Collection Litigation in Idaho Debbie G. Allen, ADPS City of Boise, Idaho 2008 A summary of obtaining and executing on legal judgments in Idaho, particularly as it pertains to past due debt.
Fair Debt Collection Practices Act ( FDCPA ) creates statutory guidelines under which debt collectors may conduct business, defines rights of consumers involved with debt collectors, and prescribes penalties and remedies for violations of the Act. A current copy of the FDCPA can be obtained from the Federal Trade Commission website at www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf. Pre-Litigation Strategies Before sending a collection to in-house counsel, the collector may consider sending a preliminary warning letter advising the debtor that the account is being referred to an attorney. If the business entity follows the FDCPA, a Mini-Miranda warning should be included warning the debtor that the collector is attempting to collect a debt and that any information obtained will be used for that purpose. If the warning letter is unsuccessful, the debt may be referred to the Legal Department. In most cases, the Legal Department will prepare and mail a demand letter. Effective demand letters can often lead to collection of an obligation without the necessity of initiating litigation. The demand letter should be individualized and comprehensive. Attaching a recital (or accounting) of the obligation together with a draft complaint ready to be filed may give the debtor the perception that immediate litigation is at hand, making the debtor more inclined to consider a resolution of the claim. Litigation Strategies One must consider several questions to decide whether to file a claim in court. The first two considerations should be the size of the claim and the solvency of the debtor. If you are not aware of any assets that a debtor has which may satisfy a sizeable claim, and are unwilling to expend the time or money required to undertake an asset search, it makes little sense to expend significant fees in pursuit of obtaining a judgment which may simply sit in the file. An additional consideration is whether to handle the claim in-house or hire a collection agency or attorney to collect on your behalf. Collection agency fees range from 30% to 50% of the amount recovered, plus costs. Arrangements with attorneys range from strict hourly fees to a percentage of the amount recovered, plus fees. Finally, it is important to consider the status of the debtor. Is the debtor in prison? Is the debtor gainfully employed? Is the debtor deceased? Is the debtor married? Is the debtor in military service? Is the obligation a community obligation or an individual obligation? If the debtor is an organization (corporation, LLC, etc.), what is the status of the entity? The answers to these questions will bear on the decision to pursue collection of the claim in court. But do not allow the answers to these questions to deter you from collecting if you feel comfortable proceeding. For instance, simply because a debtor is deceased does not mean it is impossible to pursue assets in a probate proceeding. The
statute of limitations for claims against an estate is 3 years, unless the estate publishes a notice of filing of claims, in which case the time period is 4 months. If you are interested in collecting your debts, it is worthwhile to pay attention to the legal notices in the local paper. For any agreement based on an alleged contract, you must consider the impact of the statute of limitations. Oral contracts bear a statute of limitations of 4 years (Idaho Code 5-217); written contracts bear a statute of limitations of 5 years (Idaho Code 5-216). Payments on open accounts may extend the statute of limitations (runs from the time of the last item proved on the account on either side) (Idaho Code 5-222). The courts in most states have statutory limits on the size of the claim brought before each level of court. In Idaho, the statutory limit for Small Claims Court is $5,000. Any claim between $5,001 and $10,000 would be brought in Magistrate Court, and any claim over $10,000 would be brought in the District Court. Small Claims Court is an inexpensive avenue to pursue recovery of the smaller debts. Attorneys are not allowed to practice before Small Claims Court, but you may seek the advice of an attorney to help you prepare your case. Small Claims proceedings do not adhere to the rules of evidence or rules of procedure, and a judge hearing a small claims proceeding will listen to (but not necessarily accept) almost any evidence a claimant chooses to offer. While adherence to the rules is not required, a magistrate judge is, after all, still an attorney. A presentation conforming mainly to the rules of evidence and normal courtroom procedures will be received more warmly than one which does not. Small Claims courts in Idaho provide forms which they strongly urge you to use. Packets may be picked up at the courthouse, or you may download the forms from the website. (http://www.courtselfhelp.idaho.gov/). The initial packet to be filled out includes a Summons, Complaint, Blank Answer, and Instructions. The cost to file the complaint is $35.00. Once the complaint is filed, a copy of the complaint, blank answer and instructions will need to be served upon the debtor. There are 3 options for service. The rules provide that you may request the court serve by certified mail, return receipt. If you choose this option, an additional $7 charge will be assessed by the clerk. The second option is to have the U.S. Marshal serve the paperwork. The cost for this service is $25. The final option is to hire a process server. The process server s charge ranges between $25 and $100, depending on how many times they have to drive to the service address to effect service. The debtor has 20 days to answer the complaint after service. If the debtor files an answer, the Small Claims Court will set the case for mediation/trial. Mediation is mandatory in Small Claims Court. The Court views this as preferable to going to trial. However, if the parties are unable to come to an agreement at the morning mediation, the
trial is held that afternoon, so it would be well to be prepared to proceed to trial regardless of your outcome at mediation. On the other hand, should the debtor fail to file an answer, the Small Claims Court will set the matter for a default hearing. At the hearing, the judge will ask to see proof of the debt, so be prepared with your business records. If the judge deems your proof sufficient, he will issue the judgment at the hearing. If the debtor has real property worth executing against, record the judgment with the Recorder s Office. There is a per page cost for recording. This attaches an automatic lien against all real property in the name of the debtor at the time of the judgment, as well as any property purchased after the date of the judgment. To file liens against personal property, you need to file a UCC Statement with the Secretary of State (http://www.sos.idaho.gov/online/ucc/uccsession.jsp?new=y). The cost for filing the lien is $3.00 plus the online transaction fee of $1.00. Magistrate and District Courts If a claim is more than $5,000 and less than $10,000, you may wish to file in Magistrate Court. Anything over $10,000 would be filed in District Court. The proceedings in Magistrate and District Court are more formal. Rules of civil procedure and evidence apply, and attorneys may appear and represent clients. Consulting an attorney may be advisable if the collector feels at all uncomfortable with the expectations in Magistrate and/or District Court. Should the collector wish to collect attorney fees in addition to the costs of suit, a demand letter should be sent 10 days before a complaint is filed in either of these courts. The Magistrate Court has limited the amount of attorney fees requested, depending on the amount of the initial claim (Exhibit A). Attorney fees in District Court vary between a flat fee, one-third of the amount recovered, or hourly. The initial process is similar to Small Claims, i.e. filing a complaint, and having it served on the debtor. The forms, however, are more lengthy and detailed (Exhibits B and C). Once the complaint is filed with the Court, the collector is responsible for having it served upon the debtor. The options provided in Small Claims Court do not exist in Magistrate or District Court. A private process server may be hired, or a county sheriff may serve civil documents. The cost for a sheriff to serve process in Idaho is $20 plus mileage. The debtor has 20 days to answer the Complaint after it has been served (see Summons form).
