Turning Judgment Day Into a Pay Day: An Overview on the Execution of Judgments in Iowa

Transcription

1 Turning Judgment Day Into a Pay Day: An Overview on the Execution of Judgments in Iowa 8:00 a.m. - 8:30 a.m. Presented by: Kristina Stanger Nyemaster Goode PC 700 Walnut St, Suite 1600 Des Moines, IA Phone: Friday, September 15, 2017

2 IOWAlk the walk. As Iowa s largest law firm, we re dedicated to helping Iowa s business community succeed. We offer larger teams for a broader array of practice areas. But more than that, we are Iowa, with roll-up-your sleeves-iowan work ethic. CEDAR RAPIDS AMES DES MOINES NYEMASTER.COM Welcome to Turning Judgment Day Into a Pay Day: Judgment Collections Overview ISBA Bridge the Gap September 14-15, 2017 KRISTINA M. STANGER KRISTINA M. STANGER is a member of Nyemaster Goode s Litigation Department. Her litigation experience includes both plaintiff and defendant work in a variety of contexts, including, commercial and contract claims, business torts, employment and discrimination, personal injury, professional malpractice, property damage, construction litigation, and products liability. Kristina was commissioned as a Medical Service Corps Officer in the United States Army in 2000 through the OCS program. She served in Iraq from 2003 through 2004, and continues to serve through the Iowa National Guard and is now a Lieutenant Colonel and the State of Iowa s Strategic Planner. She graduated with high honors and Order of the Coif from Drake University Law School where she was a member of the Drake Law Review and active in the moot court program. Kristina is a member of the National Order of Barristers, national and local bar association organizations, Defense Research Institute, Iowa Defense Counsel, and is active with lobbying and mentoring programs within the military organization. She has given speeches and authored articles and updates regarding civil and military law matters. T: (515) F: (515) E: 700 Walnut, Suite 1600 Des Moines, IA (515)

3 What Did I Win? Judgment does not guarantee recovery A judgment by itself has minimal value It is the ability to execute that provides the value Approximately 80% of judgments are never satisfied This presentation does not discuss secured interests under UCC provisions Outline Pre-Judgment Considerations Judgment Execution Options Execution Process Pitfalls References Forms: Clerks of Court Iowa Rules Iowa Code Iowa Code Sections: 626 Execution 630 Judgment Debtor s Exams 642 Garnishment Limits Ch. 537 Iowa Consumer Protection Act; includes IDCPA Federal Code Sections: FDCPA 15 U.S.C et seq Federal Consumer Protection Act 2

4 Pre-Judgment (Pre-Lawsuit) Considerations Multiple debtors Company, consumer credit, personal guaranty Judgment proof? Asset search Accurint/Westlaw/UCC filings/real Property assessor s website, IA land records Looking for non-exempt assets not homestead Likelihood of bankruptcy or other judgments (IA Courts Online or PACER search) Payment plan on debt Assignment of Wages, Rents, etc. During lawsuit flag bank account, inheritance prospects, vacation/second properties or employment status Types of Property Real Property automatic lien in the county of the judgment if properly docketed Separate lis pendens filing $50.00 Personal Property No lien until levied upon Sheriff has to seize property under Writ of Execution Need to direct Sheriff LLC interest charging order Secured interest UCC At Judgment 10 years renewable for 10 more Survives death of judgment debtor * Lien on real property owned by debtor in that county at time of entry of judgment Send letter to debtor and arrange for voluntary payment (even a plan > garnishment/ guessing) Debtor may assign property or security interest in exchange for holding off on execution Be aware of appeal period but that does not stop execution (debtor needs to file a bond) 3

5 If They Won t Pay How Do We Go Get It? EXECUTION An execution is the writ of process that gives the Sheriff the power to take the judgment debtor s property for the satisfaction of the judgment. Although the term is used in a broader sense to include the levy and sale, the physical seizure fixes the liability. Execution Options: General and Special SPECIAL ( ) = Used to reach exempt property. Normally used to levy on property pledged in security of debt. Example: Foreclosure of mortgage GENERAL ( 626.7) = Most common. Used to reach non-exempt assets of debtor. May be issued immediately at entry of judgment and lasts for 120 days. Wages, Bank, personal, etc. Examples of Assets Bank garnishment even joint accounts Wage garnishment Public agency Income tax offset UCC filings Credit Reports Levy on rents/lease payments IA Treasure Hunt Wallets Season Tickets to Hawkeyes Boats Shotguns (if more than 1) Agriculture crops, land special considerations (not discussed here) Jewelry NON-EXEMPT Iowa Code 626 and 627 Example: cannot execute on homestead and 1 shotgun 4

