheduling with a qualified debt counseling organization or, if such
notice has been received, that he timely objected, in writing, to the judgment debtor's
participation in such an agreement or that he has been notified that the agreement is no
longer effective.
12-1598.04 Issuance of writ of garnishment for earnings; service and return of writ; lien on nonexempt earnings
A. If a party in an action has been awarded a money judgment and has submitted the
application provided for in section 12-1598.03, the clerk, justice of the peace or city
or town magistrate shall immediately issue a writ and summons of garnishment directed to
the sheriff, the constable or any officer authorized by law to serve process in the
county where the garnishee is alleged to be which commands him to immediately summon the
garnishee to appear before the court out of which the writ issued within the time
specified in the writ to answer the writ.
B. The writ shall state:
1. The amount of the outstanding balance due on the judgment, including accrued
interest and allowable costs, as of the date of the issuance of the writ, and the rate at
which interest accrues on that judgment.
2. The name and address of the garnishee or his authorized agent.
3. The name and address of the judgment creditor and his attorney, if applicable.
4. The last mailing address of the judgment debtor known to the judgment creditor.
C. The judgment creditor, in the manner required for a summons by rules of the
court in civil matters, shall serve on the garnishee two copies of the writ of
garnishment and summons, a copy of the underlying judgment, four copies of the answer
form, two copies of the notice to judgment debtor and request for hearing form, two
copies of the instructions to garnishee and four copies of the nonexempt earnings
statement provided for in section 12-1598.16.
D. The judgment creditor shall deliver to the judgment debtor a copy of the writ
and the initial notice to judgment debtor and request for hearing form within three days,
not including weekends and holidays, after service of the summons and writ of garnishment
on the garnishee. The judgment creditor shall certify in writing to the court the date
and manner of delivery.
E. The caption of pleadings in connection with a writ of garnishment shall identify
which party is the judgment creditor, using that term, and which party is the judgment
debtor, using that term, in addition to other party designations already in the caption.
12-1598.05 Initial lien
A. The writ is a lien on the nonexempt earnings of the judgment debtor from the
date of service of the writ until any one of the following occurs:
1. An order of continuing lien is entered.
2. If no order is entered for a period of forty-five days after the date of the
filing of the answer.
3. The writ is quashed, released or becomes ineffective as a result of the
circumstances set forth in section 12-1598.10, subsection D.
B. The garnishee shall not remit any withheld earnings to the judgment creditor
until an order of the court has been entered pursuant to section 12-1598.10.
C. The garnishee is not liable to the judgment creditor for failing to withhold
earnings from a judgment debtor if those earnings were paid to the judgment debtor on a
payday falling within three days, not including weekends and holidays, after the date of
the service of the writ.
12-1598.06 Time for answer
The writ, whether issued in the superior court, the justice court or the police
court, shall require the garnishee to answer within ten days from service of the writ.
12-1598.07 Objection to garnishment, answer or nonexempt earnings statement; hearing
A. A party who has an objection to the writ of garnishment, the answer of garnishee
or a nonexempt earnings statement may file a written objection and request for hearing on
a form similar to those set forth in section 12-1598.16. The hearing must be requested
no later than ten days after receipt of the answer or nonexempt earnings statement
objected to unless good cause for filing the request later is shown. At the time of
filing the request for hearing form, the party filing the objection shall deliver a copy
of the form to all parties to the writ.
B. The hearing on an objection to the writ, answer or amount withheld or on a claim
of exemption shall be commenced within ten days after receipt of the request by the court
but may be continued for good cause on terms the court deems appropriate after due
consideration of the importance of the judgment debtor's rights and the need for a speedy
determination. Good cause includes a situation in which the objection raised at the
hearing is different from that set forth in the request for hearing form. However, in no
event shall the hearing be held later than fifteen days after the date the request was
received by the court unless the request for a continuance is made by the judgment
debtor.
C. A party requesting a hearing pursuant to this section is required to state the
grounds for his objection in writing, but the objecting party is not limited to those
written objections at the hearing conducted pursuant to this section.
D. The court shall notify the parties of the date and time of the hearing at least
two days, not including weekends and holidays, before the date of the hearing.
E. The prevailing party may be awarded costs and attorney fees in a reasonable
amount determined by the court. An award of attorney fees shall not be assessed against
nor is it chargeable to the judgment debtor unless the judgment debtor is found to have
objected solely for the purpose of delay or to harass the judgment creditor.
12-1598.08 Answer of garnishee to writ of garnishment of earnings; filing; delivery; notice
A. The answer of the garnishee shall be under oath, in writing and signed by him
and shall make true answers to the writ. If there are more judgment debtors than one,
the garnishee shall answer as to each judgment debtor named in the writ. The answer of
any garnishee, including a corporate garnishee, may be filed by the garnishee without
representation of an attorney.
B. The answer of the garnishee shall set forth the following:
1. Whether the judgment debtor was employed by the garnishee on the date the writ
was served.
2. Whether the garnishee anticipates owing earnings within sixty days after the
date of service of the writ.
3. If the garnishee is unable to determine the identity of the judgment debtor
after making a good faith effort to do so, a statement of the effort made and reasons for
such inability.
4. The dates of the next two paydays occurring after the date of service of the
writ.
5. The pay period of the judgment debtor, whether weekly, biweekly, semimonthly,
monthly or another specified period.
6. The amount of the outstanding judgment now due and owing as stated in the writ.
7. Whether the judgment debtor is subject to an existing wage assignment,
garnishment or levy, and if so, the name, address and telephone number of that judgment
creditor.
8. The name, address and telephone number of the garnishee.
9. The date and manner of delivery of a copy of the answer to the judgment debtor
and judgment creditor.
C. The garnishee shall deliver a copy of the answer to the judgment creditor or the
judgment creditor's attorney, if applicable. At the same time the garnishee shall
deliver a copy of the answer and a copy of the notice to judgment debtor and request for
hearing form to the judgment debtor. The garnishee shall state the time and manner of
delivery in the answer.
12-1598.09 Discharge of garnishee
If it appears from the answer of the garnishee that he did not employ the judgment
debtor at the time the writ was served, would not owe earnings to the judgment debtor
within sixty days after service of the writ on the garnishee or the garnishee was unable
to determine the identity of the judgment debtor after making a good faith effort to do
so, and if no written objection is timely filed, the court shall enter judgment
discharging the garnishee.
12-1598.10 Continuing lien on earnings; order
A. If it appears from the answer of the garnishee that the judgment debtor was an
employee of the garnishee, or that the garnishee otherwise owed earnings to the judgment
debtor when the writ was served, or earnings would be owed within sixty days thereafter
and there is no timely written objection to the writ or the answer of the garnishee
filed, on application by the judgment creditor the court shall order that the nonexempt
earnings, if any, withheld by the garnishee after service of the writ be transferred to
the judgment creditor who is entitled to such monies subject to the judgment debtor's
right to objection and hearing pursuant to this article. The court shall further order
that the garnishment is a continuing lien against the nonexempt earnings of the judgment
debtor.
