- I. Garnishment Proceedings
- II. Attachment, Execution, Receivers and Charging Orders
- A. [Pre-judgment] Attachment
- B. Execution
- C. Judgment Liens and Dormancy
- D. Selected Notes on Foreclosure
- E. Receivers
- F. Partnership Charging Orders
The most effective collection technique, whether by garnishment, execution, or other species of forced payment, is the one where you know the debtor’s location, his assets, and their location. An effective interrogator knows the answer to the question before it is asked. Your success, therefore, may in large part be dependent on the quantity and quality of information already on hand.
As an aid in locating military personnel, appended hereto is a list of the World-Wide Military Locators, with their addresses and location requirements. Often, a letter to a commanding officer produces remarkable results. If you suspect your debtor is incarcerated, most state department of corrections will confirm and locate them by telephone. The U.S. Department of Justice, Bureau of Prisons’ National Locator Service telephone number is (202) 307-3126.
Initially, the author would like to make brief mention of a couple of issues relating to judgments in general. Rule 30, Rules for District Courts of Oklahoma, Tit. 12, Okla.Stat. Chap. 2, App., provides for full faith and credit to be given to and recognition of tribal judgments where the tribal court issuing the judgment grants reciprocity to judgments of the courts of the State of Oklahoma. Rule 30.B. The Administrative Office of the Courts maintains a list of the tribal courts granting reciprocity. Rule 30.C. Tribal judgments are essentially filed and noticed in a procedural manner similar to the procedure established for recognition of foreign judgments, as detailed in Rule 30.D.-E.
Recently, Tit. 12, Okla.Stat.1999, § 727 was amended, for the purposes of this topic, dealing with post-judgment interest. §727.A. and C. now provide that post-judgment interest shall accrue from the earlier of the date the judgment is rendered as expressly stated in the judgment, or the date of its filing with the clerk, and, significantly, post-petition interest shall accrue on and include costs and attorney fees. Further, clarification was made that in the case where a contract rate of interest exists, as specified in the contract, that rate shall apply. These statutory modifications became effective November 1, 1999.
I. GARNISHMENT PROCEEDINGS
A garnishment action may be one of the most cost-effective methods of obtaining payment, on the one hand, and certainly gets most judgment debtors’ attention, on the other. Oklahoma’s garnishment statutes were revised in 1995 to eliminate procedural confusion, consolidate certain statutory provisions and modify the nomenclature associated with garnishment practice and procedure. See, Chapter 338, O.S.L. 1995 (H.B. 1324) (the “1995 Amendments”). In short, the 1995 Amendments substantially standardized garnishment procedures and the various types available to judgment creditors.
Creditors are entitled to proceed by garnishment in a court of competent jurisdiction. Tit. 12, Okla. Stat., § 1171.A.,  provides:
Any creditor shall be entitled to proceed by garnishment in any court having jurisdiction against any person who shall be indebted to the creditor’s debtor or has any property in his possession or under his control belonging to such creditor’s debtor … .
There are two classes of garnishments: pre- and post-judgment garnishments. § 1171.B.1. and 2. This paper will focus on four garnishments  available to prosecuting creditors. For conceptual reasons, the author has re-shuffled the order in which they are found in the statute for the purposes of this presentation.
Section 1171.B.1. identifies the first class of garnishment as being 1) pre-judgment
garnishments,  which can only be the “general” type of garnishments governed by § 1173.3. The second (or, post-judgment) class of garnishment outlined in § 1171.B.2. includes, inter alia, the following “types” of garnishments as being: 2) general garnishments (bank accounts, receivables, etc.) pursuant to § 1173.3, 3) noncontinuing “earnings” (known as “wage garnishments” prior to the 1995 Amendments) garnishments pursuant to § 1173, and, 4) continuing “earnings” garnishments pursuant to § 1173.4.
Although the most common form of general garnishment may attack earnings and bank accounts, the creditor should keep in mind the potential for other sources of revenue such as rental income, income from mineral production, payments under promissory notes, accounts receivable due the judgment debtor, contract rights and the like.
Significantly, the 1995 Amendments clarified the meaning of (or arguably redefined) “income” and “earnings” in § 1170A.1.3., as follows:
‘Income’ or ‘earnings’ means any form of payment to an individual regardless of source including, but not limited to, wages, salary, commission, compensation as an independent contractor, workers’ compensation, disability, annuity and retirement benefits, and any other payments made by any person, private entity, federal or state government, any unit of local government, school district, or any entity created by law … . 
As a result of the 1995 Amendments, the author successfully issued and collected a continuing earnings garnishment against a sole proprietorship independent contractor providing janitorial services to a municipal entity. The contract called for the rendition of significant janitorial services on a monthly basis, at the conclusion of which the contractor provided monthly written evidence of completion to the municipality, and which was followed ten (10) to twenty (20) days later by payment. In short, an entire month of “earnings” associated with and payable to the contractor was seized, paying the entire judgment.
B. GENERAL PROCEDURES
As noted, garnishment procedure has been substantially simplified, and standardized among the various “types” by the 1995 Amendments. With the exception of pre-judgment garnishments, general, noncontinuing earnings and continuing earnings garnishments follow the same procedure. Accordingly, the procedural similarities are being addressed in this section with specific differences noted as to each type in their respective topic areas below. 
When judgment is for the payment of money, only, “… no execution or other proceeding shall be taken for the enforcement of the judgment, decree or final order until ten (10) days after the judgment, decree or order is filed with the court clerk. This provision is inapplicable to asset hearing proceedings, which are not stayed. Tit. 12, Okla.Stat.1993, § 990.3.
Pre- and post-judgment garnishments are commenced within the underlying case in which the judgment was rendered by the filing of an affidavit (§§ 1173.3.A., 1173.B., and 1173.4.B.) by the judgment creditor (“garnishor”) on a prescribed form stating the name(s) of plaintiff(s) and defendant(s), and the amount of plaintiff’s original claim against
the defendant(s) above all offsets. § 1172.A.1.-3. If a post-judgment garnishment,  the affidavit must also separately state the amount of any interest, including the rate and date interest began to accrue, court costs and attorney fees awarded. § 1172.A.4., 5.
The affidavit must also contain an averment the plaintiff believes a named person, whether in or out of the county, is indebted to or has property in his possession or under his control belonging to the defendant(s), and the same is, to affiant’s best knowledge and belief, not exempt from execution (§ 1172.A.6.). This affidavit must be filed prior to or at the time and as a predicate to the issuance of garnishment summons (§ 1172.B.). Only one garnishee may be addressed in any affidavit or garnishment summons (§ 1172.C.).
After the filing of the garnishment affidavit and the payment of all attendant costs, the clerk issues a garnishment summons prepared by the garnishor on a form approved by the Administrative Office of the Courts. §§ 1173.3.B., 1173.C., and, 1173.4.C.
The clerk is required to attach to the summons a notice of garnishment and exemptions and request for hearing, in compliance with § 1174.C., which is also prepared by the garnishor (hereafter, “Notice and Request”). The Notice and Request (appended hereto) is a pre-printed, double-sided form approved by the Administrative Office of the Courts and available at your nearest court clerk’s office. § 1172.2.A.
The garnishment summons is served on the garnishee in the manner provided for summons,  along with a copy of the garnishment affidavit, garnishee’s answer form, and Notice and Request, and is to be returned with proof of service within ten (10) days of its date. §§ 1173.3. C., 1173.D., and, 1173.4.D.  Effective November 1, 1999, § 1172.1 was amended by the addition of § 1172.1.C. which allows for the amendment of the garnishment as in other civil actions, as well as the issuance of additional or alias summons at the garnishor’s request.
If the garnishee is liable under the garnishment, the Notice and Request must be immediately mailed by first class mail or hand delivered by the garnishee to the judgment debtor at his last known address as shown in the garnishee’s records at the time the garnishment was served. If more than one (1) address is shown in the garnishee’s records for the judgment debtor at the time of the service of the garnishment summons, any one (1) such address is sufficient. The garnishee is not liable for failure to give this notice, unless the failure was willful. § 1172.2.A.
Prior to the 1995 Amendments, different notice requirements were imposed depending on whether the garnishee was a financial institution. That distinction was eliminated by the 1995 Amendments, and the responsibility for notice is singularly that of the garnishee. The garnishor need only furnish the proper form of notice.
Note, also, § 1174.D.1. allows for service of the Notice and Request on the judgment debtor by personal service, as with a summons on the debtor, or on his attorney of record. Query? When does the judgment debtor’s counsel cease as counsel of record? Must he formally withdraw? As a general rule, the entry of judgment addressing all issues in the case concludes the litigation. This author recommends serving the judgment debtor to avoid the argument.
§ 1174.D.2. allows for service of the Notice and Request by certified mail, return receipt requested on the debtor or his attorney. Provision is also made for endorsement of the notice on the summons issued in the principal action prior to its service or by publication. § 1174.D.3.-5.
In any event, the garnishee’s answer must contain an averment of substantial compliance with this notice requirement. §§ 1173.3.E.5., 1173.F.5., and, 1173.4.F.5.
If the judgment debtor files the application requesting a hearing, the court is obligated to set same no less than two (2) nor more than ten (10) days from the receipt of the application, and the court clerk must give notice of the hearing to both parties by first class mail. At any such exemption hearing, the burden of proof is on the judgment debtor, and the court must issue an order determining the exemption and directing the distribution of funds, as appropriate. The court may also direct orders to the judgment creditor as may be necessary to prevent subsequent garnishment of exempt property. § 1172.2.A.
Where the garnishee must by law or court order pay garnishment funds, the garnishee must pay the funds directly to the judgment creditor’s attorney or to the judgment creditor, if appearing pro se. Payment to the clerk must only be by court order, issued for cause shown, or unless federal law or regulation requires payment through the clerk. § 1172.2.B.