6 General Execution Checklist Good for up to 120 days Only 1 execution at a time per judgment If don t know which bank creditor can guess within that county Done through a Writ of Execution Only issued from county Clerk s office where the judgment was obtained. Can be sent to any county directed by the creditor as provided for under 626.2, and Form and contents of Writ handled by Clerk Whether Clerk forwards docs to Sheriff differs by County General Execution Process TO CLERK 1. Obtain and provide certified/exemplified copy of judgment if need to take to another county or state 2. $ Praecipe request for Writ (Form 3.25; I-docs Form 319) 4. Affidavit of Amount General Execution Process TO SHERIFF 1. Call them to find out fees/mileage for service on the Garnishee (bank or employer generally) 2. Send check in advance for fees/mileage ~$ $ Dictation to Sheriff 4. Order to Levy 5. Notice of Garnishment (which they will send to debtor if there is a hit ) Iowa Code A (I-docs Form 308) 5

7 General Execution Process SHERIFF 1. Sends Sheriff s Rogs to Garnishee 2. Answer from Garnishee (If Yes follow up with Sheriff on NOG Form 308) 3. Sheriff waits for response and sends response to Clerk for filing NOTE (for our banking and employer clients) IF GARNISHEE DOES NOT RESPOND Creditor can seek Judgment against Garnishee for FULL amount of debt. 4. Keeps execution open for 120 days unless you release or cancel see letter from Polk County Sheriff Wage Garnishment Limits Does not apply to debts dealing with taxes, bankruptcy orders, student loans or certain family law obligations (15 U.S.C. 1673) Under Yearly Income $0 - $11,999 $250 $12,000 - $15,999 $400 $16,000 - $23,999 $800 $24,000 - $34,999 $1,500 $35,000 - $49,999 $2,000 Yearly Max Amt per Creditor $50, % of yearly earnings Got a Hit Now What? Consider Cancel vs. Release of Execution want funds to be turned over to the Court for payment to creditor Application/Order to Condemn Funds If satisfies the judgment file Satisfaction of Judgment If not complete satisfaction of debt: Issue a new one Application for Judgment Debtor s exam Private Investigator Wait and try again (remember Judgment good for 10 yrs and can be renewed) 6

8 Other Proceedings Transcribe Judgment used to attach the judgment to real property in another IA county $50.00 Filed like a separate motion in that county; assigned a TJ case number Domesticate Foreign Judgment Record a judgment from another state in Iowa to attach to property or to later conduct execution $ like a new lawsuit in that county; requires notice served on debtor Other Proceedings Judgment Debtor s Exam Deposition about assets of Debtor Permitted after returned + unsatisfied execution Application to Court Requires personal service of Order of JDE on Debtor Bankruptcy and Foreclosure can clear your judgment in most circumstances will get a Notice or be sued as a Defendant in order to clear the unsecured judgment Fraudulent Transfers Iowa Code Chapter 684 (lots of factors/high standard) Receivership Iowa Code Chapter 680/681 (can be expensive) QUESTIONS? 7

9 We know Iowa like nobody s business. CEDAR RAPIDS OFFICE 625 FIRST STREET SE, STE 400, CEDAR RAPIDS, IA P F AMES OFFICE 1416 BUCKEYE AVENUE, STE 200, AMES, IA P F DES MOINES OFFICE 700 WALNUT, STE 1600, DES MOINES, IA P F

10

11

12 IN THE IOWA DISTRICT COURT FOR LINN COUNTY GREATAMERICA LEASING CORPORATION, Case No. LACV Plaintiff, v. ORDER TO LEVY INTERTEX APPAREL, LTD, Defendant. Before any action may be taken, you must indicate if this is a Consumer Credit Transaction. STATE OF IOWA, COUNTY OF POLK: To Sheriff of Linn County, Iowa: To Sheriff of Linn County, Iowa: YES X NO You are hereby instructed to levy under a general execution in the above entitled cause upon any and all monies, accounts or assets found in name of Judgment Debtor Intertex Apparel, Ltd., including but not limited to accounts # (see attached) at HSBC. Please serve the execution and levy to HSBC located at 151 Collins Road, Cedar Rapids, IA See attached Exhibit A with Account # Please attempt execution for the full amount of the judgment. Dated this day of March, NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, IA Tel: (515) Fax: (515) By: Kristina M. Stanger, AT ATTORNEYS FOR PLAINTIFF