ANSWER FILED If the debtor files an Answer within the 20 days stated in the Summons, the case will proceed to trial. If you did not consult with an attorney previously, it would be advisable to consult an attorney at this juncture. The more formal rules in Magistrate and District Court can include discovery (interrogatories, admissions and document production), as well as depositions. At trial, witnesses may be called and sworn in. Depending on the complexity of the case, an attorney s expertise may be invaluable. NO ANSWER FILED If the debtor does not file an Answer, the collector may ask the Court for a default judgment. The default documents are prepared and filed with the Clerk (Exhibit D). No hearing is held on defaults the judge simply reviews the paperwork and if deemed appropriate, will sign the default judgment. It is important that once you receive the signed Default Judgment that it be recorded with the County Recorder s Office. This places an automatic lien on the real property of the debtor. If the debtor has personal property of value you may wish to file a general U.C.C. Statement with the Secretary of State. (http://www.sos.idaho.gov/online/ucc/uccsession.jsp?new=y). The cost for filing the lien is $3.00 plus the online transaction fee of $1.00. Execution Once a collector has obtained a judgment, the first effort to collect the debt is to obtain a Writ of Execution. Before preparing the Writ, it would be advisable to calculate the amount due. An electronic spreadsheet which calculates interest, tracks costs and payments makes this exercise easy (Exhibit E). There are several avenues to be taken to execute. 1. Personal property: to execute against personal property takes special handling. The sheriff requires the collector to pay a deposit toward the anticipated costs of seizing, hauling, and storing items of personal property. It would be wise to talk to the sheriff s office to determine these costs before a Writ is issued. 2. Real property: also takes special handling and is quite complicated. Again, it would be advisable to talk to the sheriff s office before taking this step. 3. Wages: a collector may request the court to allow continuous garnishment of wages if the debtor s employer is known. Once the Writ is delivered to the
sheriff and service accomplished, a percentage of the debtor s wages are held back to be paid towards the outstanding debt. Because it is a continuous execution, a collector need only sit back and wait for the sheriff to disburse the money, approximately 60 days after the sheriff receives the writ. 4. Bank Account: a collector may empty a debtor s bank account. The banks require a $5.00 processing fee, which must be sent with the remaining execution paperwork to the sheriff s office. 5. Tax Refund Garnishment: finally, a collector may execute against a debtor s tax refund. A processing fee of $10 is required by the State Controller s Office, which must be sent with the remaining paperwork to the sheriff s office. Depending on the type of execution, several documents will need to be prepared. Once a Writ of Execution is prepared, it is taken to the county clerk of court for issuance. After issuance, the packet is forwarded to the sheriff s office for service, along with any required fees (around $55) plus the special fees for bank or tax refund garnishments (Exhibits F-H). When the sheriff receives the forms, he must serve the execution within 60 days. Whether a bank account, wages, or tax refund, the third party (called a Garnishee ) must fill out a questionnaire as to whether the debtor has assets (money) that the Garnishee is holding on the debtor s behalf. If the Garnishee chooses not to answer the questionnaire, the collector may require the Garnishee to appear in court and explain to the judge why the Garnishee did not answer (Exhibit I). If the Garnishee fails to appear before the court and explain, the Garnishee is at risk of the collector obtaining a judgment against the Garnishee (Exhibit J). The collector need not compel the employer to appear. By statute, a collector may simply request the court enter default judgment against the employer. This process essentially begins a lawsuit within a lawsuit. The delays associated with this action should be considered carefully as part of the execution process. Not all assets of a debtor are subject to a judgment. Certain assets should not be taken. A good list of these types of assets is set forth in the notice that the sheriff has to provide the debtor. (See Notice of Exemption in Writ packet.) If a collector is unable to determine the assets of a debtor, and if an execution is returned by the sheriff unsatisfied, the collector may require the debtor to appear in court and answer questions (Exhibit K). This is called a Debtor s Exam. In Idaho, a debtor is not required to attend such an exam if he does not reside in the county where the suit is filed. When a debtor s exam is held, the debtor is sworn in by the presiding judge. At that point, the judge leaves the room (or asks you to use a conference room outside the courtroom) to ask the questions. If either party (collector or debtor) feels the other is
being untruthful or uncooperative, they may ask the judge to step in. Because the exam is not held in open court, the collector may consider using a recording device to record the exam, as long as that is allowed by the law of your state. If a debtor fails to appear at the debtor s exam, you may move the court to hold the debtor in contempt. The court will order a second hearing (which order must be served upon the debtor) for the debtor to appear and explain the reason for not appearing. Should the debtor fail to appear at the second hearing, the court will issue a Writ of Attachment for the debtor's arrest. The bond amount is typically set at the amount then owing on the judgment. Once the debtor is arrested, if a cash bond is posted, the collector may at the hearing request that cash bond be handed over as payment of the judgment (Exhibit L). Once the debt is paid, the collector files a Satisfaction of Judgment with the court (Exhibit M). A certified copy of the Satisfaction is recorded, at which time the collector can close the file.