If funds are paid to the clerk on a judgment, whether or not paid pursuant to a garnishment summons, they are required to be paid to the judgment creditor’s attorney within twenty-one (21) days of receipt, without further court order. If the funds being distributed were received under a garnishment, the court has no duty to inquire or insure, and therefore is without liability, as to whether or not the Notice and Request was “delivered” by the garnishee.
Prior to the 1995 Amendments, the statutory language, due to piece-meal statutory amendments over the years, referred to the garnishee’s response in some instances as an “affidavit,” and in others as the garnishee’s “answer.” The 1995 Amendments eliminated that confusion, and the garnishee’s “answer” is statutorily addressed in each section pertaining to the respective type of garnishment.
Reference should be had to the statutory forms of garnishee’s answers appended hereto as to particular information required to be disclosed and the form and method of computation, if any, associated therewith. The general information required in the garnishee’s answer is, in most respects, consistent between the three types. As to specific differences, please see each relevant section and appended forms. The generally similar information includes whether the garnishee was indebted to (§ 1173.3.E.1.) or the employer of (§§ 1173.F.1., 1173.4.F.1.) the judgment debtor with full disclosure of specific facts concerning relevant pay periods, disputes and prior garnishments, etc., whether the garnishee claims any setoff, defense, other indebtedness, liability, lien or claim to the property, together with the facts and circumstances surrounding same (§§ 1173.3.E.2., 1173.F.2., and 1173.4.F.2.), the garnishee may claim an exemption or lawful objection to the garnishment on behalf of the judgment debtor, at the garnishee’s option (not obligation) (§§ 1173.3.E.3., 1173.F.3., and 1171.4.F.3.), and, if the garnishee discloses any indebtedness or property of the debtor, the names, addresses and nature of claims of other claimants to the property, again, at the option, not obligation, of the garnishee (§§ 1173.3.E.4., 1173.F.4., and 1173.4.F.4.).
In the case of earnings garnishments, § 1178.B. (apparently whether noncontinuing or continuing), and general garnishments, § 1178.2.A. requires a garnishee’s affidavit, which, as can be seen from the appended forms and this section, in most respects reflects the information required by §§ 1173.3.E., 1173.F. and 1173.4.F., supra. The forms represent, and it is suggested the statute was intended to incorporate the earnings calculations and other pertinent information into a form of answer binding the garnishee under oath before the court. The forms (approved by the Administrative Office of the Courts) contemplate one document of multiple pages, not two documents displaying identical information. Pre-1995 Amendment language was confusing in this respect.
Garnishees’ answers are authorized to be made, in any instance, by the attorney of the garnishee, and, in the case of a corporation, by any officer, or, in the case of any other garnishee, any agent. § 1180.
The ability to depose or submit interrogatories to a garnishee is discussed below, under “H. Garnishment Disputes.” For the purposes of this section, it should be noted the same may be taken or issued at any time after service of the garnishee summons. § 1183. Accordingly, our examination now turns to the individual differences between general, noncontinuing earnings and continuing earnings garnishments.
C. PREJUDGMENT [GENERAL] GARNISHMENTS
As with all forms of garnishment, the pre-judgment garnishment process begins with a garnishment affidavit pursuant to § 1172.A. A pre-judgment garnishment summons cannot issue until after the defendant has been served with the garnishment affidavit with a notice attached indicating a pre-judgment garnishment summons has been requested and the defendant has five (5) days to object to its issuance. § 1172.1.A.
The defendant’s objection must be in writing and filed with the clerk. If no objection is filed within the five (5) day objection period, the summons is issued after an appropriate undertaking is posted for double the value of the plaintiff’s claim. §§ 1172.1.A.2., 4. If an objection is timely filed, the court shall set the matter for “prompt” hearing at the request of either party with notice to the other party, following which, and the plaintiff’s proof of the probable merit of its case and posting the undertaking, the court may issue the garnishment summons.
At this point it is worth noting § 1172.1.A.4. provides the undertaking must be executed by one or more sureties approved by the clerk or the court, in an amount twice the amount of plaintiff’s claim (not, twice the amount of the property sought, as in a replevin), to pay to the defendant all damages suffered as a result of the pre-judgment garnishment, including reasonable attorney’s fees, if the order is wrongfully obtained.
If plaintiff is successful, the pre-judgment garnishment summons is issued by the clerk (with no objection), or the court (following objection and hearing).
An alternative procedure is provided where notice cannot be reasonably given to the defendant of the pre-judgment garnishment, although a reasonable effort was made to notify him, and following hearing. Also note, in this instance, the defendant may move to vacate to have the garnishee summons quashed, which must be granted unless plaintiff again proves the probable merit of its cause and the truth of its garnishment affidavit. § 1172.1.B. The clerk may issue an order to pay money into the court after the hearing, at the direction of the court. Id.
D. POST-JUDGMENT GENERAL GARNISHMENTS
Within ten (10) days of service of the garnishment, the garnishee must file its answer with the clerk on a prescribed form (copy appended hereto), and pay the indebtedness or deliver the property belonging to the judgment debtor to the judgment creditor’s attorney, together with a copy of the answer. § 1173.3.E.
The garnishment summons and affidavit served on the garnishee under a general garnishment are a lien on the judgment debtor’s property due at the time of service of the summons on the garnishee, to the extent the same is not otherwise exempt from garnishment. § 1173.3.F.
A judgment creditor may similarly proceed against the same or different garnishees under a new garnishment affidavit if it is believed they have subsequently become liable to the judgment debtor. § 1175.
E. NONCONTINUING EARNINGS GARNISHMENTS
As previously noted, procedurally, earnings garnishments (whether noncontinuing or continuing) are similar to general garnishments, except for the time mandated for the garnishee’s answer and the effect of that answer. Any judgment creditor can obtain a noncontinuing lien on earnings. § 1173.A.
A garnishee’s answer to a noncontinuing earnings garnishment summons is due on the earlier of seven (7) days following the end of the judgment debtor’s current pay period, or, thirty days from the date of service of the garnishment summons. § 1173.F.
A garnishment lien is created and attaches to the judgment debtor’s non-exempt property due at the time of the service on the garnishee or the effective date of the summons. § 1173.G. This lien has priority over any subsequent garnishment lien or garnishment summons served on the garnishee. § 1173.H.1. If subsequent garnishment summons are served on the garnishee while a previous garnishment lien is still in effect, the garnishee must answer the later summons by stating the garnishee is holding property of the judgment debtor under a prior garnishment lien or summons, and give the date when all prior garnishment liens or summons are expected to end. § 1173.H.2.
It is possible to “stack” garnishment liens involving (arguably) general, noncontinuing and continuing earnings garnishments. It is clear that when a continuing earnings garnishment is served and issued against a judgment debtor already subject to a continuing earnings garnishment, the subsequent continuing earnings garnishment clearly takes effect upon the expiration of the prior garnishment lien and is effective from the time of its effectiveness, not the time of service of the garnishment summons. § 1173.4.K.
The language of § 1173.4.K. is (with pre-1995 Amendment strikeout and 1995 Amendment highlighted) as follows:
Any garnishment issued against a debtor already subject to a continuing wage or noncontinuing earnings garnishment shall take effect immediately upon the conclusion of the prior garnishment, and shall be effective for its full period of time or as otherwise provided in this section.
Accordingly, it appears it could be successfully argued, and the statute was intentionally drafted to be broad enough, that using the phrase “any garnishment” allows stacking of all three (3) types of garnishments, and certainly allows stacking of both types of earnings garnishments.
If a noncontinuing earnings garnishment is issued against a judgment debtor who is subject to an income assignment for child support, the garnishee is required to calculate the maximum percentage of the judgment debtor’s income disposable earnings pursuant to § 1171.2, and then deduct from that percentage the actual percentage of the defendant’s disposable earnings actually withheld under the income assignment. This resulting percentage is the amount to be withheld by the garnishee, not to exceed twenty-five per cent (25%). § 1173.I. In short, the support obligation takes priority over the creditor’s garnishment efforts, which, as has been shown, is a consistent theme throughout the garnishment statutory provisions. Here, the garnishing creditor would obtain the difference between what is left after the forced child support deduction and 25%.
F. CONTINUING EARNINGS GARNISHMENTS
Any judgment creditor may obtain a continuing lien on earnings. § 1173.4.A.
A garnishee’s answer to a continuing earnings garnishment summons is due within seven (7) days following the end of each pay period, or if the judgment debtor does not have regular pay periods, the garnishee must file an answer with the clerk after any payment by the garnishee to the judgment debtor and pay the amount withheld from such payment to the judgment creditor’s attorney with a copy of the garnishee’s answer. § 1173.4.F. See, Norwest Colorado, Inc. v. Partridge Capitol Corp., 891 P.2d 624 (Okla.App. 1995) discussed below (judgment creditor’s failure to take issue with garnishee’s affidavit it was not indebted or liable to judgment debtor on date first garnishment summons issued did not end garnishment by operation of law, where garnishment was continuing “wage” garnishment requiring multiple responses from garnishee, and not a general garnishment. General garnishment contemplates a single summons and answer, while continuing “wage” garnishments contemplate multiple responses.)
The lien on wages created by § 1173.4.A. is effective as a lien on the defendant’s non-exempt wages due from the garnishee at the time of service or the effective date of the summons, and attaches to subsequent non-exempt earnings until the total amount subject to the lien equals the balance due under the judgment, the judgment debtor’s employment is terminated, the judgment is vacated, modified, or paid in full, the garnishment is dismissed, or 180 days from the date of service of the affidavit and summons. § 1173.4.G. The lien will continue in effect through the end of any pay period which may have begun before the 180 days ran. Id.
