Attorney General Peter Kilmartin
In a civil case, the decision by the court as to who wins (and who loses) is called the judgment. See D.C.R. 54(a)( formal disposition of a claim by the court ) If the plantiff has obtained a money judgment, he must follow a set of procedures to collect that money. The role of the constable is critical in these matters.
A. WRIT OF EXECUTION
Unless the court directs otherwise, a money judgment is enforced by a writ of execution. D.C.R. 69(a).
DEFINITION: Writ of Execution. Formal process issued by court generally evidencing the debt of the defendant to the plaintiff and commanding the officer to take the property of the defendant in satisfaction of the debt. BLACK'S LAW DICTIONARY, 510 (5th ed. 1979).
The form of the writ is set out in R.I. Gen. Laws § 9-25-8.
- WHEN ISSUED
A writ may be issued at the request of the moving party, but not before 48 hours after the entry of judgment. R.I. Gen. Laws § 9-25-2. No hearing is required for a post-judgment attachment. R.I. Gen. Laws § 10-5-2(c).
- DURATION OF LIFE
Unless otherwise ordered, an execution is returnable to court one year after its date of issuance. R.I. Gen. Laws § 9-25-21.
- MANNER OF EXECUTION: IN GENERAL
A writ is served by following its mandates. R.I. Gen. Laws § 9-26-2. The basic order in R.I. Gen. Laws § 9-25-8 is to levy the sum of the judgment and to pay it over to the winning party.
DEFINITION: Levy. To levy an execution; i.e., to levy or collect a sum of money on an execution. BLACK'S LAW DICIONARY, 816 (5th ed. 1979)
- MANNER OF EXECUTION: REAL ESTATE
Levy on real estate is made by filing a copy of the execution with the recorder of deeds in the city or town where the real estate is located. R.I. Gen. Laws § 9-26-14 and § 9-26-15 . The property must be descibed either in the execution or in a description annexed thereto. Id. The levy can either be on a whole interest in real estate or any interest therein. Id. The officer must pay a 50 cent filing fee for each execution. R.I. Gen. Laws § 9-26-14.
If the levy by filing does not result in the satisfaction of the judgment, the constable can hold a sale. R.I. Gen. Laws § 9-26-16. It cannot beheld until three months after the date of the levy; notice must be given at least once a week during the three weeks prior to the sale; the advertisement must be published in a public newspaper in the county where the real estate lives if there are none then it can be published in a Providence Daily newspaper. If no person redeems the real estate, it (or as much of the real estate as is necessary) can be sold at auction. R.I. Gen. Laws § 9-26-16
The constable can, for good cause, adjourn the sale but notice must then be given at least one week before the new sale date. R.I. Gen. Laws § 9-26-17. The sale can be held even after the return date on the execution (usually, one year after issuance) has passed. R.I. Gen. Laws § 9-26-18.
The constable shall give a deed, which will convey all the estate, right and interest which the debtor held at the time of the levy. R.I. Gen. Laws § 9-26-16. The deed will follow a form contained in R.I. Gen. Laws § 9-26-19. Surplus proceeds, after satisfying the judgment, costs and charges, shall be deposited with the General Treasurer for the owner thereof. R.I. Gen. Laws § 9-26-16.
- MANNER OF EXECUTION: PERSONAL PROPERTY
If the constable levies upon goods or chattels and seizes them they must be kept in the officer's possession; an advertisement must be placed for ten days before any sale. R.I. Gen. Laws § 9-26-12. Before such sale the owner may pay the money due together with any costs accrued and regain his goods. R.I. Gen. Laws § 9-26-12.
However, if the goods seized are perishable in nature the defendant must be immediately notified by the constable. The constable may then get an order from the court which issued the execution to sell the goods (in a manner which the court shall specify.) The party can also obtain such an order. R.I. Gen. Laws § 9-26-12.
If the goods are not redeemed by the owner and not subject to a special sale order, they must be sold at public auction to the highest bidder; any surplus shall be delivered to the owner. R.I. Gen. Laws § 9-26-13.
- MANNER OF EXECUTION: STOCK
Share of stock can also be levied upon. See R.I. Gen. Laws § 9-26-22 and § 9-26-24. The corporate official who must be served depends on the type of corporation. If the corporation is a bank, the levy is by serving a copy of the execution on the cashier; if the corporation is an insurance company, by serving a copy of the execution on the president or secretary; any other corporation by serving the treasurer or any person performing the function of treasurer. If it is a foreign corporation, by serving the clerk of agent or attorney authorized to accept service. R.I. Gen. Laws § 9-26-22. The constable may advertise for sale and give deeds of sale. See also R.I. Gen. Laws § 9-26-23 and 6A-8-317.
- TRUSTEE PROCESS
DEFINITION: Trustee Process. The name given, in certain new England states, to the process of garnishment or foreign attachment ñ BLACKíS LAW DICTIONARY, 1357 (5th ed. 1979) (NOTE: Foreign attachment is the seizure of the goods of the debtor which are in the hands of a third person).