Exhibit A: Attorney Fee Schedule
Business Name Address Telephone: Facsimile: Exhibit B: Complaint IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. COMPLAINT ON OPEN ACCOUNT I. This Court has jurisdiction pursuant to Idaho Code 1-2210, and Idaho Rule of Civil Procedure 82(c)(2), Idaho R. Civ. P., as the amount claimed is less than $10,000.00. II. Plaintiff is now and at all times relevant to this action has been a Municipal Corporation operating and existing pursuant to the laws of the State of Idaho. III. Defendant {defendant s name} is a resident of the City of Boise, Idaho and the owner and/or renter of certain real property in the City of Boise, Ada County, Idaho commonly known as: {street address}. IV. Pursuant to ordinances duly enacted, Plaintiff provided {type of services provided} services to the above-referenced real property. V. In the ordinary course of business prior to the filing of this Complaint, Plaintiff and Defendant have established an open account, reflecting the provision of services and payments. Complaint - 1
VI. The Defendant is indebted to Plaintiff in the principal sum of ${amount owed} for services provided the above-referenced real property through {date service provided through} together with interest thereon which amount will continue to increase until paid in full. VII. Defendant has not paid such sum, nor any part thereof, although demand for payment has been duly made. VIII. Plaintiff has retained the services of an attorney to prosecute this action on its behalf and is thus entitled to recover its reasonable attorney's fees incurred herein. WHEREFORE, Plaintiff prays for judgment as follows: PRAYER FOR RELIEF 1. For the principal sum of ${amount owed}, together with interest from {date referred}, through {end of month}, in the amount of ${interest amount}, and further interest accruing thereon until paid in full as provided by law. 2. That this Court order that Plaintiff be awarded its attorney's fees and costs incurred in this matter pursuant to Idaho R. Civ. P. 54(e)(4), or in the amount of ${attorney fee amount} if this matter is resolved by default. 3. If this matter is not resolved by default, that this Court order that Plaintiff be awarded its attorney's fees and costs incurred in this matter pursuant to Idaho Code 12-120, or other applicable law. 4. That this Court grant such other orders and decrees that as to this Court may seem equitable and just in this matter. DATED this day of, 20. Business Representative Complaint - 2
Exhibit C: Summons IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. SUMMONS NOTICE: YOU HAVE BEEN SUED BY THE ABOVE-NAMED PLAINTIFF. THE COURT MAY ENTER JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW. TO: {defendant name/address} You are hereby notified that in order to defend this lawsuit, an appropriate written response must be filed with the above designated court within 20 days after service of this Summons on you. If you fail to so respond the court may enter judgment against you as demanded by the plaintiff in the Complaint. A copy of the Complaint is served with this Summons. If you wish to resolve this matter informally with Plaintiff's counsel or wish to seek the advice or representation by your own attorney in this matter, you should do so promptly so that your written response, if any, may be filed in time and other legal rights protected. An appropriate written response requires compliance with Rule 10(a)(1) and other Idaho Rules of Civil Procedure and shall also include: 1. The title and number of this case. 2. If your response is an Answer to the Complaint, it must contain admissions or denials of the separate allegations of the Complaint and other defenses you may claim. 3. Your signature, mailing address and telephone number, or the signature, mailing address and telephone number of your attorney. 4. Proof of mailing or delivery of a copy of your response to plaintiff's attorney, as designated above. To determine whether you must pay a filing fee with your response, contact the Clerk of the abovenamed court. The nature of the claim against you is for charges and seeks recovery of the charges, interest, court costs and attorney's fees. WITNESS MY HAND AND THE SEAL of said District Court, this day of, 20. J. DAVID NAVARRO Clerk of the District Court By:
Exhibit D: Small Claims Court Packet Part I Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. {Case Number} MOTION FOR DEFAULT AND DEFAULT JUDGMENT COMES NOW the Plaintiff, by and through its attorney of record, {name of attorney}, and moves this Court for an order allowing default against Defendant, {defendant s name} upon the grounds and for the reason that said Defendant, after having been duly served with process on {date served} have failed and refused to answer or otherwise defend this action as required by the Idaho Rules of Civil Procedure 55(a)(1). This Motion is supported by the Affidavit in Support of Motion for Default and Default Judgment filed contemporaneously herewith, and all pleadings and records on file herein. DATED this day of, 20. By: Motion for Default and Default Judgment - 1
CERTIFICATE OF SERVICE I CERTIFY that on this day of, 20, I caused to be served a true and correct copy of the foregoing document on the below-listed interested parties by the method described: ERROR! REFERENCE SOURCE NOT FOUND. StreetAddress CityStateZIP U. S. Mail, Postage Prepaid Hand Delivery Overnight Mail Via Facsimile Motion For Default And Default Judgment - 2