§ 1173.4.H.1. creates earnings liens and determines their priorities as being first in time of service. If a previous garnishment is still in effect, the garnishee must answer indicating he is holding the judgment debtor’s property under a prior garnishment lien and noting the time of the expiration thereof. § 1173.4.H.2.a. A subsequent summons and answer are not effective if a summons or lien on the same cause of action is pending at the time of service. In essence, no “boot-strapping” to bust intervening garnishments. § 1173.4.H.2.b.
See, however, § 1173.4.H.2.b.’s language added by the 1995 Amendments providing a subsequent garnishment summons in the same action in which a garnishment lien is pending at the time of service of the subsequent garnishment summons is ineffective, “… unless the subsequent summons in the same cause of action is served after the one-hundred-fiftieth day of the previous garnishment lien.” In short, you cannot boot-strap a lien and jump the priority of another lien against the judgment debtor served while your lien is in effect, but, you can extend your lien another 180 days if new summons is served after the first lien is in effect for 150 days, thereby possibly jumping the gun on other judgment creditors who may wait to issue garnishment summons until they believe the prior lien has expired. The moral of this story? If you are a judgment creditor behind an existing continuing earnings garnishment lien, issue garnishment summons and serve same to establish your priority. If you are the first garnishment lien holder, issue and serve a superseding garnishment summons after 150 days to insure priority over subsequent garnishment lien attempts.
The garnishor and judgment debtor may agree to suspend or modify a continuing wage garnishment for a specific period of time within the effective period of the garnishment if they do so in writing, the same is filed of record with the court clerk in which the judgment was entered, and a copy is mailed by first class mail to the garnishee. § 1173.4.I. Query: what effect does such a suspension have on “stacked” liens?
While all of the possible exemptions from garnishment available to a judgment debtor are outside the scope of these materials or the ability to present the same in detail, a comprehensive list of most exemptions not included within Oklahoma’s general exemption statute  are listed in the garnishment Notice and Request discussed earlier, a copy of which is appended hereto.
Significantly, however, in 1997, Oklahoma’s constitutional provisions (§ 1, Art. XII, Okla. Const.) and homestead exemption statute (31 O.S.1997 §2) were revised by the Legislature, with the amendments becoming effective on November 1, 1997 . The Legislature attempted to remedy problems associated with the combined use of homestead for both residential and business purposes, as well as the limitation previously imposed on urban homesteads exceeding one-fourth (¼) of an acre in size.
Prior to November 1, 1997, if a homestead were used for any business purpose, the allowed exemption was limited to $5,000 in value. Since modification, if no more than twenty-five per cent (25%) of the total square footage of the improvements for which a homestead exemption is claimed is used for business purposes, the property retains its homestead character and exemption without regard to value.
Prior to modification, an urban homestead was limited to one (1) acre to be selected by the owner, not to exceed $5,000 in value except, it could not have been reduced to less than one quarter (¼) acre without regard to value. Since the amendments, the allowed homestead exemption consists of not more than one (1) acre without any regard to value.
Prior to modification, the statutory language also referred to “The homestead of any family in this state or the homestead of a single, adult person in this state ….” Now, the statutory language refers to “The homestead of any person in this state ….” What is left unanswered is the possibility a husband and wife (each of whom constitutes a “person”) might claim up to 320 acres of rural or non-urban real estate (160 acres for him, 160 acres for her), or up to 2 acres (1 each) of urban real estate. This result does not appear to have been the intention of the Legislature, but the argument remains.
The modifications also addressed the homestead exceeding one (1) acre used by its owner for both residential and commercial agricultural purposes which may be annexed by a city or town after November 1, 1997. Section 2.B. provides this property owner may continue to claim up to 160 (320?) acres if he/she continues to use the property for “commercial agricultural purposes,” which the Legislature did not define.
Tit. 36, Okla. Stat., § 3631.1.A.2., 3., exempts from all forms of execution against either the insured or the beneficiary, “All money or benefits of any kind, including policy proceeds and cash values, to be paid or rendered to the insured or any beneficiary under any policy of insurance issued by a life, health or accident insurance company, under any policy issued by a mutual benefit association, or under any plan or program of annuities and benefits … .” Prior to 1992, and § 3631’s repeal, policy proceeds were only insulated from the creditors of the insured, not the debts of the beneficiary.
Section 1171.1.B., discussed, note 3, supra, duplicates, for garnishment purposes, existing exemption statutes codified as Tit. 31, Okla. Stat. § 1.A.18., which exempts from garnishments 75% of all “wage or earnings” for personal or professional services earned during the last ninety (90) days, except for collection of child support. Since all wages are exempt from pre-judgment garnishment (§ 1171.1.A), this provision applies to all remaining forms of garnishment being discussed here, as in Tit. 31, Okla. Stat., § 1.A.18.
Tit. 31, Okla. Stat. § 1.A.18. exemption provisions (75% of earnings within the past 90 days) may also be extended to cover all or a part of the remaining 25% of a debtor’s wages on a showing of undue hardship to the judgment debtor and the necessity of those funds for the maintenance of a family supported wholly or partially by the labor of the debtor, unless the same seeks the collection of child support or maintenance.
Once the undue hardship exemption is asserted, a hearing is conducted following the procedure of § 1172.2. See, Tit. 31, Okla. Stat., § 1.1.A., which identifies the criteria the court will use in making its determination of undue hardship. See the discussion, infra, concerning garnishment exemptions under the garnishment statutes.
Modifications to § 1.1.A. include the addition of §§ 1.1.A.22. – 25., which, effective November 1, 1999, made individual development accounts, Roth IRA’s, education individual retirement accounts and federal earned income tax credits exempt under state statute.
See, In re: Miles, 153 BR 72 (Bankr. ND OK 1993) held state and federal income tax refunds do not constitute wages and are therefore not exempt property under these provisions.
See, also, First National Bank and Trust Company of Ada v. Arles, 816 P.2d 537 (Okla. 1991), holding process in aid of execution may not be used to force a judgment debtor to pay money where the judgment debtor’s sole source of income is social security and disability benefits, which are exempt from execution or other creditor remedies under Federal law. See, also, Sears, Roebuck and Company v. Harris, 854 P.2d 921 (Okl.App. 1993).
In re: Martin, 875 P.2d 417 (Okla. 1994), a case involving a certified question of law from the U.S. Bankruptcy Court for the Western District of Oklahoma, involved the question whether Oklahoma’s marshaling statute (Tit. 42, Okla.Stat. § 17), constitution and exemption statutes permit creditors to compel the marshaling of assets against homestead property. The Court found the purpose of the exemption is to protect the family and should be liberally construed, joining the majority of jurisdictions and adopting an exception holding a debtor is entitled to exclude the homestead from marshaling of assets.
More recently, In re: Larson, 203 Bankr. 176 (Bankr. W.D. Okla. 1996, per Lindsey, B.J.) held a home computer was not “reasonably necessary” for the maintenance of the debtor’s home, is not a household furnishing for exemption purposes, and could not be claimed as exempt under Oklahoma law. Larson was followed by In re: Liston, 206 Bankr. 235 (Bankr. W.D. Okla. 1997, per TeSelle, B.J.), similarly holding a home computer and treadmill did not qualify as either household furniture, or in the case of the treadmill, a professionally prescribed health aid.
But, Larson and Liston were followed by In re: Ratliff, 209 Bankr. 534 (Bankr. E.D. Okla. 1997, per Cornish, B.J.) holding a personal home computer and printer of the Chapter 13 debtors which was used by the debtors and their school aged children for homework, papers and reports, for storing files and for preparing tax records qualified as “household goods” to which the debtors were entitled to claim as exempt, and factually distinguished this case from both Larson and Liston.
It has been held in the Western District of Oklahoma that a second television set was exempt after the creditor failed to prove it was not reasonably necessary for the maintenance of the debtor’s home. See, In re: Crisp, 215 Bankr. 476 (Bohanon, B.J., Bankr. W.D. Ok. 1997). The court cited In re: Davis, 134 Bankr. 34 (Lindsey, B.J., Bankr. W.D. Ok 1991), which found no reason why more than one television set should not be held to be reasonably necessary for the maintenance of the household, and no proof was offered in either case to contradict that conclusion. Important here are two (2) concepts for creditors objecting to claimed exemptions. First, it is clear to be exempt, the “household furniture” must be “… reasonably necessary for the maintenance of the debtors’ home.” Crisp, at 476. Second, it is the burden of the objecting party to prove, through competent evidence, the property is not reasonably necessary for the maintenance of the debtors’ home.
Similarly, in In re: Payne, 215 Bankr. 889 (Michael, B.J., Bankr. N.D. Ok 1997), in another lien avoidance case, the court found the debtors’ push mower and riding mower are not exempt as “implements of husbandry,” since neither debtor claimed to be engaged in farming on either a full- or part-time basis and mowing their yard, although slightly over one (1) acre, was not farming. They did, however, qualify as “household furniture” since they were necessary to maintain the household of the debtor, similarly to vacuum cleaners, air conditioners.
In In re: Anderson, 932 P.2d 1110 (Okl. 1996), in a question certified by the United States Bankruptcy Court for the Western District of Oklahoma, the Oklahoma Supreme Court interpreted 31 Okla.Stat.1991 § 1(a)(21), which provides for an exemption in such “… person’s interest in a claim for personal bodily injury, death or workers’ compensation claim, for a net amount not in excess of [$50,000.00], but not including any claim for exemplary or punitive damages.” The Court found that where a debtor has an interest in a separate and distinct claim for personal injury, death or workers’ compensation, the exemption extends up to $50,000.00 for multiple exemptions in each. Here the debtor had a workers’ compensation claim for a job-related injury, which was aggravated by surgery giving rise to a personal injury or malpractice claim. Since the legislature specifically required that the interests be aggregated or could have mandated a monetary cap, but did not, and the language used is broad enough to allow multiple exemptions for separate and distinct injuries.