- Trustee Process Non-Wages
The procedure is laid out in Rule 69(b)(2):
(2) On the day of service of a post-judgment writ of trustee process upon a garnishee, other then a writ attaching wages, or a writ against a corporate business entity judgment debtor, the plaintiff shall mail to the court and to the defendant at the last known address a copy of the writ of trustee process and a notice thereof (substantially in the form as set forth in the appendix) containing a date for hearing before the court of any claim for exemption which the defendant may have under federal or state law. The date for the hearing shall not be less than five (5) nor more than nine (9) days after the day of mailing of the notice.
Trustee process is served in the following manner:
Whenever a writ shall be command the attachment of the defendant's personal estate in the hands of any person, co-partnership or corporation, as trustee, it shall be served by leaving an attested copy thereof, having endorsed thereon the date and time of day of the service, with the person or some member of the co-partnership named in the writ as trustee, or at the usual place of business of such person or co-partnership with some person there employed; or if the trustee? shall be a bank, with the cashier, treasurer, or secretary thereof; and if any other corporation, it shall be served by leaving an attested copy thereof, having endorsed thereon the date and time of such service, with the treasurer thereof, or the person executing the duties of treasurer thereof, or with the attorney of the corporation appointed with authority to accept service of process against the corporation in this state, or with any other officer thereof, or with the agent or superintendent thereof, or at the office of such corporation with some person there employed, and tender to the person upon whom service is made the sum of two dollars ($2.00) and his traveling fee as witness in the superior court, and the sum of one dollar ($1.00) and like traveling fee if the writ is returnable in any other court; and the officer shall also serve the defendant in accordance with applicable procedural rules. R.I. Gen. Laws § 10-5-19.
Garnishment is a form of attachment used to secure the wages or salary of a defendant. It is a kind of trustee process, since the object is a third party, the employer. The procedure is laid out in Rules 69(c):
(c) Attachment of Wages After Judgment. A writ of attachment to be served as a writ of garnishment of wages after the plaintiffís claim has been reduced to judgment in any civil or small claims action shall be issued, in the same action, only upon motion and notice to the defendant and an opportunity to be heard thereon. The notice shall be substantially in the form set forth in the appendix (Notice and Motion to Attach Wages) and shall contain the date of the hearing, which shall be not less than ten(10) nor more than twenty-five (25) days after the date of the mailing of the notice. No wage attachment shall be served upon an employer until after the date of the hearing. Said motion shall be deemed to be granted without prejudice as a matter of course and shall not be placed upon the motion calendar unless objection thereto is served and filed at least two (2) days before the time specified for its hearing. However, a debtorís failure to object to said motion shall not be deemed as a waiver or any statutory exemptions available to said debtor, and a debtor may move at any time to amend or vacate an order of attachment. The granting of said motion or vacate an order of attachment. The granting of said motion shall relate only to current and identified wages, and recovery in post-judgment process shall be limited to the amount of the judgment plus actual costs expended and post-judgment statutory interest. If, after the time set for hearing, the motion is granted, then a writ of attachment may be served upon the employer, along with a completed copy of a notice to an employer (substantially as in the form as set forth in the appendix). A writ of attachment so issued shall expire without prejudice unless served upon the employer within forty-five (45) days of its issuance, and no subsequent writ of attachment shall be issued in the same action without notice to the defendant and an opportunity for a hearing as provided herein.
The notice to the defendant can be served by mail. The notice and the writ to the employer must be served by a constable.
There are limitations on garnishment, as set forth in R.I. Gen. Laws § 10-5-8:
ìGarnishment of wages restricted to amounts not exempt ñ Child support to have priority. ñ (a) Any writ of attachment, served as a writ of garnishment for the attachment of the personal estate of the defendant in the hand and possession of any employer of the defendant, shall be effective to attach so much only of such personal estate consisting of the salary or wages due and payable to the defendant, or to become in the future due and payable to the defendant, as is in excess of the amount of the defendant's salary or wages exempt by law from attachment. And the garnishee, being the defendant's employer, shall be required to make affidavit and shall be held liable for the defendant's personal estate consisting of the salary or wages due and payable to the defendant or to become in the future due and payable to the defendant only in respect of the excess amount exempt from attachment. Any writ of garnishment served under the provisions of this section shall state the judgment amount, and the employer shall withhold sums not exempt by law until the amount of withholding equals the amount of the judgment. The employer shall be entitled to the sum of five dollars ($5.00), payable directly from the employee to the employer, for each writ of garnishment served upon the employer regarding any employee.î
The federal limitation is $100.50 for take-home amounts not greater than $134.00. For amounts of take-home greater than $134.00, the employer shall withhold 25%.