Exhibit D: Small Claims Court Packet Part II Business Name Business Address Phone Fax IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. {Case Number} AFFIDAVIT IN SUPPORT OF MOTION FOR DEFAULT AND DEFAULT JUDGMENT STATE OF IDAHO ) ) County of Ada ), being first duly sworn upon oath, deposes and says as follows: 1. I am a representative for the Plaintiff, and as such have personal knowledge of the matters contained herein. 2. That Defendant, {Defendant s Name}, was served with the Summons and Complaint in this action on {date served}, in the manner provided for by the Idaho Rules of Civil Procedure. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit A. 3. Upon information and belief, based upon the records in my office, Defendant, {Defendant s Name} is neither an infant, incompetent, nor a member of the armed services of the United States of America. 4. Interest is calculated from {date of referral} through {today s date}, at {interest amount}% per annum. Affidavit in Support of Motion for Default and Default Judgment - 1
5. Defendants are indebted to Plaintiff as follows: Principal Debt: Interest @ 18% Annually Costs Payments Made by Defendant TOTAL JUDGMENT $ $ $ $ $ 6. The address most likely to give notice to the Defendant(s) is: {Street Address} {City, State, ZIP} 7. The Defendant, {Defendant s Name}, has failed to plead or otherwise defend this action as provided by the Idaho Rules of Civil Procedure and, therefore, the Court or Clerk is requested to enter default against these Defendant. 8. I have executed this Affidavit in accordance with Rule 55 of the Idaho Rules of Civil Procedure for the purpose of enabling City of Boise herein to obtain an entry of default and default judgment against Defendant, {Defendant s Name} herein for failure to answer the Plaintiff s Complaint. SUBSCRIBED AND SWORN to before me this 20, day of, NOTARY PUBLIC for Idaho My Commission Expires:_ Affidavit In Support Of Motion For Default And Default Judgment - 2
CERTIFICATE OF SERVICE I CERTIFY that on the day of, 20, interested parties by the method described: ERROR! REFERENCE SOURCE NOT FOUND. StreetAddress CityStateZIP U. S. Mail, Postage Prepaid Hand Delivery Overnight Mail Via Facsimile Affidavit In Support Of Motion For Default And Default Judgment - 3
Exhibit D: Small Claims Court Packet Part III Business Name Business Address Phone Fax IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, STATE OF IDAHO ) : ss County of Ada ) Plaintiff, Defendant. Case No. {Case Number} AFFIDAVIT OF NON-MILITARY SERVICE I,, being first duly sworn upon oath, depose and state: 1. I am the agent for the above-named Plaintiff, and make this affidavit of my own knowledge based upon my review of the collection file. 2. That the Defendant, {Defendant s Name}, is over the age of eighteen (18) years old, is mentally competent, and is not a member of the Armed Forces of the United States as defined by the Serviceman s Civil Relief Act. DATED this day of, 20. SUBSCRIBED AND SWORN to before me this day of, 20. Affidavit of Non-Military Service - 1 Notary Public for the State of Idaho My Commission expires:
Exhibit D: Small Claims Court Packet Part IV Business Name Business Address Phone Fax IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. {Case Number} MEMORANDUM AND AFFIDAVIT OF ATTORNEY FEES STATE OF IDAHO ) : ss County of Ada ) {Individual Name}, being first duly sworn upon oath, deposes and states: 1. That I am the attorney of record for the above-named Plaintiff, and that as such, I am informed as to the items charged in this Memorandum of Attorney Fees; 2. That I have read the Complaint filed in this action and know the contents thereof; 3. That the allegations therein contained are true to the best of my own personal information, knowledge, and belief; 4. That pursuant to the Complaint, regularly served upon the Defendant(s), and the Court being in receipt of the Affidavit of Service, there is now due and owing by the Defendant(s), to the Plaintiff on a debt set forth in said Complaint, the sum of ${current amount owing}. Memorandum And Affidavit Of Attorney Fees - 1
5. That the attorney fees are reasonable based upon those factors set forth in Idaho Rule of Civil Procedure 54(e)(3), including, but not limited to, the prevailing charges for like work. DATED this day of, 20. SUBSCRIBED AND SWORN TO before me this day of, 20. Notary Public for Idaho Commission Expires: Memorandum And Affidavit Of Attorney Fees - 2
Exhibit D: Small Claims Court Packet Part V Business Name Business Address Phone Fax IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. {Case Number} DEFAULT IN THIS ACTION, THE Defendant, {Defendant s Name}, having been regularly served with process, and having failed to appear and answer the Plaintiff s Complaint filed herein, and the time allowed by law for answering having expired, the default of the said Defendant in the premises is hereby duly entered and filed according to law. 20. WITNESS my hand and seal of said Court this day of, J. DAVID NAVARRO Clerk of the District Court BY: Deputy Clerk Default - 1
Exhibit D: Small Claims Court Packet Part VI Business Name Business Address Phone Fax IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. Case No. {Case Number} ORDER FOR DEFAULT AND DEFAULT JUDGMENT THIS MATTER came before the Court on Plaintiff s Complaint filed herein, and it appearing to the Court that Defendant, {Defendant s Name}, after having been duly served with process on {date defendant served} has failed and refused to answer or otherwise defend this action as required by the Idaho Rules of Civil Procedure, and this Court having considered the Affidavits in support hereof, and other pleadings, papers, and records on file herein, the Court finds that the allegations of Plaintiff s Complaint are true and that Plaintiff is entitled to judgment against the Defendant, {Defendant s Name}, as prayed for therein; NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the default of the Defendant, {Defendant s Name}, is hereby entered according to law. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Plaintiff have judgment against the Defendant, {Defendant s Name} as follows: Principal Debt: $ Order for Default and Default Judgment - 1