H. GARNISHMENT DISPUTES
If the garnishee fails to timely answer (or answer the interrogatories or appear for the deposition allowed by § 1183 as an aid to execution, infra), default judgment can be taken against him for the amount of the judgment rendered in the principal action, plus the costs of the garnishment pursuant to § 1179. Contempt proceedings may also be available.
To that end, § 1183 was amended, effective November 1, 1999, to allow for the examination of the garnishee by the judgment creditor in any manner prescribed by the Oklahoma Discovery Code. Discovery may commence at any time after service of the garnishee summons. Now, the garnishor is allowed to “commence discovery” within forty-five (instead of twenty) days after the garnishee’s answer. The discovery request or notice of deposition must contain the admonition that a failure thereunder will result in default judgment against the garnishee and/or contempt proceedings. Now, the garnishee has twenty (as opposed to ten) days to respond to written discovery and, in keeping with current rule that discovery is not filed, the responses are to be delivered (by mail) to counsel, as opposed to filed with the clerk as prescribed by the Discovery Code.
The Oklahoma Supreme Court held it had no duty to render a default judgment in Casualty Corp. of America v. Turner, 458 P2d 907 (Okl. 1969). Section 1179 was amended in 1992 (post-Casualty Corp.) requiring the court to issue an order compelling the garnishee to file its garnishment answer or answers to interrogatories or appear to be deposed in aid of execution within a prescribed period of time of not less than seven (7) days, and deliver to the court or garnishor any money or property required to be paid or delivered under the garnishment. The order must specify the manner and method of notice, but most significantly informs the garnishee of its failure to respond and the threat of default judgment for its continued failure. In essence, the amendment affords the garnishee the due process found to be lacking in Hagar v. Goodyear Tire and Rubber Co., 853 P2d 768 (Okl.1993) (based upon facts existing prior to the amendment of the statute).
If the garnishee fails to respond following this notification, the language of § 1179 would appear to mandate the entry of default judgment for the amount of the judgment and costs from the principal judgment, and costs of the garnishment, including a reasonable attorney fee for prosecuting the garnishment. However, B&C Investments, Inc. v. F&M National Bank & Trust, 903 P.2d 339 (Okl.App. 1995), which followed the statute’s amendment, referring to Casualty Corporation of America, supra, and Davis v. Meno Guaranty Bank, 836 P.2d 1305 (Okl.App. 1992), both of which preceded its amendment, clearly establish “shall” means “may” and default judgment, following the prescribed notice, is discretionary with the court.
The court has the authority to vacate or modify any order issued under this section in the manner provided in §§ 1031 or 1031.1 dealing, respectively, with vacation of orders and judgments for cause, and vacation of judgments with or without cause within thirty (30) days of rendition.
If the garnishee answers, the answer is conclusive as to the facts therein stated unless the garnishor takes issue with the answer by service on the garnishee or his attorney of record personally or by certified mail, return receipt requested, of a written notice of such election within twenty (20) days “… from the receipt of the garnishee’s answer, from the date of the deposition of the garnishee, or from receipt of the garnishee’s answers to interrogatories, whichever is later … .” § 1177. At that point, the issue stands for trial as a civil action with the affidavit being deemed the petition, and the garnishee’s answer the answer thereto. Id.
Significantly, on the issue of the garnishee’s answer and what the garnishee must answer, see Fast Food Systems, Inc. v. Ducotey, et al., 837 P.2d 910 (Okl. 1992), where the judgment creditor challenged the bank’s garnishment answer it had no property belonging to the judgment debtor when, in fact, bank was in possession of the debtor’s tax refund check at the time of service of the garnishment summons. Bank processed through its normal collection procedures the judgment debtor’s federal tax refund check at the time of deposit, although the same had not been actually paid two (2) hours later when the garnishment summons was served. Bank justified its answer since when served, its computer did not register the deposit, which was processed after the close of business the date of service of the summons. Credit was received on the deposit the following day.
Finding bank was obligated to either credit the judgment debtor’s account or return the item to him when presented for deposit prior to the receipt of the garnishment summons, the check was constructively in custodia legis, and the fact bank did not have to pay the item did not relieve bank of its statutory duty to disclose its existence in its garnishee’s answer.
Proceedings against a garnishee are deemed an action by the judgment creditor against the garnishee and judgment debtor, as parties defendant, and all provisions for judgment enforcement are applicable thereto. No trial involving the garnishee, however, shall be conducted until the plaintiff has actually obtained judgment against the defendant in the principal action , and if the defendant prevails, the garnishee is dismissed with costs, unless appealed.
Importantly, however, § 1182 provides in the event of a judgment being obtained against the garnishee, the garnishee is relieved of its responsibility to the defendant to the extent of that paid, delivered or accounted for by the garnishee, and it is no defense by the garnishee in proceedings against it that the debt owing to the defendant was unliquidated or was not due. § 1182.
The garnishee may be examined by the garnishor by deposition or interrogatories at any time after service of the garnishee summons. The garnishor may also serve interrogatories on the garnishee within twenty (20) days of the filing of the garnishee’s answer as to matters therein contained or any issue germane to the garnishee’s liability to the judgment debtor. Specific notice requirements and the methodology are specified in the governing § 1183, but are similar to that noted above concerning default judgments against the garnishee. see, also, the comments, supra, concerning the amendment of § 1183 to make the Oklahoma Discovery Code generally applicable in garnishment proceedings.
Note § 1190.A. was amended in 1992, raising the fee a garnishee may deduct from the judgment debtor’s property from $3.00 to $10.00 to reimburse it for his costs in answering. If the garnishee is not indebted to the judgment debtor and its answer is filed and mailed or delivered to the judgment creditor’s attorney, the garnishee may assess the judgment creditor a fee of $10.00 to reimburse its costs. Also note § 1190.B., and C., generally provide for the award of costs to the prevailing party if the garnishor recovers in a contest more than the garnishee indicated it was indebted to the judgment debtor, or vise versa, and in cases not otherwise provided, the court may award costs in favor of or against any party in its discretion.
Also significantly, effective November 1, 1999, § 1190 was amended to add § 1190.D., which provides that in addition to the judgment amount and any attendant costs and/or attorney fees awarded, the judgment creditor, if represented by an attorney, is entitled to an additional attorney fee in the amount of $50.00 for prosecuting a noncontinuing earnings garnishment , one to collect child support, and for prosecuting a general garnishment. A fee of $100.00 is provided, in addition to the judgment amount, for prosecuting a continuing earnings garnishment. The statute is unclear as to the logistics of the “assessment,” but would appear to be automatic. In short, just add it into the judgment accounting being maintained.
I. SPECIFIC GARNISHMENT ISSUES
In an opinion which has yet to be released for publication, the Oklahoma Court of Appeals, Div. 4, addressed the effect of garnishments vis-à-vis oil and gas production from protected Indian land. In Halliburton Oil Producing Co. v. Grothaus, et al., Vol. 69, No. 41, O.B.J. 3784 (Okl. App. 11/3/98), a garnishment was brought to collect on a deficiency judgment. The judgment debtors pressed for exemption from garnishment on the basis the production was from restricted Indian property.
Halliburton found, beginning on page 3787, from the time of service of the garnishment summons, the res (production proceeds) in the hands of the garnishee is impressed with an equitable lien in favor of the garnishor (judgment creditor). Further, the proceeds from recovered oil and gas from land that was not in restricted Indian ownership at the time of severance is reachable by garnishment and available for creditor satisfaction. The lands’ status at the time of extraction is the critical focus for this determination. Similarly, the proceeds from recovered oil and gas extracted from land that was in restricted Indian ownership stands immune from the owner’s liability.
Norwest Colorado, Inc. v. Partridge Capitol Corp., supra, involved a garnishee whose only employee was the judgment debtor who, although receiving no salary, received a monthly draw of $1500.00. The garnishee was a corporation owned by trusts set up for the judgment debtor’s five sons. A continuing “wage” garnishment was served on garnishee, which answered that no wages were owed the judgment debtor. At a later asset hearing, the court ordered the payment of monthly installments to the judgment creditor and further provided those payments were in lieu of further garnishments as long as the judgment debtor was “drawing” no more than $1,500 per month.
Payments were sporadic but received for five (5) months, and the judgment debtor received draws in excess of $1,500 per month for three (3) months. Then, SHAZAM!, on Christmas Eve, 1993, the judgment debtor received a bonus from the garnishee of $250,000.00. Surprisingly, or possibly not so, the judgment creditor received nothing. Judgment creditor sought, via summary judgment, $65,318.49, representing 25% of the amount paid to the judgment debtor in the six month garnishment period. Christmas that year was great, but the New Year was hell. Creditor won.
Farmer’s Exchange Bank of Antlers v. Dennis, et al., 735 P.2d 587 (Okl.App. 1987) involved a dispute between two banks. The judgment creditor (“Garnishing Bank”) garnished the judgment debtor’s bank (“Garnishee Bank”). Two issues were addressed, involving, initially, the trial court’s granting permission to the Garnishing Bank to contest the Garnishee Bank’s garnishment answer out of time, finding no abuse of discretion in doing so and moving quickly to what the Court of Appeals termed the determinative question involving:
… the issue of priority of [Garnishee Bank’s] and [Garnishing Bank’s] claims to the funds of the debtor … .”
Farmer’s Exchange examined the law of set-off, ultimately determining the judgment debtor’s debt was due at the time of the garnishment, and, accordingly, the Garnishee Bank was entitled to set-off the debt due it, which defeated the claim in garnishment of the Garnishing Bank.