B. If a timely objection is filed the court shall conduct a hearing pursuant to
section 12-1598.07 and shall make the following determinations:
1. Whether the writ is valid against the judgment debtor.
2. The amount outstanding on the judgment at the time the writ was served, plus
accruing costs.
3. Whether the judgment debtor was employed by the garnishee at the time the writ
was served.
4. Whether earnings were owed or would be owed by the garnishee to the judgment
debtor within sixty days after the service of the writ.
5. Whether the debt was, at the time of service of the writ, subject to an
effective agreement for debt scheduling between the judgment debtor and a qualified debt
counseling organization.
C. If the court makes an affirmative determination under subsection B, paragraph 1
of this section and subsection B, paragraph 3 or 4 of this section and determines that
the debt was not, at the time of service of the writ, subject to an effective agreement
between the judgment debtor and a qualified debt counseling organization, the court shall
order that the nonexempt earnings, if any, withheld by the garnishee after service of the
writ be transferred to the judgment creditor and further order that the garnishment is a
continuing lien against the nonexempt earnings of the judgment debtor. Otherwise the
court shall order the garnishee discharged from the writ.
D. A continuing lien ordered pursuant to this section is invalid and of no force
and effect on the occurrence of any of the following conditions:
1. The underlying judgment is satisfied in full, is vacated or expires.
2. The judgment debtor leaves the garnishee's employ for more than sixty days.
3. The judgment creditor releases the garnishment.
4. The proceedings are stayed by a court of competent jurisdiction, including the
United States bankruptcy court.
5. The judgment debtor has not earned any nonexempt earnings for at least sixty
days.
6. The court orders that the garnishment be quashed.
E. If no objections are filed to the answer of the garnishee and an order of
continuing lien is not entered within forty-five days after the filing of the answer of
the garnishee, any earnings held by the garnishee shall be released to the judgment
debtor and the garnishee shall be discharged from any liability on the garnishment.
F. If at the hearing the court determines that the judgment debtor is subject to
the twenty-five per cent maximum disposable earnings provision under section 33-1131,
subsection B and based on clear and convincing evidence that the judgment debtor or his
family would suffer extreme economic hardship as a result of the garnishment, the court
may reduce the amount of nonexempt earnings withheld under a continuing lien ordered
pursuant to this section from the twenty-five per cent to not less than fifteen per cent.
G. A court order entered pursuant to this section if recorded does not constitute a
lien against real property pursuant to section 33-961.
H. The court, sitting without a jury, shall decide all issues of fact and law.
12-1598.11 Continuing lien procedure; nonexempt earnings statement
A. An order of continuing lien on nonexempt earnings entered pursuant to this
article requires the garnishee to continue to withhold the nonexempt earnings of the
judgment debtor for as long as the continuing lien remains in effect.
B. Beginning with the pay period during which the writ was served, and while the
continuing lien remains in effect, for each pay period the garnishee shall do the
following:
1. Complete the nonexempt earnings statement.
2. Deliver the nonexempt earnings statement to the judgment debtor with his exempt
earnings for that pay period.
3. At the same time deliver a copy of the nonexempt earnings statement to the
judgment creditor or his attorney.
C. After the entry of an order of continuing lien pursuant to section 12-1598.10,
and for each pay period thereafter, the garnishee shall deliver the nonexempt earnings to
the judgment creditor or his attorney, together with the nonexempt earnings statement.
D. Neither the original nor a copy of the nonexempt earnings statement shall be
filed with the court unless an objection to the amount withheld, if any, is timely filed
by a party.
E. The judgment creditor shall deliver to the garnishee sufficient copies of the
appropriate nonexempt earnings statement and request for hearing forms so that the
garnishee is able to comply with the requirements of this section, unless the judgment
creditor is advised that the garnishee will supply his own forms.
12-1598.12 Reporting by judgment creditor
A. Except as provided in subsection B, as long as the order of continuing lien is
in effect the judgment creditor shall issue a report in writing to the garnishee and the
judgment debtor within twenty-one days after the end of each calendar quarter.
B. The judgment creditor shall report in writing to the garnishee and judgment
debtor within twenty-one days after payment is received from the garnishee reducing the
outstanding balance on the judgment to five hundred dollars or less and within the first
ten days of each calendar month thereafter until the judgment is satisfied.
C. The reports required in subsections A and B shall contain the following:
1. The beginning and ending date of the reporting period for that report. The
beginning date of the first reporting period is the date the writ was served.
2. The date and amount of each payment received during the reporting period.
3. The total amount credited to the judgment balance for that reporting period.
4. The interest accrued during that reporting period.
5. The total outstanding balance due on the judgment as of the ending date of the
reporting period.
D. It is the obligation of the judgment creditor to take reasonable action to
assure that the garnishee does not withhold more nonexempt earnings of the judgment
debtor than are necessary to satisfy the underlying judgment. Reasonable action includes
at least written notice directed to the garnishee or his authorized representative if the
balance due on the judgment is less than double the amount of nonexempt earnings received
in the preceding two pay periods. The judgment creditor shall instruct the garnishee to
cease withholding earnings after the full amount of the judgment has been paid to the
judgment creditor or when the judgment creditor has been notified that sufficient monies
have been withheld to satisfy the underlying judgment.
E. Immediately after the underlying judgment is satisfied or expires, the judgment
creditor shall file with the clerk of the court a satisfaction or release of the writ and
shall deliver a copy of that satisfaction or release to the garnishee, the judgment
debtor and any creditor who has delivered a written request for such notice to the
judgment creditor or his attorney.
12-1598.13 Contempt proceedings; default of garnishee
A. If the judgment creditor fails to comply with any duty imposed upon him by this
article, the court shall, upon petition of any party to the proceedings affected by such
failure and after notice, hold a hearing to determine whether such failure to comply, if
any, was occasioned by mistake, inadvertence or excusable neglect. If the court
determines that any failure to comply was not the result of mistake, inadvertence or
excusable neglect, the court shall find the judgment creditor in contempt and shall award
the petitioner all of the following:
1. An amount to compensate for actual losses, if any, caused by the failure to
comply.
2. Reasonable attorney fees, if the petitioner was represented by an attorney at
such hearing.
3. Court costs.
4. An additional amount of not less than one hundred nor more than one thousand
dollars.
B. If a garnishee fails after written notice to deliver nonexempt earnings to the
judgment creditor within thirty days after the ending date of the pay period, or fails
after written notice to deliver the nonexempt earnings statement to the judgment debtor
with the exempt earnings, the judgment debtor may petition the court for relief. The
court shall, after notice, hold a hearing to determine if such failure, if any, was
wilful or the result of gross negligence. If the court determines that the failure was
wilful or the result of gross negligence, the court shall find the garnishee in contempt
and shall award the judgment debtor all of the following:
1. An amount to compensate for actual losses, if any, caused by the failure to
comply.
2. Reasonable attorney fees, if the judgment debtor was represented by an attorney
at such hearing.
3. Court costs. The court may award the judgment debtor an additional amount not to
exceed four hundred dollars.