Costs Accrued $ Attorneys Fees $ TOTAL JUDGMENT $ upon which sums let execution issue. Interest shall accrue hereafter at the statutory interest rate. DATED this day of, 20. Magistrate Judge Order For Default And Default Judgment - 2
Exhibit E: Interest Worksheet Debtor Name: Department/Type: Date Referred: Amount/Service Fees: Case Number: Doe Sewer PRE-JUDGMENT Begin Payment Payment Interest Periodic Date Date Days Amount Rate Interest Balance 0-Jan-00 $0.00 0-Jan-00 7-Oct-08 39157 0.00 18.00 $0.00 $0.00 8-Oct-08 8-Oct-08 0 0.00 18.00 $0.00 $0.00 Sub-total 0.00 0.00 $0.00 ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= ======= Court Costs: 0 Certification: 0.00 Process Server: 0.00 Attorney Fees: 0.00 ======= ======= ======= ======= ======= ======= ======= ======= Total: 0.00 Judgment Amount Sought $0.00 POST-JUDGMENT Date of Judgment Judgment Amount 0.00 Annual Post Judgment Judgment Total Begin Payment Payment Interest Cost Credit Cost Period Credit Interest Credit Principal Judgment Date Date Days Amount Rate Incurred Costs Balance Interest Interest Balance Judgment Balance Balance 0.00 0.00 01/00/00 08/31/03 37865 0 6.00 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 09/01/03 01/18/05 506 0 6.00 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Subtotals: 0 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Total Credits: 0 0 YTD Service Charges: 0.00 0.00 = Balance Charges New Costs 0 Total Interest: 0.00 0.00 = Balance Interest New Interest 0.00 Total Costs: 0.00 0.00 = Balance Costs New Paymen 0.00 Attorney Fees: 0.00 0.00 = Balance Fees Total Due: 0.00 0.00
Exhibit F: Tax Refund Execution Part I Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, STATE OF IDAHO ) :ss County of Ada ) Plaintiff, Defendant. CASE NO. {Case Number} AFFIDAVIT OF INTEREST {Name of Affiant}, being first duly sworn upon oath, states as follows: 1. I am a representative of {name of business entity} and as such have personal knowledge of the matters contained herein. 2. Pursuant to Rule 69 of the Idaho Rules of Civil Procedure, post-judgment fees and costs have been incurred in the amount of ${amount of costs}. 3. That post-judgment interest has accrued at the legal rate of {rate of interest}% per annum to this date in the amount of ${amount of accrued interest to date}. 4. That all amounts due and owing are listed below. Post-Judgment Interest Post-Judgment Costs TOTAL $ $ $ Affidavit of Interest - 1
5. It is my information and belief that Defendant currently possesses moneys held by the Idaho State Controller on behalf of the Idaho State Tax Commission. SUBSCRIBED AND SWORN to before me this 20. day of, NOTARY PUBLIC for Idaho My Commission Expires: Affidavit Of Interest 2
Exhibit F: Tax Refund Execution Part II Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} WRIT OF EXECUTION TO: THE SHERIFF OF ADA COUNTY, STATE OF IDAHO, GREETINGS: WHEREAS, on {date of judgment}, the Plaintiff recovered a judgment in the aboveentitled Court, against the Defendant, {Defendant s Name}, as follows: Judgment Amount Post-Judgment Interest Post Judgment Costs Payments Made by Defendant TOTAL $ $ $ $ $ NOW, THEREFORE, You, the said Sheriff, pursuant to Idaho Code 11-103(a) and 11-202, are hereby required to satisfy said Judgment, with interest as aforesaid and accrued hereafter, and costs and accruing costs, out of the personal property of said Defendant, {Defendant s Name} judgment debtor(s), until released by the Sheriff at the written request of the judgment creditor or until the judgment is satisfied. In particular, you are requested to seize Writ of Execution - 1
any income tax refund owing Defendant held by the Idaho State Controller on behalf of the Idaho State Tax Commission. WITNESS the Honorable {Name of Judge}, Judge of the said Fourth Judicial District of the State of Idaho, in and for the County of Ada, this day of, 20. ATTEST my hand and the seal of said Court, the day and year last above written. J. DAVID NAVARRO, Clerk of the Court Deputy Clerk Writ Of Execution 2
Exhibit F: Tax Refund Execution Part III Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, STATE OF IDAHO ) :ss County of Ada ) Plaintiff, Defendant. CASE NO. {Case Number} NOTICE OF GARNISHMENT To: THE IDAHO STATE TAX COMMISSION, C/O THE IDAHO STATE CONTROLLER YOU ARE HEREBY NOTIFIED, that all debts owing by you to the above-named Defendant, whose last known address is {address of debtor}, and social security number is {SSN} and all credits or other personal property in your possession or under your control, belonging to the said Defendant, are attached in the pursuance of a Writ of Execution of which the annexed are a true copy. You may discharge yourself by paying or delivering to me all debts owing by you to the Defendant, or a portion thereof sufficiently to discharge the claim of the Plaintiff, or any or all Notice of Garnishment - 1