In Winkler v. The Solutions Group, Inc., et al., 915 P.2d 386 (Okl.App. 1995), judgment creditor garnished the judgment debtor’s escrow agent. The garnishee asserted an interest in funds on deposit in the form of a perfected security interest in favor of the judgment debtor’s bank. The funds were ultimately interplead by the bank into court for the determination of the merits of the competing claims. Garnishor and the bank both filed motions for summary judgment, but at the hearing thereon, some fifteen (15) months later, the bank dismissed its claim. The Court held the trial court, after the bank’s dismissal, retained jurisdiction to award attorney fees against the bank. The Court also held, that although the garnishment statutes may not anticipate an award of prevailing party attorney fees as between a garnishment lien creditor and another lien creditor, when the bank asserted its claim under the judgment debtor’s security interest, its lien claim stood in direct competition with judgment creditor’s garnishment lien and the garnishor was entitled to an attorney fee award under Tit. 12, Okla.Stat. § 176 (providing a prevailing party attorney fee award in any action to enforce a lien).
In DPW Employees Credit Union v. Tinker Federal Credit Union, et al., 925 P.2d 93 (Okl.App. 1996), the judgment creditor-garnishor issued its garnishment and served the garnishee. The following day, the judgment debtor filed bankruptcy and filed his notice of that bankruptcy in the state court action three (3) days hence. The garnishee answered stating Tit. 11, U.S.C. § 362 (automatic stay in bankruptcy) prevented it from paying the funds in accordance with the garnishment summons. Garnishor took issue with the garnishee’s answer, asserting the automatic stay was inapplicable to the garnishment summons served prior to the initiation of the bankruptcy case.
A declaratory judgment action followed, initiated by the garnishee. The trial court “… apparently ignoring the automatic stay provisions of section 362 …” entered judgment for the garnishor and found the garnishee liable for its failure to pay in the funds on deposit at the time of service of the garnishment summons. The Court, through Rapp, J., found the automatic stay required the garnishee, upon notice of the pendency of the bankruptcy case, to retain the funds pending further order of the bankruptcy court, and that releasing the funds would, itself, represent a violation of the automatic stay. The Court also remanded the matter to the trial court for “… a Burk-style hearing …” to determine the garnishee’s attorney fees to be paid by the garnishor.
In Baker v. Baker, 710 P.2d 129 (Okl.App. 1985), the court found that a joint tenant bank account can be reached by creditors of one of the tenants only to the extent of that tenant’s equitable interest in the account. Here, an ex-wife garnished her ex-husband’s joint account with his new wife, who also deposited her child support checks from a former marriage to that account. The court noted, however, as to joint accounts, a rebuttable presumption exists that each tenant is entitled to the use of the entire account. Accordingly, the burden is on the joint owners to prove the equitable interest sufficient to defeat the garnishment.
Also note that under Sairtain v. Cowherd, 103 Okl. 72, 229 P. 408 (Okl. 1924), the Court held a person who is indebted to a partnership cannot be garnished in an action against one of the partners (not the partnership) until there has been an accounting of partnership funds. Accordingly, it is suggested by the author an alternative would be the consideration of a partnership charging order, which is discussed later in these materials.
II. ATTACHMENT, EXECUTION, GARNISHMENT, RECEIVERS AND PARTNERSHIP CHARGING ORDERS
The essential distinction between garnishments, attachments and executions is the sheriff’s search in the county and seizure of property of the debtor under a (pre-judgment) attachment or (post-judgment) execution, while a garnishment is the forced payment into court directly by a third party of property of, or an obligation owed by that third party to the judgment debtor.
A. [PREJUDGMENT] ATTACHMENT
Attachment, by definition, is the pre-judgment seizure of property of the defendant for satisfaction of a judgment to be rendered. The governing provisions are found in §§ 1151 – 1160.
§ 1151 specifies the grounds on which attachment may issue at or after the commencement of a case. Most of the grounds revolve around the defendant(s) being a foreign corporation or nonresident (but only if the claim is one for a debt or demand arising upon contract, judgment or decree, unless the cause of action arose wholly within this state), the defendant absconds or is about to remove property to defraud creditors, leaves his county of residence or conceals himself to avoid service, fraudulently contracted or incurred the debt for which suit is being brought, failed to pay the price for some object on its delivery where he was obligated to do so, and the like.
An order of attachment is issued following the filing of a verified application showing the plaintiff’s claim, stating the claim is just, the amount plaintiff should recover and the existence of one or more grounds set forth in § 1151 (§ 1152.1., 2.), and service of notice to the defendant with the application attached indicating the attachment is requested and he may object in a writing filed with the court and mailed to plaintiff’s attorney within five (5) days of receipt of the notice (§ 1152.3.). You may also serve the attachment application and notice with the petition and summons. Id.
If no objection is filed and served, no hearing is necessary and the clerk is authorized to issue the attachment order once an undertaking is posted for twice the amount of the plaintiff’s claim. If an objection is timely filed, the court must set the matter for hearing on the request of either party with notice to the other. At the hearing, the plaintiff must prove the probable merit of his cause and the truth of the matters asserted in the application, at which time the court will issue the order of attachment, again following the posting of a bond in twice the amount of his claim. §§ 1152.4., 1153. Note, where the State of Oklahoma is the plaintiff, no bond is required. § 1153.
If notice cannot be given the defendant, the order may issue following hearing where the plaintiff meets the same burden of proof and the bond is likewise posted. However, the defendant may later move to vacate the order under § 1241, which must be heard within five (5) days of the motion’s filing, and which must be granted unless at the hearing the plaintiff again meets its burden of proof noted above.
Note, however, American Superior Feeds, Inc. v. Bourne, 848 P.2d 1185, 1186 (Okl.App. 1993), suggesting a defendant against whom an order of attachment, and in this case, who actively opposed the order following notice and hearing, may move at any time before judgment to dissolve or discharge the attachment order.
The order is directed and delivered to the sheriff requiring him to attach all non-exempt real and personal property located in his county, or as much as is necessary to satisfy plaintiff’s claim (which must be stated in the order) and the probable costs of the action not to exceed $50.00. § 1154. As a practical matter here, as with executions, if you do not specify the property to be attached (or with executions, levied upon), you will realize nothing. In most instances with most defendants and judgment debtors, the sheriff does not have the time or resources to dragnet the county in search of property of the debtor. Attachment orders may also be issued to sheriffs of different counties at the same time or in succession, at plaintiff’s option, but, unless otherwise ordered, only those executed orders are taxed as costs. § 1155.
Return of service is due with the summons for attachment orders issued at the commencement of the case, or within twenty (20) days when issued afterwards. § 1156. Where several attachment orders exist against the same defendant, they are executed in the order of their receipt by the sheriff. § 1157.
The order is to be executed without delay. The sheriff is required to go to the location of the property, declare the same to be attached under plaintiff’s lawsuit, and have two (2) householders swear or affirm to make, with the sheriff, a true inventory and appraisement of the property attached. This inventory and appraisal is then signed by the sheriff and his householders and returned with the order. § 1158.
If real property is attached, a copy of the order is left with the occupant, or if none, posted on the property. Third party rights are not affected until a copy of the attachment order and legal description of the realty attached is filed and recorded with the county clerk of the county of the property’s location. If personal property is attached and the sheriff can physically obtain possession of it, he does so and holds the same pending further order of the court. § 1159.
Following execution of the attachment order, the sheriff must return the property (or its value, if lost or destroyed) to whom it was seized upon the posting of a bond or undertaking in an amount double the value of the property being redelivered. § 1160.
1. General Propositions
Lands, tenements, goods and chattels, not exempt by law shall be subject to the payment of debts, and shall be liable to be taken on execution and sold …
Tit. 12, Okla. Stat., § 733.
As previously noted, under a judgment only for the payment of money,
“… no execution or other proceeding shall be taken for the enforcement of the judgment, decree or final order until ten (10) days after the judgment, decree or order is filed with the court clerk.
Tit. 12, Okla.Stat.1993, § 990.3. This provision is inapplicable to asset hearing proceedings, which are not stayed. Id.
Note the discussions raised in connection with garnishments concerning exempt property, and keep in mind the broad exemptions contained in Tit. 31, Okla. Stat., § 1, et seq. Notwithstanding their breadth, the exemptions themselves are fairly straight forward and are outlined in the statute. In most instances, the exemptions will severely limit the effectiveness of an execution.
Executions are deemed process of the court, issued by the clerk, directed to the sheriff, and may be directed to different counties at the same time from the court rendering judgment. § 731. See also, Wolfe v. Smith, 194 Okl. 201, 148 P2d 161 (1944). Once issued, a certified copy of the general execution is filed in the office of the county clerk of the county of the sheriff holding the execution and is indexed the same as judgments. § 759.A. All real property not otherwise subject to the judgment lien provided by § 801 and all goods and chattels of the judgment debtor are bound from the time they are seized in execution. § 734.
It is unlawful for anyone to levy an attachment or execution who is not a bonded officer (sheriff). § 752. If issued to or levied by someone other than a bonded officer, the same is void and those involved may be liable for damages caused thereby (§ 753), as well as suffering criminal penalties therefor (§ 754). “Levy” is generally thought to be the seizure of the property, while “execution” is the name of the writ itself and the process of its issuance and delivery to the sheriff for levy.
§ 732 identifies three kinds of executions: 1) “against the property of the judgment debtor” (general execution), 2) “for the delivery of possession of real or personal property, with damages for withholding the same, and costs” (used when specific property is identified in the judgment, e.g., replevied property), and, 3) executions in special cases (special execution, e.g., mortgage and lien foreclosures). Paschal Inv. Co. v. Atwater, 174 Okl. 356, 50 P2d 357 (1935).
Priority among executions is determined by § 737, which presents interesting, albeit unsettled, questions of law. That section refers to two or more writs of execution against the same debtor having been “sued out during the term in which judgment was rendered, or within ten (10) days thereafter,” and delivered to the sheriff on the same day. In that instance, no preference is given unless the proceeds are insufficient to satisfy both writs, at which time they will be divided on a pro rata basis determined by the amounts due under the respective writs. In all other cases, the writ first delivered is the first to be satisfied and it is the sheriff’s duty to endorse on the writ the time of its receipt. § 737. Note, however, “terms of court” were abolished in Oklahoma. Okl.Sess.L.1969, Ch. 134, § 2. See, also, Schepp v. Hess, 770 P2d 34 (Okl. 1989).