C. While an order of continuing lien pursuant to section 12-1598.10 is in effect,
if the garnishee fails to deliver to the judgment creditor the nonexempt earnings of the
judgment debtor, if any, and the copy of the nonexempt earnings statement within fourteen
days of the end of the pertinent pay period, and the judgment creditor thereafter
delivers a written demand for the nonexempt earnings and statement, and the garnishee
does not comply within fourteen days of the receipt of the written demand, the judgment
creditor may petition the court for relief. The court shall, after notice, hold a
hearing to determine whether the failure to comply with the written demand within
fourteen days of receipt, if any, was wilful or the result of gross negligence. If the
court determines that the failure was wilful or the result of gross negligence, the court
shall find the garnishee in contempt and shall award the judgment creditor all of the
following:
1. An amount to compensate for actual losses, if any, caused by the failure to
comply.
2. Reasonable attorney fees, if the judgment creditor was represented by an
attorney at such hearing.
3. Court costs. The court may award the judgment creditor an additional amount not
to exceed four hundred dollars.
D. If after conducting a hearing required by subsection A, B or C of this section,
the court determines that a petition filed pursuant to subsection A, B or C of this
section is without merit, the court may award reasonable attorney fees to any party
adversely affected by the petition, if the party adversely affected was represented by an
attorney at such hearing.
E. A party may request the court to order the relief set forth in subsection A, B,
C or D of this section in the case which is the basis of the garnishment.
F. This section does not restrict a party from pursuing any common law remedies.
G. The garnishee may conclusively rely on and is not liable to the judgment debtor
for acting in reliance on the validity and authenticity of a garnishment which is regular
on its face.
H. If a garnishee fails to answer within the time specified in the writ, the party
for whom the writ has been issued may petition the court for the issuance of an order
requiring the garnishee to appear before the court at a time and place specified in the
order to answer the writ or to file and serve a copy of the answer on the party for whom
the writ has been issued, or on his attorney if the party is represented by counsel, at
least five days before the appearance date. If the garnishee fails to appear or file and
serve the answer after the service of the order requiring the appearance in person or
answer on the garnishee, the court may render judgment by default against the garnishee
for the full amount of the judgment against the judgment debtor. The court may award a
reasonable attorney's fee to the party for whom the writ was issued and against the
garnishee if the writ was not answered within the time specified in the writ and a
petition requiring the garnishee to appear or answer was filed as provided in this
section.
12-1598.14 Priority
A. Except as provided in subsections B and C, conflicting wage garnishments and
levies rank according to priority in time of service.
B. Garnishments, levies and wage assignments which are not for the support of a
person are inferior to wage assignments for the support of a person. Garnishments which
are not for the support of a person and levies are inferior to garnishments for the
support of a person.
C. If a judgment debtor's earnings become subject to more than one writ of
garnishment pursuant to this article, and because of the application of the priorities
set forth in subsections A and B a judgment creditor recovers no nonexempt earnings for
two consecutive paydays, the lien on earnings of such judgment creditor is invalid and of
no force and effect, and the garnishee shall notify the judgment creditor accordingly.
12-1598.15 Taxing costs
A. If the garnishee is discharged on his answer, the cost of the proceeding,
including reasonable compensation to the garnishee, shall be taxed against the judgment
creditor.
B. If there is no written objection to the answer of the garnishee and the
garnishee is held on his answer, the costs as provided in subsection A shall be taxed
against the judgment debtor.
C. If the answer or nonexempt earnings statement is objected to in writing the
costs shall abide the issue.
D. If no objection is filed to the answer of the garnishee, the costs provided in
subsections A and B shall not exceed fifty dollars excluding costs of service and the
cost of issuance of the writ.
E. While a continuing lien is in effect the garnishee may deduct from the nonexempt
earnings of the judgment debtor the amount of five dollars each pay period as a fee for
preparing and delivering the nonexempt earnings statement. If there were not sufficient
nonexempt earnings to collect this fee, and an amount arising from this fee remains owing
when the writ becomes invalid or is released, the amount is chargeable against the
judgment creditor and not the judgment debtor.
12-1598.16 Forms
A. The court, justice of the peace or city or town magistrate shall provide to the
parties, at no charge, copies of the following documents:
1. The initial notice to judgment debtor and request for hearing form required to
be delivered pursuant to section 12-1598.04.
2. The notice to judgment debtor and request for hearing form required to be
delivered pursuant to section 12-1598.08.
3. The answer form required to be delivered pursuant to sections 12-1598.04 and
12-1598.08.
4. The instructions to garnishee required to be delivered pursuant to section
12-1598.04.
5. The nonexempt earnings statement required to be delivered pursuant to section
12-1598.11.
B. The initial notice to judgment debtor and request for hearing form shall be in a
form prescribed by the supreme court and shall contain at a minimum the following:
1. An explanation of the judgment debtor's rights and responsibilities relating to
the garnishment procedure, including information concerning:
(a) Exemption rights.
(b) Grounds for objecting to the writ.
(c) The objection and hearing procedures.
2. A form on which the judgment debtor may request a hearing.
C. The initial notice to judgment debtor and request for hearing form prescribed by
the supreme court shall be in substantially the following form:
Initial notice to judgment debtor
To collect his judgment against you the judgment creditor has asked this court to
issue a writ of garnishment (see copy of writ attached). Information about the judgment
and the name and address of the judgment creditor and garnishee are stated in the writ
and the copy of the judgment, which is attached.
The writ of garnishment is a court order requiring the garnishee to withhold a
certain amount from your earnings and to continue to withhold a portion of your earnings
until the judgment is satisfied or the writ is quashed by the court or released by the
judgment creditor.
The law provides that a certain amount of each paycheck or other earnings is exempt
from collection by a writ of garnishment. In some cases of very low income no amount can
be garnished except for an order for support of a person. Different exemption rights may
apply to the collection of taxes.
Within ten days after the date the garnishee was served with the writ of
garnishment, he is required to deliver to you the following documents:
1. Answer of garnishee.
2. Notice to judgment debtor, which explains your rights and the procedures in the
garnishment process.
3. Request for hearing form, which you can use to request a hearing if you believe
that the amount withheld from your earnings is greater than the law allows or that the
garnishment is invalid.
On each normal payday you should receive some earnings (paycheck) for the amount the
garnishee calculates is protected by law. That calculation is made on a nonexempt
earnings statement, a copy of which should accompany your paycheck. If the judgment
creditor's debt is subject to an effective agreement for debt scheduling between you and
a qualified debt counseling organization and if you do not receive a paycheck, or if a
copy of the nonexempt earnings statement does not accompany your paycheck, you may
request a hearing.
To request a hearing for the reasons described above, fill out the attached request
for hearing form and deliver it to this court's clerk's office. At the same time you
must deliver a copy (photocopy or handwritten) of the request for hearing to the
garnishee and to the judgment creditor, or his attorney, at the address stated on the
writ of garnishment.
You will also be given an opportunity to request a hearing after you receive the
answer of garnishee. A request for hearing can be made no later than ten days after you
receive the answer of garnishee, unless good cause is shown why the request was filed
later.
If you request a hearing, the court or justice of the peace will set the hearing
within ten days of the date you submitted your request for hearing, and the court will
notify you, the judgment creditor and the garnishee of the date, time and place of the
hearing.