money of the Defendant in your hands to a similar amount, taking my receipt therefore, which shall discharge you from any and all liability to the extent of such payment. If you have in your possession or under your control any credits of other personal property belonging to the Defendant at the time of the service upon you of a copy of this Writ and Notice, unless such property is delivered up or transferred, or such debts are paid to me, you are liable to the Plaintiff for the amount of such credits, property, or debts, or sufficient thereof to satisfy claim of Plaintiff, including costs, until the Writ is discharged or any judgment recovered by Plaintiff is satisfied. You are required to make full and true answer, under an oath, to the following interrogatories and to file the same in this case within five (5) days after the service upon you of this Notice. Should you fail to do so, the Plaintiff may take judgment against you by default, or the Court may, upon Notice, compel you to answer by attachment. DATED:_ Sheriff Deputy Notice Of Garnishment - 2
Exhibit F: Tax Refund Execution Part IV Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} NOTICE OF EXEMPTION IMPORTANT LEGAL NOTICE/NOTICIA LEGALIMPORTANTE MONEY/PERSONAL PROPERTY BELONGING TO YOU MAY HAVE BEEN TAKEN OR HELD IN ORDER TO SATISFY A COURT JUDGMENT. YOU MAY BE ABLE TO GET YOUR MONEY/PROPERTY BACK SO READ THIS NOTICE CAREFULLY. SI SOLAMENTE HABLA ESPANOL PUEDE OBTENER UNA FORMA EN ESPANOL EN EL DEPARTMENTO DEL SHERIFE. The enclosed writ of execution and/or notice of garnishment has directed the sheriff to take custody of levying on your money and/or personal property in order to satisfy a court judgment. The sheriff has levied on your money and/or personal property. You have FOURTEEN (14) DAYS after the date of mailing or personal service of these documents to file a claim of exemption with the sheriff. An exemption from levy entitles you to obtain the release of you money and personal property. The following is a partial list of money and personal property that may be exempt from levy. EXEMPTIONS ARE PROVIDED BY IDAHO AND FEDERAL LAW AND CAN BE FOUND IN THE IDAHO CODE AND IN THE UNITED STATES CODE. MOST OF THE EXEMPTIONS PROVIDED BY THE STATE ARE CONTAINED IN CHAPTER 6, TITLE 11, Notice of Exemption - 1
IDAHO CODE. GOVERNMENTAL BENEFITS SUCH AS SOCIAL SECURITY, SSI, VETERANS, RAILROAD RETIREMENT, MILITARY AND WELFARE ARE EXEMPT FROM LEVY IN MOST CASES UNDER FEDERAL LAW. This list may not be complete and may not include all exemptions that apply in your case because of periodic changes in the law. Additionally, some of the exemptions may not apply in full or under all circumstances. There may be special requirements for child support. You or your attorney should read the exemption statues which apply to you. If you believe the money or personal property that are being levied upon are exempt, you should immediately file a claim of exemption. If you fail to make a timely claim of exemption, the sheriff will release money to the plaintiff, or the property may be sold at an execution sale, perhaps at a price substantially below its value, and you may have to bring further court action to recover the money and property. The sheriff cannot give you legal advice. Therefore, if you have any questions concerning your rights in this action, you should consult an attorney as soon as possible. You may contact the nearest office of Idaho Legal Aid Services, Inc., to inquire if you are eligible for their assistance. SOME EXEMPTIONS TO WHICH YOU MAY BE ENTITLED Type of Money and Property 1. Alimony, support, maintenance (money or property) 2. Appliances (household ($500 per item, up to $4,000) 3. Annuity contract payments 4. Bodily injury and wrongful death awards* 5. Books (professional) up to $1,000 6. Burial plots 7. Child support payments* 8. Disability or illness benefits* 9. Furnishings (household) ($500 per item, up to $4,000 gross) 10. Health aids 11. Homestead, house, mobile home, and related structures 12. Jewelry (up to $250) 13. Life insurance benefits payable to spouse or dependent * 14. Medical and/or hospital benefits 15. Military retirement and survivors benefits 16. Motor vehicle: car, truck, motorcycle with a value of up to $1,500 per person 17. Pension: stock bonus, profit sharing annuity, or similar plans 18. Personal property: (%00 per item, up to $4,000 gross) (furnishings, appliances, one firearm, pets, musical instruments, books, clothes, family portraits and heirlooms) Notice Of Exemption 2
19. Public assistance: federal, state, or local including: Aid to Aged, Blind and Disabled (AABBD); Aid to Dependent Children (AFDC); Aid to Permanently and Totally Disabled (APTD) 20. Public Employees Benefits including Federal Civil Service Retirement, Idaho Retirement and Disability 21. Railroad Retirement Benefits 22. Retirement, pension or profit sharing plan qualified by IRS 23. Social Security Disability and Retirement Benefits 24. SSI (Supplemental Security Insurance Benefits) 25. Tools of trade and implements up to $1,000 26. Unemployment benefits 27. Veterans benefits and insurance 28. Wages or salary: Consumer debts primarily for personal or household purposes: exemption is 40 times the federal minimum wage or 25% of disposable income, whichever is greater. Non consumer debts: exemption is 30 times the federal minimum wage or 25% of disposable income, whichever is greater. 29. Worker s compensation *To the extent reasonably necessary for support of family and if not commingled with other funds Notice Of Exemption 3
