HD30 - The Duties of Sheriffs in Executing Judgments and Attaching Property

  • Published: 1989
  • Author: General Assembly and Committee on District Courts
  • Enabling Authority: House Joint Resolution 144 (Regular Session, 1988)

Executive Summary:
House Joint Resolution No. 144 requested the Committee on District Courts to identify potential problems needing clarification in the statutory provisions concerning the duties of sheriffs in handling pre-judgment attachments and post-judgment garnishments and executions.

LEGISLATIVE REQUEST

The study was requested by the General Assembly because:

1. Each year Virginia's sheriffs and their deputies serve thousands of garnishments and levies, or seize property pursuant to pre-trial or post-trial civil process;

2. These sheriffs and their deputies are not immune from suit in the performance of these services and may be held liable for damages In the event of wrongful handling of a garnishment, levy or seizure in connection with a civil suit;

3. Numerous federal court case decisions have changed substantial portions of the procedures used in handling such garnishments, levies and seizures;

4. The existing statutory provisions regarding sheriffs' duties are scattered throughout the Code of Virginia, frequently written in archaic language, and often have gaps in their directives to sheriffs on the details of handling civil process;

5. Virginia case law interpreting these provisions are comparatively rare in modern times, with many of the controlling cases dating back over one hundred years; and

6. While some efforts have been made to conform Virginia's statutes to requirements of federal case decisions, there has been no comprehensive review of these statutes to determine what changes are needed to create clear statutory direction for sheriffs and their deputies to follow in seizures and handling certain civil processes.

SYNOPSIS OF RECOMMENDATIONS

A review of the statutes and case law affecting the duties of sheriffs in executing judgments and attaching property indicates that the following changes would be helpful to enhance clarity and reduce the risk of liability:

1. Amend §§ 8.01-466 and 16.1-98 to require (a) a written application for a writ of fieri facias (fi.fa.), and (b) to authorize judgment creditors to deliver writs of fi.fa. to the sheriff in accordance with existing practice.

2. Amend §§ 8.01-365, 8.01-367, 8.01-474 and 8.01-480 so as to require the taking of an indemnity bond before the sheriff may proceed to execute a writ of fi.fa.

3. Harmonize the provisions for an action to try title under §§ 16.1-119 and 8.0 1-365.

4. Cross-reference under § 8.01-526 the provisions restricting the taking of forthcoming bonds from the debtor provided in §§ 8.01-531 and 8.01-209.

5. Amend § 8.01-477 to either (a) require a forthcoming bond before an order staying execution may be entered, or (b) conform to § 8.01-546.2 by eliminating the requirement of a forthcoming bond before an order staying execution becomes effective.

6. Cross-reference under § 8.0 1-478 the special rules of lien priority provided in §§ 46.1-77, 8.0 1-558, 8.0 1-488 and 8.9-501(5).

7. Amend § 8.01-372 to require an indemnity bond prior to issuance of an order for sale of property that is perishable or expensive to keep.

8. Amend § 15.1-80 to clarify that the penalties prescribed for improper return apply only m the case of noncompliance with the requirements of that section.

9. Cross-reference under § 15.1-80 the penalty provision for district court executions provided in § 16.1-101.

10. Amend § 15.1-80 to provide that the penalties provided in § 16.1-101 control in the case of district court executions.

11. Amend § 8.01-499 to clarify that the sheriff is required to prepare a return or official statement rather than return the sale proceeds to court.

12. Cross-reference under §§ 8.01-466 and 16.1-98 the special rules governing executions on judgment in favor of the Commonwealth provided in §§ 8.01-201 to 8.01-216.

13. Amend § 8.01-511 to either (a) provide a procedure for coordinating service of garnishment summons on a garnishee and debtor residing in different localities, or (b) clarify that sheriffs are not responsible and may not be held liable for the timing of service.

14. Cross-reference under § 8.01-367 the attachment provisions requiring indemnity bonds, §§ 8.01-537.1 and 8.0 1-55 1.

15. Cross-reference under §§ 8.0 1-526 and 8.01-371 the provisions concerning forthcoming bonds for property subject to attachment or distress, §§ 8.01-553 and 55-232.

16. Amend § 8.01-554 to eliminate the provision imposing primary liability on the sheriff for accepting a forthcoming bond from the defendant in attachment where the bond is later successfully attacked by the plaintiff.

17. Amend §§ 8.01-477 and 8.01-512.5 to allow the debtor to obtain a prompt post-seizure hearing on objections to garnishment and execution other than exemptions as is currently permitted under § 8.01-568 with respect to attachments.

18. Amend § 8.01-201 to make clear that the new provisions for serving notice of levy with an exemption claims form and the prompt hearing procedure under § 8.01-546.2 are applicable in the case of executions on judgments in favor of the Commonwealth (as in the case of private creditors under §§ 8.01-466, 8.01-477.1 and 8.01-487.1).

19. Enact a statute of limitations provision specifically applicable to actions against or upon the bond of an officer responsible for serving an attachment or execution process.

20. Amend § 34-26 to modernize and clarify the list of exempt property.