Request for hearing
I request a hearing because:
_____ On my normal payday I received no earnings (paycheck).
_____ A copy of the nonexempt earnings statement did not accompany my paycheck.
_____ The judgment creditor does not have a valid judgment against me or that
judgment has been paid in full.
_____ My employer has not delivered to me the notice to judgment debtor answer of
garnishee (employer) and request for hearing forms within fifteen days.
_____ The debt of the judgment creditor is subject to an effective agreement for
debt scheduling between me and a qualified debt counseling organization.
Dated: ___________________________________
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
D. At the top of the first page of the initial notice to judgment debtor described
in subsections C and E of this section a Spanish translation shall be printed of the
language below:
The court has issued an order for your employer to take part of your salary and pay your
creditor until the judgment against you is paid off. According to the law, your creditor
has a right to only part of your salary. Below there is an explanation of your
rights. A written Spanish translation of the notice below can be obtained at the court.
E. The notice to judgment debtor and request for hearing form shall be in a form
prescribed by the supreme court and shall contain at a minimum the following:
1. An explanation of the judgment debtor's rights and responsibilities relating to
the garnishment procedure, including information concerning:
(a) Exemption rights.
(b) Grounds for objecting to the writ.
(c) The objection and hearing procedures.
2. A form on which the judgment debtor may request a hearing.
F. The notice to judgment debtor and request for hearing form prescribed by the
supreme court shall be in substantially the following form:
Notice to judgment debtor
This is your second notice that a writ of garnishment has been issued in this
case. The writ is a court order requiring the garnishee to withhold a certain amount
from your earnings and to continue to withhold a portion of your earnings until the
judgment is satisfied or the writ is quashed.
The law provides that a certain amount of each paycheck or other periodic earnings
is exempt from collection by a writ of garnishment. In some cases of very low income no
amount can be garnished except for an order for support of a person.
If you believe that too much of your earnings have been withheld from your paycheck
or that no amount should be withheld you may request a hearing before this court. Among
the reasons for requesting a hearing are:
1. The judgment creditor does not have a valid judgment against you or the judgment
has been paid in full.
2. The garnishee's answer is incorrect.
3. Your earnings are already subject to a writ of garnishment or are subject to a
court ordered assignment for payment of support.
4. The judgment creditor's debt is subject to an effective agreement for debt
scheduling between you and a qualified debt counseling organization.
To request a hearing, deliver the request for hearing form appearing below, or a
substantially similar form, to the clerk of this court or the justice of the peace. You
must mail or deliver a copy of the request for hearing to the garnishee and to the
judgment creditor or his attorney at the address on the writ of garnishment.
If you do not deliver the request for hearing form to this court within ten days
after the date you receive this notice and the answer of the garnishee, your request for
hearing will be denied, unless good cause for the delay is shown. You must check a box
or state your reasons for disputing the claim in the space provided on the form.
If you request a hearing, it will be conducted no later than ten days after your
request is received by the court. The court will send you notice of the date, time and
place.
The nonexempt portion of your earnings will continue to be withheld by the garnishee
and delivered to the judgment creditor until the judgment is paid in full, or the
garnishment is ordered to stop. Whether or not you request a hearing at this time, if
you believe too much money is withheld from your earnings pursuant to this garnishment at
some time in the future, you will have the same opportunity to request a hearing at that
time.
Request for hearing
I request a hearing because:
_____ The judgment creditor does not have a valid judgment against me.
_____ The judgment has been paid in full.
_____ The garnishee's answer is incorrect.
_____ My earnings are already subject to a writ of garnishment or court ordered
assignment for payment of support.
_____ Other: ___________________________________________________________.
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
Warning: You waive your right to a hearing on the monies withheld in this pay
period unless you file this request for hearing within ten days after receiving the
garnishee's answer or show good cause for filing the request late.
G. The answer form shall be in a form prescribed by the supreme court and shall
require at a minimum that the answer of the garnishee set forth those items required to
be set forth pursuant to section 12-1598.08, subsection B.
H. The instructions to garnishee shall be in a form prescribed by the supreme court
and shall contain at a minimum:
1. An explanation of the garnishee's responsibilities relating to the garnishment
procedure, including instructions for the proper completion of the required forms and
statements.
2. A notice to the garnishee concerning the provisions of section 12-1598.13.
I. The nonexempt earnings statement shall be in a form prescribed by the supreme
court and shall contain at a minimum:
1. A formula for the calculation of the nonexempt earnings of a judgment debtor,
pursuant to applicable state and federal law.
2. A form on which the judgment debtor may request a hearing.
J. The nonexempt earnings statement shall be in a form prescribed by the supreme
court, and for an underlying judgment that is not based on an order for support of a
person shall be in substantially the following form:
Nonexempt earnings statement
(Judgment not for support)
Pay period __________________ to ____________________
(beginning date) (ending date)
(answer all pertinent questions)
---------------------------------------------------------------
¦ ¦ ¦
¦ 1. The judgment debtor ¦ yes no ¦
---------------------------------------------------------------
¦ is an employee or is otherwise ¦ ¦
¦ owed earnings. If the answer ¦ 1. __________________ ¦
¦ is "no", give the judgment ¦ (date) ¦
¦ debtor's last date of employment ¦ ¦
¦ by your firm or the last date for ¦ ¦
¦ which earnings are owed. ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 2. For the earnings of the ¦ ¦
¦ judgment debtor for this pay period ¦ ¦
¦ enter all of the following: ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ (a) Gross earnings. ¦ 2.(a) _______________ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ (b) Disposable earnings ¦ 2.(b) _______________ ¦
¦ (gross earnings minus deductions ¦ ¦
¦ required by law). ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ (c) Enter twenty-five per ¦ 2.(c) _______________ ¦
¦ cent of line 2(b). ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 3. The current federal ¦ 3. __________________ ¦
¦ minimum wage is $_____ per hour. ¦ ¦
¦ Enter one of the following using ¦ ¦
¦ an appropriate pay period: weekly ¦ ¦
¦ (thirty times minimum wage), ¦ ¦
¦ biweekly (sixty times minimum wage), ¦ ¦
¦ semimonthly (sixty-five times ¦ ¦
¦ minimum wage), monthly (one hundred ¦ ¦
¦ thirty times minimum wage). ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 4. Subtract line 3 from line ¦ 4. __________________ ¦
¦ 2(b) and enter. ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 5. Enter line 2(c) or line 4, ¦ 5. __________________ ¦
¦ whichever is smaller. ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 6. Enter the amount withheld ¦ 6. __________________ ¦
¦ from the judgment debtor's earnings ¦ ¦
¦ because of a court ordered assignment ¦ ¦
¦ for support of a person or a garnishment ¦ ¦
¦ or levy for the collection of taxes. ¦ ¦
---------------------------------------------------------------
¦ ¦ ¦
¦ 7. Subtract line 6 from line ¦ 7. __________________ ¦
¦ 5 and enter here. This is the amount ¦ ¦
¦ of nonexempt earnings you are to ¦ ¦
¦ withhold and forward to the judgment ¦ ¦
¦ creditor with this statement. ¦ ¦
---------------------------------------------------------------
Dated: _____________________________
___________________________________________
Garnishee's name
___________________________________________
Address
___________________________________________
City, state, zip code
Request for hearing
If you believe that the amount of your nonexempt earnings has been incorrectly
calculated for this pay period or that no amount should be withheld because the
garnishment or underlying judgment is invalid, satisfied or superseded, you may request a
hearing within ten days after receiving the attached nonexempt earnings statement by
completing the form below and delivering the request for hearing to the court or justice
of the peace. You must deliver a copy of your request for hearing to the judgment
creditor and the garnishee.