INSTRUCTIONS TO DEFENDANTS AND THIRD PARTIES In order to claim an exemption from execution and garnishment under Idaho and federal law, you, the defendant, judgment debtor, or a third party, holding or known to have an interest in the money and/or personal property must: 1. DELIVER OR MAIL A CLAIM OR EXEMPTION OT THE SHERIFF WHO LEVIED UPON YOUR MONEY AND/OR PERSONAL PROPERTY AT (SHERIFF S STREET ADDRESS), WITHIN FOURTEEN (14) DAYS AFTER MAILING OR PERSONAL SERVICE OF THESE INSTRUCTIONS, NOTICE OF EXEMPTIONS AND FORM FOR FILING A CLAIM OF EXEMPTION. IF YOU MAIL A CLAIM OR EXEMPTION, IT MUST BE RECEIVED BY THE SHERIFF WITHIN THE FOURTEEN (14) DAYS PERIOD. 2. The sheriff has to notify the plaintiff of judgment creditor within one (1) business day, excluding weekends and holidays, that you filed a claim of exemption. The judgment creditor has five (5) business days, excluding weekends and holidays, after the date notice was provided that a claim of exemption was filed with the sheriff, to file a motion with the court contesting the claim of exemption. 3. If the judgment creditor notifies the sheriff that he will not object to the claim of exemption or does not file a motion with the court contenting the claim of exemption the sheriff will immediately return the money and/or personal property or notify the bank or depository institution to release the money and/or personal property which ahs been levied. 4. IF THE JUDGMENT CREDITOR DOES FILE A MOTION WITH THE COURT CONTESTING THE CLAIM OF EXEMPTION, YOU, THE JUDGMENT DEBTOR OR ANY INTERESTED THIRD PARTY, WILL RECEIVE A COPY OF THE MOTION AND NOTICE OF HEARING. A HEARING WILL BE HELD WITHIN NOT LESS THAN FIVE (5) NOR MORE THAN TWELVE (12) DAYS AFTER THE FILING DATE OF THE MOTION. YOU SHOULD BE PREPARED TO EXPLAIN THE GROUNDS FOR CLAIMING THE EXEMPTION IN COURT ON THE DATE AND TIME SET FOR THE HEARING. YOU SHOULD BRING WHATEVER DOCUMENTS YOU HAVE TO SUPPORT YOUR CLAIM. 5. This is a notice, not legal advice. If you have any questions concerning your rights in this action, you should contact an attorney as soon as possible. If you are low income and cannot afford an attorney you may contact the nearest office of Idaho Legal Aid Service, Inc. to inquire if they can assist you. Notice Of Exemption 4
Exhibit F: Tax Refund Execution Part V Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} CLAIM OF EXEMPTION 1. I claim an exemption from levy for the following described money and/or property: a. Money, including money in a bank account, which was paid to me or my family as: Public assistance of any kind. Social Security or SSI Worker s compensation Unemployment benefits Child support Retirement, pension, or profit sharing benefits Military or veteran s benefits Life insurance or other insurance Disability, illness, medical or hospital benefits Alimony, support or maintenance Annuity contract benefits Bodily injury or wrongful death awards Other money, (describe) Wages (DO NOT CHECK THIS BOX UNTIL: You have first talked to your employer to see if he correctly calculated your exemption according to the formula under item #28 on the form entitled: SOME EXEMPTIONS TO WHICH YOU MAY BE ENTITLED. Then check this box only if you believe your employer s calculation is incorrect.) b. Property: Professional books Burial plots Claim of Exemption - 1
Health aids Homestead, house, mobile homes and related structures Jewelry Car, truck or motorcycle Tools and implements Appliances, furnishing, firearms, pets, musical instruments, books, clothes, family portraits and heirlooms Other property (describe) Defendant or Representative Address and Phone Number RETURN TO: ADA COUNTY SHERIFF S OFFICE 7200 BARRISTER BOISE, ID 83704 Claim Of Exemption Page 2
Exhibit F: Tax Refund Execution Part VI Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} ANSWER OF GARNISHEE SHERIFF OF ADA COUNTY, IDAHO To: THE IDAHO STATE TAX COMMISSION, C/O THE IDAHO STATE CONTROLLER TAKE NOTICE that all money, wages, goods, credits, effects, rents due and owing and all other personal property in your possession or under your control, belonging to the defendant named in the attached copy of the Writ of Execution is levied upon and you are hereby notified not to pay or transfer the same to anyone but the Office of the Sheriff. Wages are subject to maximum garnishment provisions of Title III of the Consumer Credit Protective Act (15 USC 1673). PLEASE ANSWER THE FOLLOWING INTERROGATORIES. IDAHO CODE 8-512 provides that the garnishee shall make a full and true answer to interrogatories within five (5) days or the plaintiff may take judgment against him by default. 1. IS THE DEFENDANT YOUR EMPLOYEE? Answer of Garnishee - 1
FULL TIME PART-TIME CONTRACT 2. WHAT IS HIS AVERAGE TAKE HOME PAY? WHEN PAID? 3. DO YOU OWE THE DEFENDANT ANY MONEY? YES NO IF SO, HOW MUCH ( ) AND WHEN DID IT BECOME DUE( )? IF NOT YET DUE, WHEN WILL IT BECOME DUE? 4. HAS DEFENDANT ASSIGNED HIS WAGES? YES NO WHEN WAS THE ASSIGNMENT MADE? TO WHOM WAS THE ASSIGNMENT MADE? 5. ARE YOU HONORING ANY OTHER GARNISHMENTS? YES NO IF SO, WHAT STATE AND COUNTY SERVED THE GARNISHMENT? 6. IF THE DEFENDANT NO LONGER WORKS FOR YOU, WHEN DID HIS EMPLOYMENT END? WHO DOES HE WORK FOR NOW? GARNISHEE TITLE DATE Answer Of Garnishee Page 2
Exhibit F: Tax Refund Execution Part VII DELIVER THESE INSTRUCTIONS TO THE ADA COUNTY SHERIFF S OFFICE OR MAIL TO 7200 BARRISTER, BOISE, ID 83704 PHONE: 377-6716 **The Sheriff s Office Requires $40.00 Advance Fees** (This Sum Will Be Added To The Judgment) INSTRUCTION TO THE SHERIFF OF ADA COUNTY DATE (PLAINTIFF) I HAVE JUDGMENT AGAINST (DEFENDANT) HIS/HER ADDRESS IS HE/SHE WORKS AT: N/A EMPLOYER S ADDRESS: N/A HE/SHE BANKS AT: N/A SOC. SEC. NUMBER: THE SHERIFF S OFFICE MAY REQUIRE UP TO $500.00 ADDITIONAL ADVANCE FEES BEFORE LEVYING ON PERSONAL PROPERTY SERVE CONTINUING GARNISHMENT TO EMPLOYER FOR WAGES SERVE CONTINUING GARNISHMENT ON BANK ACCOUNT SERVE GARNISHMENT ONE TIME TO EMPLOYER FOR WAGES SERVE ON STATE CONTROLLER FOR INCOME TAX REFUND LEVY OTHER INSTRUCTIONS NOT COVERED ABOVE: YOU ARE INSTRUCTED TO SATISFY MY JUDGMENT BY LEVYING UPON ANY PERSONAL PROPERTY SUBJECT TO EXECUTION, AND PARTICULARLY THE FOLLOWING, WHICH I HAVE CHECKED ON FOR LIENS AND FIND THEM SUBJECT TO EXECUTION. (Describe by giving make, color, license number, model number, etc.) Please make your return to the Business Name, Address.