2. Levy of Execution
A writ of execution is first levied upon the “goods and chattels of the debtor”. If none are found, the writ is endorsed “No goods” and the sheriff is to then levy the writ upon the “lands and tenements of the debtor which may be liable to satisfy the judgment.” § 751. If the real property is encumbered, it is levied upon and appraised. If equity is revealed, the same is sold subject to the encumbrance stated in the appraisal. If no equity appears, it is not sold. § 751.
If the goods or chattels levied upon are claimed by someone other than the judgment debtor, or the sheriff is requested to levy execution on same by the judgment creditor notwithstanding such claim (the implication being he refused to levy on the goods when they were claimed by someone else), the sheriff may require the judgment creditor to post a bond sufficient to pay all costs and damages sustained by the detention or sale thereof. Until that time, the sheriff may refuse to levy against the property. § 755.
If property remains unsold for want of bidders and remains in the sheriff’s hands for lack of time to advertise and sell, or other just cause, for his own security, the sheriff may take a bond from the judgment debtor in an amount deemed sufficient by the sheriff, and the judgment debtor may retain the same to the time of sale with the obligation to produce the property at the time and place for sale, the failure of which would be to suffer forfeiture of the bond. § 756.
The sheriff must return the writ within sixty (60) days from its issuance (§ 802), and when issued to the sheriff of another county, the same is returned by mail to the clerk of the issuing court (§ 815).
As previously noted, the writ should describe the property being executed upon. If not, the sheriff will typically return the writ endorsed “No Property Found”. Accordingly, the judgment creditor would do well to investigate the existence of tangible property subject to seizure, unless the purpose of the writ is to preserve the life of a judgment for an additional five (5) years under § 735 to prevent dormancy.
3. Sale of Personalty
There are no statutes requiring the appraisal of personal property for sale purposes following execution. Reference should, however, be made to the Uniform Commercial Code as to secured property, which is outside the scope of this seminar. There are, therefore, no minimum bids on a typical execution on a judgment. Also note there is no statutory requirement for confirming the sale of personalty. Correspondingly, there is no statutory mechanism for providing a title document to the purchaser without confirmation. It may be possible to get the sheriff to execute a Sheriff’s Bill of Sale if carefully worded to protect him from warranty claims of title, condition, etc.
No sale may take place without written notice executed by the sheriff, describing the goods to be sold, and setting forth the date, time and place of the sale. This notice must be mailed by first class mail to the judgment debtor and all those persons holding interests in the property (e.g., co-owners, secured parties, etc.) if their addresses and names are known, at least ten (10) days prior to the sale. § 757.A.1.a.
Public notice must also be given of the date, time, and place of sale at least ten (10) days prior to the day of sale. This notice must be executed by the sheriff, identify the property, any person having an interest in the property whose actual address is unknown, and designate the person(s) whose unknown successors are being notified. This notice is given by advertisement published in a newspaper published in the county of the sale, or, there being none, by posting in five (5) public places in the county, with at least two (2) of those being in the township where the sale is to be held. § 757.A.1.b. An affidavit of mailing and of publication or posting must be filed in the case. § 757.A.1.c.
At the sale, the sheriff may require a purchaser other than the judgment creditor to post cash or certified funds equal to ten per cent (10%) of the amount bid for the property within twenty-four (24) hours of the sale, excluding Sundays and legal holidays. If he fails to do so, or if he otherwise fails to complete the sale, the sheriff will accept the next highest bid. § 757.B.1. If the property cannot be sold for want of bidders, the sheriff making the return must attach an inventory of the property to the execution, and the judgment creditor may issue another writ directing the property be re-sold. Also see the discussion, supra, concerning § 756 and the sheriff’s re-delivery of the property to the judgment debtor upon a failed sale and the debtor’s posting of an undertaking.
4. Sale of Real Property under General Execution
Once general execution is levied on realty, the sheriff endorses on the face of the writ the legal description of same and appoints three (3) disinterested persons who have taken an oath to impartially appraise the property levied upon. Those appraisers then return to the sheriff a signed estimate or appraisal of the real value of the property. As a practical matter, the sheriff will require the judgment creditor to prepare and submit a form of appraisal which includes the oath, appointment, and return, along with your execution documents. § 759.B. On receipt of the returned appraisal, the sheriff files the same with the court clerk who issued the writ and proceeds to advertise and sell the real property. § 761.
If the underlying deed, mortgage, bill or written contract specifically provides appraisement be waived, the court’s order or judgment should so provide and the same may be sold without appraisement or valuation. In that event, however, no order of sale may issue for a period of six (6) months from the time of the rendition of the judgment which so provides. § 760. Also note the material, supra, allowing the sale of the property subject to a mortgage if equity in the realty exists. § 751.
In the event it appears two-thirds (2/3) of the appraised value of the land levied upon is sufficient to satisfy the execution, with costs, the judgment will not operate as a lien on the residue of the judgment debtor’s estate, or to the prejudice to any other judgment creditor, and no sale may be confirmed for less than two-thirds (2/3) of the appraised value returned. § 762. Note the judgment creditor will ordinarily bid against its own judgment, only paying cash when the judgment is insufficient to fully satisfy its own bid.
Written notice of the sale of realty similar to that for personalty, containing the real property’s legal description and the date, time and place of sale, must be given by first class mail to the judgment debtor and all parties with an interest in the property of record or that are known to the executing party and whose interests are sought to be extinguished, at least ten (10) days prior to the sale, if their names and addresses are known. § 764.A.1. The sale must be conducted at the courthouse in the county in which the realty is located, unless the court having jurisdiction in the case designates another location in that county. § 769. Also note this section prohibits the purchase of real or personal property sold under execution by the sheriff, deputy conducting the sale, or appraiser, either directly or indirectly, and any such purchase is fraudulent and void.
Public notice must be published for two (2) consecutive weeks in a newspaper published in the county where the property is located, or absent such newspaper, a newspaper of general circulation in that county with an advertisement being posted on the door of the courthouse and five (5) other public places in the county, two (2) of which must be within the township where the property is located. The notice must be executed by the sheriff and also state the name of any person having an interest in the property whose interest is sought to be extinguished but whose actual address is unknown, and designate the person(s) whose unknown successors are being notified. § 764.A.2. Similar to personalty, an affidavit of publication from the publisher as well as an affidavit of mailing to reflect of record all notice requirements having been met must be filed in the case. § 764.A.3. Also note, the sheriff may refuse to publish notice of the sale absent prepayment of the printer’s charges, § 767, but before the sheriff may be excused from publishing such notification, demand must be made on the executing judgment creditor, his agent or attorney, provided they reside in the county. § 768.
The sale must not be conducted less than thirty (30) days following the date of first publication. § 764.C. Identical language is contained in § 764.C. to that of § 757.B.1. concerning the deposit of ten per cent (10%) of the purchase price by the successful bidder or failure to close the sale. Following the completion of the sale, the sheriff will file his return of sale in the case. Sales which do not conform to the notice process of § 764 will be set aside on motion by the court to which the execution is returnable. If the realty is not sold at the noticed sale, other executions may issue to sell the property so levied upon. § 770.
5. Confirmation of Sale of Real Property under General Execution
The judgment creditor must next move to confirm the sale under § 765. He does so by filing a motion to confirm the sale, mailing a written notice of the confirmation hearing by first class mail to all those who were required to be noticed with the sale and to the highest bidder at the sale, at least ten (10) days prior to hearing its confirmation. If any of those addresses are unknown, then publication must again occur at least ten (10) days prior to hearing, stating the name of the person sought to be notified of the hearing on confirmation. § 765.A.1. Proof of publication and mailing by affidavit must be filed in the case. § 765.A.2.
Any person filing a written objection to confirmation must mail a copy thereof to all persons who were noticed with the confirmation hearing. § 765.B. Although the statute is actually silent, if you wish to succeed in blocking confirmation, you should also notice the judgment creditor who filed the motion to confirm the sale in the first place. The hearing may be continued by the court to allow adequate preparation to oppose or support the motion, and, if the court “… having carefully examined the proceedings of the officer, is satisfied that the sale has, in all respects, been made in conformity with the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale and shall order that the officer make to the purchaser a deed for such lands and tenements … .” § 765.B. This language suggests an independent duty on the court to look into the regularity of the sale even absent an objection to confirmation. Plant v. Smith, 192 Okl. 165, 134 P2d 965 (1943). An inadequate price, without some fraud or irregularity, is insufficient to block confirmation unless such price is so grossly inadequate as to shock the court’s conscience. City of Wewoka ex rel. North v. Fink, 197 Okl. 623, 173 P2d 936 (1946).
Once confirmed, the judgment creditor should present a certified copy of the Order Confirming Sheriff’s Sale to the sheriff, along with a Sheriff’s Deed, for execution and delivery to the purchaser. If the purchaser is other than the judgment creditor, the Motion and Order should also request, or order, as the case may be, the payment of the purchase price paid to the judgment creditor by the clerk. As a practical matter, the court clerk will pay nothing without a court order directing payment. If the sheriff leaves office or becomes “absent” in the meantime, his successor in office may execute the Sheriff’s Deed. § 772.
§ 765.B. states as follows:
… the officer, on making such sale, shall deposit the purchase money with the clerk of the court from which said writ of execution issued, where same shall remain until the court shall have examined the proceedings as aforesaid [confirmation], when said clerk of the court shall pay the same to the person entitled thereto, agreeable to the order of the court.