The court will notify you and the other parties of the date and time for the
hearing. A hearing will be set within ten days of your request.
I request a hearing for the following reason:
_____ The nonexempt earnings statement is incorrectly filled out.
_____ Other: ___________________________________________________________.
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
K. The nonexempt earnings statement prescribed by the supreme court for an
underlying judgment that is based on an order for support of a person shall be in
substantially the following form:
Nonexempt earnings statement
(Judgment for support)
Pay period __________________ to ____________________
(beginning date) (ending date)
(answer all pertinent questions)
------------------------------------------------------------
¦ ¦ ¦
¦ 1. The judgment debtor ¦ yes no ¦
------------------------------------------------------------
¦ is an employee or is otherwise ¦ ¦
¦ owed earnings. If the answer ¦ 1. __________________ ¦
¦ is "no", give the judgment ¦ (date) ¦
¦ debtor's last date of employment ¦ ¦
¦ by your firm or the last date for ¦ ¦
¦ which earnings were owed. ¦ ¦
------------------------------------------------------------
¦ ¦ ¦
¦ 2. For the earnings of the ¦ 2.(a) _______________ ¦
¦ judgment debtor for this pay period ¦ ¦
¦ enter all of the following: ¦ ¦
¦ ¦ ¦
¦ (a) Gross earnings. ¦ ¦
------------------------------------------------------------
¦ ¦ ¦
¦ (b) Disposable earnings ¦ 2.(b) _______________ ¦
¦ (gross earnings minus deductions ¦ ¦
¦ required by law). ¦ ¦
------------------------------------------------------------
¦ ¦ ¦
¦ (c) Enter fifty per cent ¦ 2.(c) _______________ ¦
¦ of line 2(b). ¦ ¦
------------------------------------------------------------
¦ ¦ ¦
¦ 3. Enter the amount withheld ¦ 3. __________________ ¦
¦ from the judgment debtor's earnings ¦ ¦
¦ because of a court ordered assignment ¦ ¦
¦ for the support of a person or a ¦ ¦
¦ garnishment or levy for the ¦ ¦
¦ collection of taxes. ¦ ¦
------------------------------------------------------------
¦ ¦ ¦
¦ 4. Subtract line 3 from line ¦ 4. __________________ ¦
¦ 2(c) and enter here. This is the ¦ ¦
¦ amount of nonexempt earnings you ¦ ¦
¦ are to withhold and forward to the ¦ ¦
¦ judgment creditor with this ¦ ¦
¦ statement. ¦ ¦
------------------------------------------------------------
Dated: _____________________________
___________________________________________
Garnishee's name (print)
___________________________________________
Address
___________________________________________
City, state, zip code
Request for hearing
If you believe that the amount of your nonexempt earnings has been incorrectly
calculated for this pay period or that no amount should be withheld because the
garnishment or underlying judgment is invalid, satisfied or superseded, you may request a
hearing within ten days after receiving the attached nonexempt earnings statement by
completing the form below and delivering the request for hearing to the court or justice
of the peace. Deliver a copy of your request for hearing to the judgment creditor and
the garnishee.
The court will notify you and the other parties of the date and time for the
hearing. A hearing will be set within ten days after your request.
I request a hearing for the following reason:
_____ The nonexempt earnings statement is incorrectly filled out.
_____ Other: ___________________________________________________________.
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
L. The nonexempt earnings statement prescribed by the supreme court for an
underlying judgment that is based on a judgment for collection of taxes shall be in
substantially the following form:
Nonexempt earnings statement
(Judgment for collection of taxes)
Pay period __________________ to ____________________
(beginning date) (ending date)
(answer all pertinent questions)
----------------------------------------------------------
¦ ¦ ¦
¦ 1. The judgment debtor ¦ yes no ¦
----------------------------------------------------------
¦ is an employee or is otherwise ¦ ¦
¦ owed earnings. If the answer ¦ 1. __________________ ¦
¦ is "no", give the judgment ¦ (date) ¦
¦ debtor's last date of employment ¦ ¦
¦ by your firm or the last date for ¦ ¦
¦ which earnings were owed. ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ 2. For the earnings of the ¦ 2.(a) _______________ ¦
¦ judgment debtor for this pay period ¦ ¦
¦ enter all of the following: ¦ ¦
¦ ¦ ¦
¦ (a) Gross earnings. ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (b) Deductions required ¦ 2.(b) _______________ ¦
¦ by law. ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (c) Net disposable income ¦ 2.(c) _______________ ¦
¦ subtract line (b) from line (a). ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (d) Enter amounts withheld ¦ 2.(d) _______________ ¦
¦ pursuant to a garnishment or ¦ ¦
¦ court ordered assignment for ¦ ¦
¦ collection of support of a person. ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (e) Enter amounts withheld ¦ 2.(e) _______________ ¦
¦ pursuant to a garnishment or levy ¦ ¦
¦ served before this garnishment that ¦ ¦
¦ was not for support of a person. ¦ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (f) Add lines (d) and (e). ¦ 2.(f) _______________ ¦
----------------------------------------------------------
¦ ¦ ¦
¦ (g) Subtract line (f) from ¦ 2.(g) _______________ ¦
¦ line (c). This is the amount you ¦ ¦
¦ are to withhold and forward to the ¦ ¦
¦ judgment creditor with this ¦ ¦
¦ statement. ¦ ¦
----------------------------------------------------------
Dated: _____________________________
___________________________________________
Garnishee's name (print)
___________________________________________
Address
___________________________________________
City, state, zip code
Request for hearing
If you believe that the amount of your nonexempt earnings has been incorrectly
calculated for this pay period or that no amount should be withheld because the
garnishment or underlying judgment is invalid, satisfied or superseded, you may request a
hearing within ten days after receiving the attached nonexempt earnings statement by
completing the form below and delivering the request for hearing to the court or justice
of the peace. Deliver a copy of your request for hearing to the judgment creditor and
the garnishee.
The court will notify you and the other parties of the date and time for the
hearing. A hearing will be set within ten days after your request.
I request a hearing for the following reason:
_____ The nonexempt earnings statement is incorrectly filled out.
_____ Other: __________________________________________________________.
___________________________________________
Name (print)
___________________________________________
Signature
___________________________________________
Address
___________________________________________
City, state, zip code
___________________________________________
Telephone number
M. A party to a garnishment proceeding may use documents other than those provided
pursuant to subsection A of this section, provided that such documents are substantially
similar to those prescribed by the supreme court pursuant to this section.
12-1598.17 Mailing; receipt; presumptions
A. For the purposes of this article, it is presumed that a document has been
received five days after it is mailed as provided in section 12-1598, paragraph 2,
subdivision (b).