Exhibit G: Wage Garnishment Part I Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} MOTION FOR CONTINUING WRIT OF GARNISHMENT Plaintiff, by and through its counsel of record, hereby applies for a Writ of Continuing Garnishment against the personal property of the Defendant, {Defendant s Name}, directing the Sheriff of Ada County to maintain a continuous garnishment pursuant to Idaho Code 8-509(b) and 11-104 directed to Defendant, {Defendant s Name} s place of employment, {Employer Name and Address}. Motion For Continuing Writ Of Garnishment 1
Plaintiff s application is based upon the foregoing statutes and the Affidavit of {name of individual} in support thereof. DATED this day of, 20. Motion For Continuing Writ Of Garnishment 2
Exhibit G: Wage Garnishment Part II Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} AFFIDAVIT OF INTEREST STATE OF IDAHO ) ) County of Ada ) {Name of individual}, being first duly sworn upon oath, states as follows: 1. I am a representative of {name of business entity} and as such have personal knowledge of the matters contained herein. 2. Pursuant to Rule 69 of the Idaho Rules of Civil Procedure, post-judgment costs have been incurred in the amount of ${post-judgment costs}. 3. That post-judgment interest has accrued at the legal rate of {statutory interest rate}% per annum to this date in the amount of ${post-judgment interest}. 4. That all amounts due and owing are listed below. Post-Judgment Interest Post-Judgment Costs TOTAL $ $ $ Affidavit of Interest 1
5. It is my information and belief that Defendant, {Defendant s Name} currently possesses moneys held by {Name & Address of Employer}. SUBSCRIBED AND SWORN to before me this 20. day of, NOTARY PUBLIC for Idaho My Commission Expires: Affidavit Of Interest 2
Exhibit G: Wage Garnishment Part III Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} ORDER FOR CONTINUING WRIT OF GARNISHMENT THIS MATTER, having come before the Court on Plaintiff s Motion and Affidavit for Continuing Writ of Execution and Garnishment of wages, the Court having reviewed the motion and affidavit, and good cause appearing therefore, IT IS HEREBY ORDERED that a continuing Writ of Execution For Garnishment of wages be issued for Defendant, {Name of Defendant} s employer, {Name & Address of Employer}. DATED this day of, 20. MAGISTRATE JUDGE Order For Continuing Writ Of Garnishment 1
Exhibit G: Wage Garnishment Part IV Business Name Address Telephone: Facsimile: IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA {PLAINTIFF NAME}, v. {DEFENDANT NAME}, Plaintiff, Defendant. CASE NO. {Case Number} WRIT OF EXECUTION AND CONTINUING GARNISHMENT TO: THE SHERIFF OF ADA COUNTY, STATE OF IDAHO, GREETINGS: WHEREAS, on {date of judgment}, the Plaintiff recovered a judgment in the aboveentitled Court, against the Defendant, {Defendant s Name}, as follows: Judgment Amount Post-Judgment Interest Post Judgment Costs Payments Made by Defendant TOTAL $ $ $ $ $ NOW, THEREFORE, You, the said Sheriff, pursuant to Idaho Code 8-509(b) and 11-103, are hereby required to satisfy said Judgment, with interest as aforesaid, and costs and accruing costs, out of the personal property of said Defendant, {Defendant s Name}, judgment debtor(s), by maintaining a continuous garnishment against the earnings of Defendant, {Defendant s Name} judgment debtor(s), by maintaining a continuous garnishment against the earnings of Defendant as they become due, withhold the non-exempt portions of earnings at each Writ Of Execution And Continuing Garnishment 1
future succeeding earnings disbursement interval until released by the Sheriff at the written request of the judgment creditor or until the judgment is satisfied, provided that you are to make interim returns on such continuous execution or garnishment by filing the same at intervals not to exceed fourteen (14) days whenever the amount collected in the fourteen (14) day period is at least equal to Fifty Dollars ($50.00), but in any event, interim returns on such continuous garnishment shall be filed at intervals not to exceed thirty (30) days. WITNESS the Honorable {Name of Judge}, Judge of the said Fourth Judicial District of the State of Idaho, in and for the County of Ada, this day of, 20. ATTEST my hand and the seal of said Court, the day and year last above written. J. DAVID NAVARRO, Clerk of the Court Deputy Clerk Writ Of Execution And Continuing Garnishment - 2