This language suggests the sheriff should collect the sale proceeds, or deposit same with the court, at or prior to confirmation. It does not, however, specify at what time (i.e., at the conclusion of the sale). Note also the clerk will retain a “poundage” fee of one per cent 1% of the fund to a maximum of $300.00. Tit. 28, Okla. Stat., § 31. Funds remaining after satisfaction of the judgment are returned to the judgment debtor. § 773.
The sheriff conveys only as good title to the realty as could be conveyed by the judgment debtor. § 766. Essentially, the purchaser gets the property following confirmation without warranty of title and with all imperfections and defects in title, except the Sheriff’s Deed is sufficient evidence of the legality of the sale until proven to the contrary (vacation of the order of confirmation). § 766 also sets forth the requirements of the contents of the deed, which is executed and acknowledged as other recordable instruments.
In the event the underlying judgment is reversed on appeal, the reversal does not affect or defeat the title of the purchaser, but the judgment creditor must make restitution to the judgment debtor of the sale proceeds, with “lawful interest” from the date of sale. § 774. This does not protect a purchaser’s title where the purchaser is the judgment creditor, however. See, Morgan v. City of Ardmore ex rel. Love & Thurmond, 182 Okl. 542, 78 P2d 785 (1938); Arnold v. Joines, 50 Okl. 4, 150 P. 130 (1915).
C. JUDGMENT LIENS AND DORMANCY
Section 706, Tit. 12, Okla.Stat.Supp. 1997, prescribes the method to create judgment liens. Essentially, upon the presentation of a Statement of Judgment to the County Clerk (on the form prescribed by the Administrative Director of the Courts, a sample of which is appended hereto) and the payment of the fee, a judgment lien is created on all real property located within that county.
Most recently, the Oklahoma Court of Appeals (Div. 4), in deciding Halliburton Oil Producing Co. v. Grothaus, et al., supra, Vol. 69, No. 41, OBJ 3784 (Nov. 3, 1998), also found a judgment lien will neither attach to an oil and gas lease nor to the proceeds of any lifted substances or their proceeds, as personal property to which a judgment lien does not attach. “Oil and gas in situ are part of the realty, but when severed from the leasehold they become personal property. An oil and gas lease does not operate as a conveyance of any oil and gas in situ, but constitutes merely a right to search for and capture those substances.” Id., at ¶ 16, p. 3787.
In the past, the decisions were uniform a judgment lien did not constitute a lien against homestead property. See, Kellough v. Neff, 382 P.2d 135 (Okl. 1963), and, Gerlach Bank v. Allen, 152 P. 399 (Okl. 1915). Notwithstanding these cases, title examiners found the situation problematic when examining title for purposes of sale. With the recent amendment to § 706, effective November 1, 1997, however, these cases have been legislatively reversed by providing the judgment lien attaches to homestead property, but judgment liens on a homestead are exempt from forced sale. Left unresolved, however, are the cases which have held the homestead exemption extends to the proceeds of sale if the homestead is sold with a good faith intent to reinvest the proceeds in another homestead and that reinvestment is made within a reasonable time. See, Harrell v. Bank of Wilson, 445 P.2d 266 (Okl. 1968); see also, Farmers’ State Bank of Newkirk v. Hess, 251 P. 73, 120 Okl. 210 (Okl. 1926); State v. Brown, 218 P. 816, 92 Okl. 137 (Okl. 1923); Field v. Goat, 173 P. 364, 70 Okl. 113, 1 A.L.R. 478 (Okl. 1918).
The relationship between judgment liens and homestead property has been a topic of significant litigation in the bankruptcy courts of Oklahoma where debtors seek to avoid the fixing of a judgement (or, in bankruptcy terms, “judicial”) lien as impairing the debtor’s homestead exemption. Judge Richard L. Bohanon, in the Western District, held although attachment of the lien occurs but the judgment creditor is prohibited from enforcing that lien against the homestead, the right to enjoy the homestead is not impaired. Accordingly, he found that lien is not subject to avoidance. See, In re: McKinney-Jones, 219 Bankr. 619 (Bankr. W.D. Ok 1998). Both of the bankruptcy judges in the Northern District have rejected this position and allow the avoidance of the judicial lien. See, In re: McMasters, 220 Bankr. 419 (Michael, B.J., Bankr. N.D. Ok 1998), and, In re: Richardson, 224 Bankr. 804 (Rasure, B.J., Bankr. N.D. Ok 1998).
As previously noted, when an execution is issued to the sheriff for levy, a certified copy is required to be filed in the office of the county clerk of the county whose sheriff holds the execution. § 759.A. Sec. 735 provides that action must be taken within five (5) years of the judgment’s rendition, or the judgment becomes unenforceable. Those statutes were amended effective in November, 1997, to provide that a judgment creditor can extend the life of the judgment for in increments of additional five (5) year periods by issuing either a general execution, garnishment summons, or filing a notice of renewal of judgment (form appended to these materials), and recording a certified copy of same in the office of the county clerk. See, §§ 759 and 735. The cost for filing the notice of renewal of judgment (§ 151.A.14.) is $10.00 (as opposed to $20.00 for sheriff service of an execution and $15.00 for a garnishment), the form is simple and easy to administer. Is there a question?
In Drllevich Construction, Inc. v. Stock, 1998 WL 226282, 1998 OK 39, Okl. 1998, the question arose whether a foreign judgment registered in Oklahoma pursuant to the Uniform Enforcement of Foreign Judgments Act (12 Okla. Stat. 1991 § 719, et seq.) is subject to Oklahoma’s dormancy statute (§ 735, supra). The court, overruling its prior holding in First Denver Mortgage Investors v. Riggs, 1984 OK 36, 692 P.2d 1358, found it should adopt the majority of states in holding that a foreign judgment which is enforceable at the time the judgment creditor registers the foreign judgment in Oklahoma will be considered, for purposes of enforcement, as a new judgment of this state to which Oklahoma’s five (5) year dormancy statute will apply. In rejecting Riggs to the extent it held the dormancy is computed form the date of rendition in the foreign state, Drllevich held the dormancy provisions of § 735 apply from the date of registration.
D. NOTES ON FORECLOSURE
A general execution in a foreclosure action may issue against the judgment debtor’s property, but not until such time as the mortgaged property has been sold under a special execution and order of sale with a deficiency judgment rendered following confirmation under § 686.
Also note Founders Bank and Trust Company v. Upsher, et al., 830 P2d 1355 (Okl. 1992), holding guarantors are not entitled to credit on the lender’s judgment against them for the fair market value of the property sold at sheriff’s sale, only the amount of the sale’s confirmed proceeds. Founders, id., also held under the circumstances there, where the guaranty agreements were limited, it was proper to credit the sale proceeds to the portion of the judgment to which the guarantees did not extend prior to application to the guarantors’ liability under the judgment.
Note, also, Armstrong, et al. v. Kakish et al., 856 P.2d 597 (Okla.App. 1993), where co-makers were sued on a promissory note by bank, who also sought to foreclose on collateral securing the note. Bank obtained joint and several judgments against them for over $1.6M. All but one of the co-makers collectively paid bank $1.4M, purportedly in satisfaction of the judgment, which the bank assigned to them (whom we will refer to as the “Assignees”). The trial court substituted the Assignees as real parties in interest, which the remaining maker (Kakish) appealed and lost. Assignees then attempted to levy execution against the collateral, and Kakish filed a motion to vacate on the grounds the judgment was extinguished when the bank was paid by Assignees.
The trial court vacated the execution and held Assignees were left to pursue their equitable remedies against Kakish. Assignees appealed claiming Kakish was barred by the doctrines of “law of the case” and “res judicata” from attacking their judgment after the Court of Appeals mandate was issued from the first appeal, which the Court rejected for reasons not particularly germane here. Importantly, however, was the second issue of whether the judgment was extinguished upon its assignment.
The Court, quoting Martin v. North American Car Corp. that
The more stable and orderly procedure requires that when a judgment is paid in full by one under legal obligation to pay it, it should be extinguished, and should lose its force and effect as a lien against the property.
Id., at 463. The Kakish Court then found, following testimony by Assignors the payment was intended as full satisfaction of the judgment, upon such payment, the judgment ceased to exist, but that its holding in no way prevented Assignees from pursuing their equitable remedy of contribution against Mr. Kakish.
Statewide Funding Corporation v. Reed, 925 P.2d 578 (Okl.App. 1996) presents the litigating bar with a difficult dilemma. The issue relates to the effect of a bankruptcy case which examines the timeliness of a judgment creditor’s motion for deficiency judgment under Tit. 12, Okla.Stat.1991 § 686, which requires the motion be filed within ninety (90) days of the sheriff’s sale. In Statewide, however, the judgment debtor filed bankruptcy three (3) days after the sale.
Judgment creditor sought and obtained relief from the automatic stay and abandonment of the mortgaged property in order to continue with its foreclosure action in state court as to the abandoned property. The judgment debtor dismissed her bankruptcy case eighteen (18) months after it was filed. Judgment Creditor sought a deficiency judgment by filing its motion thirty-five (35) days after the dismissal of the bankruptcy case.
Accordingly, the automatic stay provided by § 362 of the Bankruptcy Code (Tit 11, U.S.C.) came into play prior to the filing of the motion for deficiency judgment, but ceased to protect the debtor upon the bankruptcy case’s dismissal. The question became one of whether the automatic stay tolled the running of the remaining eighty-seven (87) days of § 686’s requirements to seek deficiency judgment, or, rather, whether § 108(c)(2) of the Bankruptcy Code causes the ninety (90) days of § 686 to run during the pendency of the bankruptcy case, allowing the judgment creditor thirty (30) days following its dismissal to prosecute its deficiency motion. Obviously, the former would allow its prosecution, and the latter would preclude a deficiency judgment as untimely. The majority adopted the former conclusion, which it admits is the minority view.