13 TO THE SHERIFF OF POLK COUNTY, IOWA Please STOP the below referenced garnishment: PLAINTIFF DEFENDANT CASE# REASON: Bankruptcy Court order Paid in full Negative answers Other SIGNED:

14 E-FILED 2017 MAR 07 11:39 AM LINN - CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT FOR LINN COUNTY GREATAMERICA FINANCIAL SERVICES CORPORATION Plaintiff/Petitioner vs. Case No LACV General Execution INTERTEX APPAREL LTD Defendant/Respondent Docket Event Code: EGEN TO THE SHERIFF OF LINN COUNTY, IOWA: YOU ARE HEREBY COMMANDED TO LEVY ON THE FOLLOWING JUDGMENT DEBTOR(S): Issued against INTERTEX APPAREL LTD as described in the "Dictation for Execution". Date of Judgment 12/07/2009 Balance Due on Judgment $68, Original Amount of Judgment $68, Balance Due on Court Costs $ Original Amount of Costs $ Balance Due on Attorney Fees $3, Original Amount of Attorney Fees $3, Interest Accrued to 03/07/2017 Interest Rate Per Annum 18% Effective From 03/16/2009 Pre-judgment Accrued Interest Total Interest Due $ 103, Interest Per Diem $ Dated: March 7, 2017 /s/ JENNIFER SCHRADER Clerk of Court/Designee LINN County Requested by: KRISTINA STANGER Employers to return funds to the sheriff after 120 days from the date of issuance of this writ.

15 E-FILED 2017 MAR 07 11:39 AM LINN - CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT FOR LINN COUNTY GREATAMERICA FINANCIAL SERVICES CORPORATION Plaintiff/Petitioner vs. Case No LACV Return of Service of General Execution Under Iowa Code INTERTEX APPAREL LTD Defendant/Respondent Docket Event Code: RSEX Execution Issued by Clerk March 7, 2017 Issued Against INTERTEX APPAREL LTD Date Served Who Served Where Served Amount Collected Amount Retained Amount to Clerk Date Received Sheriff, County, Iowa By Deputy

16 E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT

17 E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT

18 E-FILED 2017 JUL 28 4:22 PM LINN - CLERK OF DISTRICT COURT

19

20

21 IN THE IOWA DISTRICT COURT FOR LINN COUNTY GREATAMERICA LEASING CORPORATION, Case No. LACV Plaintiff, v. DICTATION TO SHERIFF INTERTEX APPAREL, LTD, Defendant. TO: RE: LINN COUNTY SHERIFF GENERAL EXECUTION ISSUED BY THE CLERK OF COURT FOR LINN COUNTY FOR THE ABOVE-CAPTIONED MATTER Pursuant to the Praecipe issued to the Linn County Clerk of Court for General Execution, upon receipt of the Writ for General Execution, please proceed to levy upon any and all accounts, monies and assets, including but not limited to deposit account, owed to GreatAmerica Leasing Corporation at HSBC located at 151 Collins Road, Cedar Rapids, IA See attached Exhibit A with Account # Pursuant to Iowa Code A, if HSBC s Answers to Interrogatories are in the affirmative, please also provide the enclosed Notice of Garnishment (FORM 308) to the Defendant within 7 days of your receipt by certified mail to the following address: 1400 Broadway, 18 th Floor, New York, NY Please e-file your notice of service of the execution, notice of garnishment and returned Interrogatories from the garnishee as soon as reasonably possible. Should you have any questions with respect to this matter, please contact the undersigned immediately. 1

22 Dated this day of March, NYEMASTER GOODE, P.C. 700 Walnut Street, Suite 1600 Des Moines, Iowa Phone: (515) Fax: (515) By: Kristina M. Stanger, AT ATTORNEYS FOR PLAINTIFF 2