B. For the purposes of this article, if a party to the garnishment action mails a
document to the address contained in the writ or to the most recent address contained in
the party's records, it is presumed that the party has complied with the good faith
requirement of section 12-1598, paragraph 2, subdivision (b).
C. For the purposes of this article, delivery as defined by section 12-1598,
paragraph 2, subdivision (b) shall not be deemed service by mail.
12-1598 Definitions
In this article, unless the context otherwise requires:
1. "Debt scheduling" means counseling and assistance provided to persons by a
qualified debt counseling organization if:
(a) The counseling and assistance are manifested by a written agreement.
(b) The persons pay that portion of their income that has been determined to not be
required to make payments for support of a person or to maintain health or the essentials
of life.
(c) The payments are made to the qualified debt counseling organization until the
debts are fully satisfied.
(d) The debts are determined as follows:
(i) The creditors are notified by the qualified debt counseling organization of the
person's intent to participate in debt scheduling and of their opportunity to object to
the participation within fifteen days after receiving the notice.
(ii) A creditor not so notified is not subject to the agreement.
(iii) A creditor who timely objects, in writing, is not subject to the agreement.
(iv) A creditor who does not timely respond to the notice, in writing, is subject
to the agreement.
(e) The agreement is terminated on the occurrence of any of the following:
(i) Agreement of the parties.
(ii) Payment in full.
(iii) Death of the persons.
(iv) Filing of a voluntary or involuntary petition in bankruptcy.
(v) Failure to pay, within fifteen days of its due date, any payment due under the
agreement.
2. "Deliver" means any of the following:
(a) To hand deliver.
(b) To mail by regular first class mail to the address which the sender determines
through reasonable good faith efforts to be best calculated to reach the recipient in a
timely manner.
(c) To serve on a party pursuant to the rules of civil procedure applicable to
service of a summons.
3. "Disposable earnings" means that amount remaining from the gross earnings for a
pay period after the deductions required by state and federal law.
4. "Earnings" means compensation paid or payable for personal services, whether
these payments are called wages, salary, commission, bonus or otherwise. Earnings
include periodic payments pursuant to a pension or retirement program.
5. "Effective agreement" means an agreement under which no act of termination has
occurred.
6. "Exempt earnings" means those earnings or that portion of earnings which
pursuant to state or federal law is not subject to judicial process including
garnishment.
7. "Good faith" means honesty in fact in the conduct or transaction concerned.
8. "Judgment creditor" means a party who has a money judgment or an order for
support of a person that is due and unpaid.
9. "Judgment debtor" means a party against whom a money judgment or order for
support of a person has been awarded.
10. "Nonexempt earnings" means those earnings or that portion of earnings which is
subject to judicial process including garnishment.
11. "Payday" means the fixed, regular day for payment of wages designated by an
employer pursuant to section 23-351.
12. "Qualified debt counseling organization" means a nonprofit corporation
authorized to do business in this state for the purpose of counseling persons with
respect to their financial obligations and assisting them in dealing with their
creditors.
13. "Receipt" means actually received.
12-1601 Salaries subject to garnishment
The salaries of officers, deputies, clerks and employees of the state or its
political subdivisions shall be subject to garnishment as provided in this article, and
such garnishment shall not be construed as against public policy.
12-1602 Service of writ and answer
A. For state employees who are not employees of a state university, the writ of
garnishment shall be served upon the assistant director for finance in the department of
administration in garnishment of state salaries or wages. For state employees who are
employed by a university the writ of garnishment shall be served upon the chief
disbursing officer of the appropriate state university in garnishment of state salaries
or wages paid by the university.
B. For employees of counties in this state, the writ of garnishment shall be served
on the clerk of the board of supervisors in garnishment of county salaries or wages. For
employees of all other political subdivisions of the state, the writ of garnishment shall
be served upon a designated chief disbursing officer of the political subdivision in
garnishment of salaries or wages paid by such political subdivisions.
C. If the state is named as garnishee, the attorney general shall answer the
writ. If a county or other political subdivision is named as garnishee, its legal
representative shall answer the writ.
12-1603 Procedure
The procedure relating generally to garnishment including the time to answer is
applicable to garnishments pursuant to section 12-1601, except that no default judgment
as provided in section 12-1583 may be entered against the state.
12-1604 Liability of officer for failure to perform duties
An officer whose duties are prescribed in this article shall be liable on his
official bond to a party aggrieved for failure to perform the duties prescribed by this
article.
12-1611 Renewal by action
A judgment may be renewed by action thereon at any time within five years after the
date of the judgment.
12-1612 Renewal by affidavit
A. A judgment for the payment of money which has been entered and docketed in the
civil docket or civil order book of the United States district court or superior court,
whether originally rendered by it or entered upon a transcript of judgment from another
court, or recorded with the county recorder, may be renewed by filing an affidavit for
renewal with the clerk of the proper court.
B. The judgment creditor, his personal representative or assignee may within ninety
days preceding the expiration of five years from the date of entry of such judgment, make
and file an affidavit, known as a renewal affidavit, entitled as in the action setting
forth:
1. The names of the parties, the name of the court in which docketed, if recorded
the name of the county in which recorded, the date and amount of the judgment, the number
and page of the docket in which entered by the clerk of the court, if recorded, the
number and page of the book in which recorded by the county recorder, the name of the
owner of the judgment, and his source and succession of title, if not the judgment
creditor.
2. That no execution is anywhere outstanding and unreturned upon the judgment, or
if any execution is outstanding, that fact shall be stated.
3. The date and amount of all payments upon the judgment and that all payments have
been duly credited upon the judgment.
4. That there are no set-offs or counterclaims in favor of the judgment debtor, and
if a counterclaim or set-off does exist in favor of the judgment debtor, the amount
thereof, if certain, or, if the counterclaim or set-off is unsettled or undetermined, a
statement that when it is settled or determined by action or otherwise, it may be allowed
as a payment or credit upon the judgment.
5. The exact amount due upon the judgment after allowing all set-offs and
counterclaims known to affiant, and other facts or circumstances necessary to a complete
disclosure as to the exact condition of the judgment.
C. If the judgment was docketed by the clerk of the court upon a certified copy
from any other court and subsequently an abstract recorded with the county recorder, the
affidavit shall, in addition to the foregoing, set forth a statement of each county in
which such transcript has been docketed and abstract recorded. The affidavit shall be
verified positively by the person making it, and not upon information and belief.
D. The filing of the affidavit in the office of the clerk of the court where the
judgment is entered and docketed shall renew and revive the judgment to the extent of the
balance shown due in the affidavit.
E. Additional and successive renewal affidavits as provided for in subsection B may
be made and filed within ninety days of expiration of five years from the date of the
filing of a prior renewal affidavit.
F. Recorded judgments which have been timely renewed by a renewal affidavit and
successive affidavits, even if such successive affidavits were not authorized by prior
law, may be renewed as provided in this section if the prior renewal affidavits were
filed within ninety days from the expiration of each successive five year period.