Statewide was followed in 1997 by Don Huddleston Construction Company v. United Bank and Trust Company of Norman, et al., 933 P.2d 944 (Okl.App. 1997) which addressed the issue of whether the one year “savings” period of 12 Okla.Stat.1991 § 100 is tolled by the automatic stay imposed by the filing of a petition in bankruptcy. Huddleston involved the interplay of § 100 and multiple bankruptcy filings by the debtor. Section 100 allows for the “re-commencement” of any action otherwise timely brought but not adjudicated on the merits within one (1) year of dismissal even though the original statute of limitation may have expired. Huddleston notes the Oklahoma Supreme Court has not addressed the precise question, cited Statewide and notes that a reading of the majority opinion in Statewide, when read together with the dissent, illustrates “the conclusion … the bankruptcy statute does not, in and of itself, stay the running of any statutory periods (here § 100) but that under state law the limitation period may be tolled and the bankruptcy statute does not have the effect of precluding this.”
In short, while the Bankruptcy Code does not toll the running of the statute, it recognizes that state law may suspend the running of the period, which it found was indeed the case. The Huddleston court noted
Where ‘the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues. Lee v. Epperson, 168 Okla. 220, 32 P.2d 309 (1934).
Accordingly, unless and until further clarified by the Oklahoma Supreme Court, it is suggested counsel approach the issue carefully and assume the worst. Debtor’s counsel may prefer to avoid an adverse result by forcing the issue before the bankruptcy court, which is not bound by Statewide or Huddleston.
On a similar note, Mediatech, Incorporated v. Bank IV Oklahoma, N.A., et al., otherwise found at Vol. 68, No. 34, OBJ 2961 (Okl.App. Sept. 20, 1997, decided July 15, 1997), held
Without deciding whether § 686 applies only to foreclosure of mortgages on real property, we hold it does not apply to actions under the UCC, 12A O.S.1991 § 9-501 et seq., where there is no court-ordered sheriff’s sale.
On the issue of priority of liens, see First Community Bank of Blanchard v. Hodges, 907 P.2d 1047 (Okla. 1995), a unanimous opinion of the Oklahoma Supreme Court. Melba and Mansel were divorced, with Mansel awarded certain real property, and Melba a sizable alimony judgment in lieu of property division and a decree-ordered lien to secure its payment against some of Mansel’s real property. Melba filed a certified copy of the decree in the office of the county clerk, and subsequently, Bank obtained a default judgment against husband. Bank perfected its judgment lien pursuant to Tit. 12, Okla.Stat.1991 § 706, which, at that time, required the filing of an Affidavit of Judgment with a certified copy of the judgment attached. Melba did not do this.
Section 706 has been amended several times dealing with the manner in which judgment liens are perfected from simply filing certified copies of the judgment itself with the county clerk, to filing a statement of judgment with certified copy attached, to simply filing a Statement of Judgment. The Court noted those amendments, but they are not central to the import of the decision.
The core of the Court’s decision, however, was its analysis the court’s divorce decree ordering the lien to insure payment of alimony insured payment of future sums to become due and is not an ordinary money judgment. Under the Court’s analysis, § 706 is a general statute intended to give lienable quality to a judgment for the recovery of money, which is not created until compliance with § 706 procedural requirements. Melba did not need to comply with § 706 in order to have the decree impressed with a lien, since the lien was created by force of judicial decree, which is not a general judgment for the recovery of money, and merely filing a certified copy of the divorce decree-judgment in the county clerk’s office where the property is located provides third party notice of the existence of the decree-ordered lien, and therefore priority over subsequent encumbrances. Melba wins. Id., at 1054, 1055.
Also, see, Aetna Finance Company v. Schmitz, 849 P.2d 1083 (Okla. 1993), holding the judgment creditor’s failure to execute and levy within one (1) year of its judgment pursuant to Tit. 12, Okla.Stat.1991 801, waived its judgment lien priority, although otherwise filed prior in time under § 706. Id., at 1084. Interestingly, the Court noted § 801 does not extinguish the judgment lien, but merely repositions it for purposes of priority. Id., at 1085.
Fur purposes of reference on priority issues, please also note the article by Kraettli Q. Epperson, appearing in Vol. 64, No. 39, Oklahoma Bar Journal (10/23/93) at 3195, entitled “Federal Money Judgment Liens Under The Federal Debt Collection Procedure Act: A 40-Year Super-Lien”  and his discussion of that act’s requirements the federal government follow state judgment lien recording practices, on the one hand, and the possible extension of money judgments and money judgment liens in favor of the United States, for a significant period of time, which may affect the judgment creditor’s priority.
More recently, Breeding v. NJH Enterprises, LLC, et al., 1997 WL 254190, Vol. 68, No. 20, O.B.J. 1767 (Okl. App., May 13, 1997) addressed the issue of the competing priorities between a foreclosing bank and the interest of an ex-spouse. In Breeding, id., a divorce action was initiated resulting in an appeal. Thereafter, husband mortgaged real property to the bank. His ex-wife did not file a lis pendens notice of record, but the bank (mortgagee) had actual notice of the pending litigation involving the real property to which it was granted a mortgage. The court held where there was actual notice of the pending action involving the realty, the failure to file the lis pendens notice provided by § 180.1, Tit. 12, Okla. Stat. was immaterial. The court found the lis pendens doctrine to be equitable in nature, and a contrary result would be inequitable. It also found the lis pendens statute applies to “third persons” who in other contexts relate to innocent purchasers for value. Since the mortgagee had actual knowledge of the competing claim, it was not “innocent.”
Section 852 authorizes the court to appoint the sheriff or other “suitable person” a receiver of the property of the judgment debtor and may also forbid the transfer or other disposition of such property. The receiver is vested with the non-exempt property, effects and rights of the judgment debtor with certain powers thereto as the court may order. § 855. The court may also order the delivery to the receiver by the judgment debtor or any other person in possession of notes, bills, accounts, contracts, books or other evidence of indebtedness or right of action of the judgment debtor and enforce such order by attachment or contempt. § 858. This section falls within the general statutes dealing with process in aid of execution (i.e., asset hearings or “HOA’s”). Also note § 1551 also provides for the appointment of receivers in foreclosure actions to preserve the property pending foreclosure, post-judgment to effectuate the judgment, to dispose of or preserve property, etc.
F. PARTNERSHIP CHARGING ORDERS
Tit. 54, Okla. Stat., § 228 allows a judgment creditor of a partner to apply to the court to charge non-exempt partnership interests of the judgment debtor with payment of the judgment debt, with interest, appoint a receiver for a share of the profits or other money due or becoming due the judgment debtor from the partnership, and generally exercise the rights of the partner/judgment debtor. Prior to foreclosure or sale, the charged interest may be redeemed with separate property by any one or more of the partners, or, with partnership property by any one or more partners with the consent of all remaining partners not so charged or whose interests are being sold without causing a partnership dissolution.
 For garnishments related to the collection of child support, see § 1173.1, et seq. Aside from the issue of priority of payment afforded support-related garnishments, this process falls outside the general scope of this seminar. The priority issue is, however, important when establishing priorities in competing garnishments outlined in § 1171.3. This issue should also be kept in mind when addressing earnings assignments for child support issued to employers pursuant to § 1171.3, et seq.
 Pre-judgment garnishments, pursuant to § 1171.B.1., consist of only general garnishments noted, infra. Additionally, § 1171.1.A. specifically exempts from pre-judgment garnishment process wages, salary, bonus’ and commissions for personal services, except as provided for support in a divorce proceeding or other statute. § 1171.1.B. specifically exempts from any garnishment process seventy-five per cent (75%) of all earnings for personal or professional services earned during the last ninety (90) days except for the collection of child support, which mirrors Oklahoma’s general exemption statute contained in Tit. 31, Okla.Stat. §1.A.18, discussed infra. Also note that §§ 1173.A. and 1173.4.A. limit noncontinuing and continuing earnings garnishments to judgment creditors, as well.
 Also note, however, “earnings” was also separately defined prior to the 1995 Amendments, which definitions were not repealed and remains as “For the purposes of [these] section[s] … any form of payment to an individual including, but not limited to, salary, commission, or other compensation, but does not include reimbursement for travel expenses for state employees. See, §§ 1173.A. and 1173.4. Due to the pre-1995 “… any form of payment to an individual including, but not limited to …” language, it is suggested there should be no functional distinction or limitation imposed on § 1170.A.3. by §§ 1173.A. and 1173.4.A.
 In order to simplify the citation process for the purposes of this paper, the initial procedures for each type of garnishment are consistently numbered to provide for general garnishments in § 1173.3, noncontinuing earnings garnishments in § 1173., and, continuing earnings garnishments in § 1173.4.
 The language of the amendment to § 1172.2.A. prior to the 1995 Amendments spoke to “When a garnishment summons is issued in any action subsequent to judgment … .” The 1995 Amendments changed that language to read, in conformity with prior amendments pertaining to judgments, “When a garnishment summons is issued in any action after the judgment is filed … .”
 The statute consistently refers to direct payment to the judgment creditor, in the absence of an attorney. Accordingly, future references will be to the attorney for the judgment creditor, which shall include the judgment creditor appearing without counsel.
 Similarly, as to continuing earnings garnishment liens under § 1173.4.H. Although not specifically so stated, since a general garnishment provides for a garnishment lien (§ 1173.3.F.), perfection establishes its own priority.
 The statute reads, “If the garnishee shall fail to file and deliver … the answer affidavit … appear for deposition, or to answer interrogatories as provided in the order, then the court shall render judgment … .” [Emphasis added.] Id.
 There is no judgment lien on personal property until levied upon by either execution or garnishment, other than non-exempt real property pursuant to the terms of a § 801 recordation. Also, see the discussion, infra, page 39, concerning judgment liens on realty.
 Kakish also noted the contribution issue was pending “… in another case.” Apparently, the question of contribution is one resolved in an independent action. Id., at 599.