Once the notice and writ are served, the employer has to render an account in writing. R.I. Gen. Laws § 10-17-2 R.I. Gen. Laws § 10-5-8 and 10-17-3 require it to be by affidavit, sworn under oath). A copy must be sent to the court and to plaintiffís attorney. R.I. Gen. Law § 10-17-3. The first account must be filed within twenty (20) days. R.I. Gen. Laws § 10-17-4(a). Accounts will be made monthly until, the full amount has been collected, the defendant is no longer employed by the garnishee, or plaintiff has relieved garnishee from the burden. R.I. Gen. Laws § 10-17-4(b). The person who files the answer is subject to call and cross-examination. R.I. Gen. Laws § 10-17-6(a). The witness is entitled to a fee of three dollars ($3.00) and lawful mileage R.I. Gen. Laws § 10-17-6(b).
The court can order the transfer of the funds to plaintiff; this is called the charge to the garnishee. R.I. Gen. Laws § 10-17-7. This cannot be done more than once in a three month period.
- EXEMPTION FROM ATTACHMENT
The following are exempt from attachment:
- The necessary wearing apparel of a debtor or of his family, if he has a family.
- The working tools of a debtor necessary in his usual occupation, not exceeding in the value the sum of five hundred dollars ($500), and the professional library of any professional man in actual practice.
- The household furniture and family stores of a housekeeper in the whole, including beds and beddings, not exceeding in value the sum of one thousand dollars ($1,000).
- The bibles, school books, and other books in use in the family, not exceeding in value the sum of three hundred dollars ($300).
- The debtorís interest in one (1) lot or right of burial, as the case may be, in any cemetery.
- Wages due or accruing to any seaman.
- Debts secured by bills of exchange or negotiable promissory notes.
- The entire salary or wages of any debtor due or payable from any director of social welfare or public welfare or from any charitable corporation, or from any person or corporation engaged in the disbursement or administration of any public charitable fund or money, whenever such salaries or wages are to be paid or supplied, directly or indirectly, from any fun or money appropriated or contributed for relief of the poor or in aid of unemployment, and the debtor is the object of such relief or aid.
- The entire wages or salary of any debtor due or payable from any employer, where the debtor has been the object of relief from any state, federal, or municipal corporation or agency, for a period of one (1) year from and after the time when said debtor ceases to be the object of such relief.
- The salary or wages due or payable to any other debtor, not exceeding the sum of fifty dollars ($50.00).
- The salary and wages of the wife and of the minor children of any debtor.
- Such other property, real, personal, or mixed, in possession or actions as is or shall be exempted from attachment and execution, either permanently or temporarily, by general or special acts, charters or incorporation, or by police of the law. R.I. Gen. Laws § 9-26-4.
The omnibus clause then (10) makes it clear that other exceptions are recognized. For example:
- The minimum amount necessary to hold membership in a consumers co-operative, but not to exceed fifty dollars ($50.00). R.I. Gen. Laws § 7-8-25.
- The assets of a delinquent insurer. R.I. Gen. Laws § 27-14-16.
- Worker's compensation benefits (unless the attachment is in favor of the Department of Employment Security or the Department of Human Services). R.I. Gen. Laws § 28-33-27.
- Temporary disability benefits. R.I. Gen. Laws § 28-41-32.
- Pay for service in the militia. R.I. Gen. Laws § 30-7-9.
- The property of the redevelopment and housing authority.
- Police and fire pensions. R.I. Gen. Laws § 42-6-5.
DEFINITION: Citation. A writ issued out of a court of competent jurisdiction, commanding a person therein named to appear on a day named and do something therein mentioned, or show cause why he should not ñ BLACKíS LAW DICTIONARY, 221 (5th ed. 1979).
If an execution has been unsatisfied, and there were no assets to seize, the plaintiff can proceed by way of supplementary proceedings. Upon application by judgment creditor (whose judgment is unsatisfied in whole or in part), a clerk or a judge will issue a citation to the judgment creditor to appear at a certain time before the court to show cause why an examination into his circumstances should not be made and a decree entered ordering payment on an installment basis. R.I. Gen. Laws § 9-28-3.
- SERVICE OF THE CITATION
A citation is served by a constable by delivering a copy to the debtor or by leaving a copy at the debtorís last and usual place of abode with some person living there at least six (6) says before the return day. Id. If the debtor fails to appear then a body attachment may be issued. R.I. Gen. Laws § 9-28-4.
- CITATION TO SHOW CAUSE FOR NONCOMPLIANCE
If the defendant appears for the hearing and an installment payment schedule is ordered, but it is not met, the judgment creditor may bring the defendant in again to determine if he should be deemed in contempt. The procedure is another kind of citation, a citation to show cause for noncompliance with court decree. R.I. Gen. Laws § 9-28-6.
- SERVICE OF THE CITATION TO SHOW CAUSE
There is no provision in R.I. Gen. Laws § 9-28-6 concerning the proper manner of delivery. Therefore, the procedure for the service of other citations may be followed.
- BODY ATTACHMENT
If the defendant does not appear pursuant to either form of citation, a body attachment may issue pursuant to R.I. Gen. Laws § 9-17-7.
There are certain exemptions from body attachment.
- Election Day, the day before, the day after. R.I. Gen Laws § 10-10-5.
- Those in military service. R.I. Gen. Laws § 30-7-2.
- Someone who has already been arrested and released on the same attachment. R.I. Gen. Laws § 9-25-22.