12-1613 Docketing and recording affidavit of renewal; effect
A. The affidavit of renewal shall be docketed by the clerk in the proper docket or
book, and he shall enter in the proper docket or book forthwith, after the statement of
the original judgment, the date and fact of the renewal, and the amount for which the
judgment is renewed.
B. The entry and docketing of the affidavit by the clerk shall renew the judgment
for a period of five years from the time of docketing.
C. No lien upon or against the real property of the judgment debtor shall be
continued by an affidavit of renewal until a copy of the affidavit, certified by the
clerk of the court, is recorded in the office of the county recorder.
D. From and after recordation of the copy of the affidavit of renewal, certified by
the clerk of the court, the judgment shall be a lien to the extent of the balance shown
in the affidavit of renewal against all real property of the judgment debtor, except such
as is exempt from execution, including interest in the homestead, for a period of five
years from the date of docketing the affidavit of renewal with the clerk.
E. A copy of the renewal affidavit and of the docket entries thereon, certified by
the clerk of the court wherein they are filed, may be docketed in any other county of the
state in which a transcript of the original judgment was filed, and a copy of the renewal
affidavit may be recorded with the county recorder of any county wherein the original
judgment has been previously filed or docketed or wherein the judgment creditor desires
the judgment to become a lien upon real property of the judgment debtor.
12-1621 Notice of sale; perishable, personal and real property; posting, publication and place of sale
A. Notice of sale under execution shall be made as follows:
1. For the sale of perishable personal property, written notice of the time and
place of sale shall be posted in three public places, two of which shall be in the
precinct and one at or near the door of the courthouse of the county in which the sale is
to take place, for such period of time before the sale as is reasonable, considering the
character and condition of the property.
2. For the sale of personal property other than that which is perishable, a posting
similar to that provided in paragraph 1 of this subsection shall be made for not less
than ten days successively before the day of sale.
3. For the sale of real property, notice shall be given by posting notices for not
less than fifteen days successively before the day of sale in three public places in the
county, one of which shall be at or near the courthouse door, and publishing a copy
thereof in a newspaper for three weeks before the day of sale.
B. The notices shall note the judgment, parties, amount and court in which the
judgment was rendered, and particularly describe the property to be sold, and, for real
property to be sold, shall include the legal description of the property and the street
address if any, or identifiable location of the property. Failure to accurately describe
within any such notice either the street address or the identifiable location of the real
property to be sold shall not be grounds for invalidating any such sale if the correct
legal description of the real property to be sold was noted. A notice for sale of real
property required by subsection A, paragraph 3 shall include a notice in substantially
the following form:
Notice to Judgment Debtor
Title 33, chapter 8, article 1 of the ARIZONA Revised Statutes, may permit you to
protect your residence from certain types of legal process through the homestead
exemption.
If you are in doubt as to your rights, you should obtain legal advice.
C. Real property shall be sold at or near the courthouse door of the county where
the property is situated. Personal property shall be sold on the premises where it is
taken in execution, at the courthouse door of the county or at some other place more
convenient for exhibiting the property to purchasers if necessitated by the nature of the
property.
12-1622 Procedure in selling property under execution
A. All sales under execution shall be made at public auction to the highest bidder,
between the hours of ten a.m. and four p.m.
B. After sufficient property has been sold to satisfy the judgment and costs, no
more shall be sold.
C. No person making the sale shall become a purchaser or be interested in such
sales.
D. When the sale is of personal property capable of immediate delivery, the
property shall be within view and shall be sold in parcels so as to bring the highest
price and the judgment debtor or creditor may direct the selling officer in such cases.
E. Partnership interests and interests in personal property without right to
exclusive possession may be sold without the presence or the delivery of the property.
F. When the sale is of property too bulky to be taken into immediate possession, or
of livestock running at large on a range, it is not necessary that such property or any
part thereof be present at the place of sale, and the purchaser at the sale may take the
property or gather and pen the stock and select therefrom the number purchased by him.
G. When the sale is of real property, consisting of lands that may be sold in
parcels, it may be sold separately at direction of the judgment debtor, who shall have
the option of designating the order in which parcels shall be sold.
H. When property is held in common, the interest of the judgment debtor shall be
sold as a whole.
I. Shares of stock in a corporation may be sold as other personal property capable
of manual delivery is sold subject to the provisions of section 47-8113.
12-1623 Postponement of sale
The officer may postpone the sale from time to time by continuing the posting and
publication of the notice until the day to which the sale is postponed, and appending at
the foot thereof upon each successive postponement the following:
"The above sale is postponed until the _________________ day of ________, 19__, at
________ o'clock ____ m. ______________________ (name and official title)."
12-1624 Liability of bidder for failure to pay; resale and recovery of loss and costs
If the purchaser at the sale under execution does not pay the full bid price and
statutory fees within five working days after the sale, the officer shall immediately
offer the property to the second highest bidder who may, at his option, purchase the
property at his bid. If the second highest bidder does not pay the full bid price, as
bid by that bidder, and statutory fees within five working days after the property has
been offered to him by the officer, or if there is no second bidder, the property may be
resold by a new execution sale. If the second highest bidder elects not to purchase the
property, or if there is no second bidder, the original purchaser shall be liable to any
person who suffers loss or expenses, including attorney's fees, occasioned by his failure
to pay the bid price. The five day deadline set forth herein may be extended if agreed
upon in writing by the officer conducting the sale.
12-1625 Delivery of property and certificate of sale
When the purchaser of personal property capable of manual delivery pays the purchase
money, the officer shall deliver the property and if desired, execute and deliver to the
purchaser a certificate of sale. If personal property not capable of manual delivery or
which may be sold without the presence or delivery of the property, the officer making
the sale shall execute and deliver to the purchaser a certificate of sale. The
certificates convey to the purchaser all the right which the debtor had in the property
on the day the levy was made.
12-1626 Sale of real property and rights of purchaser; delivery and recording of certificate of sale
A. Upon a sale of real property, the purchaser is substituted to and acquires all
the right, title, interest and claim of the judgment debtor thereto.
B. When the estate is less than a leasehold of two years unexpired time, the sale
is absolute. In all other cases, including sales under order of court in foreclosure
suits, the property is subject to redemption.
C. The officer shall give to the purchaser a certificate of sale, setting forth a
full description of the real property sold, the price bid and paid for each parcel if
sold in lots or parcels and whether subject to redemption or not.
D. A duplicate of the certificate shall be recorded by the officer in the office of
the county recorder.
12-1631 Order for appearance of debtor; limitation
A. When a judgment has been entered and docketed, the judgment creditor, at any
time may:
1. Have an order from the court requiring the judgment debtor to appear and answer
concerning his property before the court or a referee, at a time and place specified in
the order.
2. Have a subpoena issued compelling the judgment debtor to appear for deposition
upon oral examination and answer concerning his property at a time and place specified in
the subpoena.
B. No judgment debtor shall be required to attend out of the county in which he
resides.
12-1632 Disclosure of property; execution
A. After issuing an execution and upon proof by affidavit or otherwise, if it
appears to the court that a judgment debtor has property which he unjustly refuses to
apply toward satisfaction of the judgment, the court may order the judgment debtor to
appear at a specified time and place before the court or a referee, to answer concerning
the failure to apply such property to satisfy the judgment.
