About Bill -- Links
SENATE BILL NO. 203
INTRODUCED BY S. BARTLETT, M. NOENNIG, M. HALLIGAN
AN ACT REVISING THE LAWS GOVERNING EXECUTION OF JUDGMENT; PROVIDING A PROCEDURE FOR THE JUDGMENT DEBTOR TO CLAIM AN EXEMPTION FROM AN EXECUTION OF JUDGMENT; PROVIDING A PROCEDURE FOR ISSUANCE OF A WARRANT OF EXECUTION; ALLOWING A SHERIFF OR LEVYING OFFICER TO ACCEPT PAYMENT BY A METHOD OTHER THAN CASH AT THE SALE OF THE PROPERTY; AMENDING SECTIONS 25-13-301, 25-13-402, 25-13-708, AND 25-13-709, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Notification of seizure. (1) After the sheriff or levying officer has executed upon the property of a judgment debtor, a notice of seizure must be served by the sheriff or levying officer upon the judgment debtor within 5 days of seizure. The notification must:
(a) inform the judgment debtor that certain described property or money of the judgment debtor's was seized to satisfy a judgment against the debtor;
(b) state the case name, the date of judgment, and the name of the judgment creditor;
(c) advise the judgment debtor that the judgment debtor may be entitled to claim an exemption from execution on the property as described in part 6 of this chapter or other provisions of state or federal law; and
(d) state the procedure by which the judgment debtor may claim an exemption and file a request for an exemption hearing.
(2) The notification may be made by personal service or by United States mail, postage prepaid, to the judgment debtor's last-known address. If service is by mail, service is completed on the date the sheriff or levying officer places the notification in the mail.
Section 2. Claiming exemption -- process -- time for hearing. (1) To claim an exemption from execution, a judgment debtor shall file a request for a hearing with the court that issued the execution. The request must be in writing, and a copy of the request must be mailed by the judgment debtor on the date of filing to the judgment creditor or the judgment creditor's attorney and to the sheriff or levying officer. The request must be filed within 10 days, excluding weekends and holidays, of the date of:
(a) the judgment debtor's receipt of notification of execution, if notification was by personal service; or
(b) the date notification was mailed to the judgment debtor pursuant to [section 1(2)].
(2) If the judgment debtor does not file a request for an exemption hearing within the period provided for in subsection (1), the judgment debtor may not claim an exemption in the seized property.
(3) A court that receives a request for an exemption hearing shall conduct the hearing within 10 days, excluding weekends and holidays, from the date of receipt of the request.
(4) The court shall forward the order determining the judgment debtor's exemption claim to the sheriff or levying officer.
Section 3. Warrant of execution -- requirements -- penalties. (1) If there is reason to believe that there is personal property subject to execution that is located in the judgment debtor's residence, the judgment creditor or the judgment creditor's attorney may file an application for a warrant of execution with the court.
(2) The application must be supported by an affidavit from the judgment creditor or the judgment creditor's attorney:
(a) stating that a writ of execution has been issued and returned unsatisfied in whole or in part;
(b) stating that the affiant has reason to believe that there is property subject to execution in the possession of the judgment debtor in the judgment debtor's residence;
(c) stating that there is no other property of the judgment debtor available for levy and execution; and
(d) describing the property sought and the place and the purpose of the execution.
(3) If the judge determines that reasonable cause exists, the judge may issue a warrant of execution authorizing the sheriff or levying officer to enter the residence and levy upon property subject to execution.
(4) A sheriff or levying officer may condition service of a writ of execution and levy on property located in an area other than the judgment debtor's residence upon the judgment creditor's securing a warrant of execution in accordance with subsection (1) when the sheriff or levying officer believes the area is subject to a reasonable expectation of privacy.
Section 4. Section 25-13-301, MCA, is amended to read:
"25-13-301. Form and contents of writ. (1) The writ of execution must:
(a) be issued in the name of the state of Montana, sealed with the seal of the court, and subscribed by the clerk;
(b) be directed to the sheriff or levying officer;
(c) intelligibly refer to the judgment, stating the court and the county where it was entered and, if it is for money, the
thereof of money and the amount actually due thereon on the judgment; and
(d) require the sheriff or levying officer to act substantially as provided in this part.
(2) In executions, the amount
thereof of the execution must be computed and stated as near as may be possible in dollars
and cents, rejecting fractions of a cent.
(3) A writ of execution served upon an employer of the judgment debtor must be accompanied by a document that reasonably describes the exemptions from execution provided in 25-13-614."
Section 5. Section 25-13-402, MCA, is amended to read:
"25-13-402. How writ executed. (1) The sheriff or levying officer
must shall execute the writ against the property of
the judgment debtor no later than 60 days after receipt of the writ by:
(a) levying on a sufficient amount of property, if there
be is sufficient property ,;
(b) collecting or selling the things in action
(c) selling the other property and paying to the
plaintiff judgment creditor or his the judgment creditor's attorney so as
much of the proceeds as will satisfy the judgment.
(2) Any proceeds in excess
in the proceeds over of the judgment and accruing costs must be returned to the judgment
debtor unless otherwise directed by the judgment or order of the court. When the sheriff or levying officer determines that
there is more property of the judgment debtor than is sufficient to satisfy the judgment and accruing costs, within the view of
the sheriff or levying officer , he must shall levy only on such the part of the property as that the judgment debtor may
indicate if the property indicated be amply is sufficient to satisfy the judgment and costs.
(3) With respect to earnings of a judgment debtor, an employer shall respond to the levy based upon the earnings accrued to the end of the regular pay period in which the levy occurred.
(4) Except for perishable property, the sheriff or levying officer shall hold any property or money levied upon for 10 days, excluding weekends and holidays, following notification of execution upon the judgment debtor. After that time, the sheriff or levying officer may sell the property and pay the money to the judgment creditor.
(5) If the first levy is not sufficient to satisfy the writ, the sheriff or levying officer may levy, from time to time and as often as necessary, within the 60 days until the judgment is satisfied or the writ expires."
Section 6. Section 25-13-708, MCA, is amended to read:
"25-13-708. Conveyance of personal property capable of manual delivery. When the purchaser of any personal
property capable of manual delivery pays the purchase
money price, the officer making the sale must shall deliver to the
purchaser the property and, if desired, execute and deliver to him the purchaser a certificate of the sale. Such The certificate
conveys to the purchaser all the right which rights that the debtor had in such the property on the day the execution or
attachment was levied."
Section 7. Section 25-13-709, MCA, is amended to read:
"25-13-709. Conveyance of personal property not capable of manual delivery. When the purchaser of any personal
property not capable of manual delivery pays the purchase
money price, the officer making the sale must shall execute and
deliver to the purchaser a certificate of sale. Such The certificate conveys to the purchaser all the right which rights that the
debtor had in such the property on the day the execution or attachment was levied."
Section 8. Codification instruction. [Sections 1 through 3] are intended to be codified as an integral part of Title 25, chapter 13, and the provisions of Title 25, chapter 13, apply to [sections 1 through 3].
Section 9. Effective date. [This act] is effective on passage and approval.
Section 10. Applicability. [This act] applies to an execution of judgment commenced on or after [the effective date of this act].
- END -
Latest Version of SB 203 (SB0203.ENR)
Processed for the Web on April 1, 1999 (10:06AM)
New language in a bill appears underlined, deleted material appears stricken.
Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of the bill for the bill's primary sponsor.
Status of this Bill | 1999 Session | Leg. Branch Home
This bill in WP 5.1 | All versions of all bills in WP 5.1
Prepared by Montana Legislative Services