B. Such proceedings may thereupon be had for application of the property of the
judgment debtor toward satisfaction of the judgment as are provided upon return of an
execution.
12-1633 Payment to officer by third party; discharge; citation to third party
A. After issuance of an execution, any person indebted to the judgment debtor may
pay to the officer holding the writ the amount of his debt or so much thereof as is
necessary to satisfy the execution. The officer's receipt shall be a sufficient
discharge for the amount so paid.
B. If it appears to the court, by affidavit or otherwise, that any person has
property of the judgment debtor or is indebted to him in an amount exceeding fifty
dollars, the court may order such person to appear at a specified time and place, before
it or a referee, and answer concerning such indebtedness.
12-1634 Attendance of witnesses; application of property toward satisfaction of judgment
A. Witnesses may be required to appear and testify before the court or referee upon
any proceeding under this article as upon trial of an action.
B. The court may order any property of the judgment debtor not exempt from
execution, in the hands of any person or due the judgment debtor, to be applied toward
satisfaction of the judgment.
12-1635 Action by judgment creditors
A. If it appears that a person alleged to have property of the judgment debtor or
to be indebted to him claims an interest in the property adverse to the judgment debtor
or denies the debt, the court may order the judgment creditor to institute an action for
recovery of such interest or debt and forbid any disposition of the interest or debt
until an action can be commenced and prosecuted to judgment.
B. The execution creditors may also proceed against defendant therein and other
parties, by original complaint, to obtain satisfaction of their executions after they
have been returned unsatisfied in whole or in part.
12-1641 Action by creditor; failure to bring action and effect
Any person bound as surety upon a contract for payment of money or performance of an
act, when the right of action has accrued, may require, by notice in writing, the
creditor or obligee forthwith to bring an action upon the contract. If the creditor or
obligee, not being under legal disability, fails to bring the action within sixty days
after receiving the notice, and prosecute it to judgment and execution, the surety giving
the notice shall be discharged from all liability thereon.
12-1642 Determination of issue between principal and surety; finding for surety and order of levy
A. When an action is brought against two or more defendants upon a contract, and
one or more of the defendants are surety for the others, the surety may cause the issue
of suretyship between the defendants to be tried and determined at any time before the
trial, but such proceedings shall not delay the action of the plaintiff.
B. If the issue is determined in favor of the surety, the court shall order the
sheriff to levy the execution first upon the property of the principal which is subject
to execution and situate in the county in which the judgment was rendered before a levy
is made upon the property of the surety, if enough property of the principal is found as
in the opinion of the sheriff or constable is sufficient to make the amount of the
execution, otherwise the levy shall be made on so much property of the principal as is
found, if any, and upon so much of the property of the surety as is necessary to make the
amount of the execution. The clerk shall make a memorandum of such order on the
execution.
12-1643 Subrogation of surety to rights of judgment creditor; execution against debtor
A. When a person who is surety on an undertaking is compelled to pay a judgment or
part thereof, or makes a payment upon a judgment by reason of suretyship, such judgment
shall not be discharged by such payment but shall remain in force for the use of the
surety and shall be considered as assigned to the surety together with all rights of the
creditor thereunder to the extent of the payment made by the surety, and interest
thereon.
B. The surety may have execution issued on the judgment in the name of the creditor
for use of such surety against the principal debtor for the full amount of the payment,
interest thereon, and all costs.
C. The execution shall be issued upon the application of the surety to the clerk or
court, and shall be levied, collected and returned as in other cases.
12-1644 Issuance of execution for repayment and contribution
If there is more than one surety and one or more of them has failed to pay his
proportionate part of the judgment, execution may issue, as provided in section 12-1643,
against the principal for the use of the surety who has paid more than his proportionate
part for the whole amount paid by him, and interest thereon, and also against his
cosureties for their proportionate parts of the excess paid by him, and interest thereon.
12-1645 Issuance of execution against principal by officer paying judgment
If a sheriff or other officer is compelled to pay a judgment or a part thereof by
reason of a default of such officer, except for failing to pay over any money collected
or for wasting property levied on, the sheriff or other officer may have execution
therefor against the principal defendant in such judgment as provided in the case of a
surety.
12-1646 Extension of remedy
The remedy provided in this article for sureties extends to endorsers, guarantors,
drawers of bills which have been accepted, and every other suretyship, whether created by
express contract or operation of law.
12-1701 Definition
In this article, unless the context otherwise requires: "Foreign judgment" means any
judgment, decree, or order of a court of the United States or of any other court which is
entitled to full faith and credit in this state.
12-1702 Filing and status of foreign judgments
A copy of any foreign judgment authenticated in accordance with the act of Congress
or the statutes of this state may be filed in the office of the clerk of any superior
court of this state. The clerk shall treat the foreign judgment in the same manner as a
judgment of the superior court of this state. A judgment so filed has the same effect
and is subject to the same procedures, defenses and proceedings for reopening, vacating,
or staying as a judgment of a superior court of this state and may be enforced or
satisfied in like manner.
12-1703 Notice of filing
A. At the time of the filing of the foreign judgment, the judgment creditor or the
judgment creditor's lawyer shall make and file with the clerk of the superior court an
affidavit setting forth the name and last known post office address of the judgment
debtor, and the judgment creditor.
B. Promptly upon the filing of the foreign judgment and the affidavit, the judgment
creditor shall mail notice of the filing of the foreign judgment and a copy of the
foreign judgment to the judgment debtor at the address given and shall file proof of
mailing with the clerk. The notice shall include the name and post office address of the
judgment creditor and the judgment creditor's attorney, if any, in this state.
12-1704 Stay of enforcement of judgment
A. If the judgment debtor shows the superior court that an appeal from the foreign
judgment is pending or will be taken, or that a stay of execution has been granted, the
court shall stay enforcement of the foreign judgment until the appeal is concluded, the
time for appeal expires, or the stay of execution expires or is vacated, upon proof that
the judgment debtor has furnished the security for the satisfaction of the judgment
required by the state in which it was rendered.
B. If the judgment debtor shows the superior court any ground upon which
enforcement of a judgment of any superior court of this state would be stayed, the court
shall stay enforcement of the foreign judgment for an appropriate period, upon requiring
the same security for satisfaction of the judgment which is required in this state.
C. No execution or other process for enforcement of a foreign judgment filed under
section 12-1702 shall issue until twenty days after the date the judgment creditor mails
the notice of filing of the foreign judgment and files proof of mailing with the clerk as
required under section 12-1703.
12-1705 Filing fees
Any person filing a foreign judgment shall pay to the clerk a fee pursuant to
section 12-284. Fees for docketing, transcription or other enforcement proceedings shall
be as provided for judgments of the superior court.
12-1706 Other rights of enforcement
The right of a judgment creditor to bring an action to enforce his judgment instead
of proceeding under this article remains unimpaired.
12-1707 Uniformity of interpretation
This article shall be so interpreted and construed as to effectuate its general
purpose to make uniform the law of those states which enact it.
12-1708 Short title
This article may be cited as the uniform enforcement of foreign judgments act.
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