creditor rights – Creditors Rights 101

It’s a Bird, It’s a Plane, It’s a Super Lawyer

I’m generally pretty skeptical of awards and law-honors. Except, you know, when I receive them.

Accordingly, I’m super proud to let you know that I’ve been named a Mid-South Super Lawyer for Creditor-Debtor Rights, Business Litigation, Banking, and Real Estate.

According to Super Lawyers, Mid-South Super Lawyers are selected through a multi-phased process, which includes independent research, peer nominations and peer evaluations. The list is produced by Super Lawyers, a national rating service that includes more than 70 practice areas.

They also name “Rising Stars,” which is an honor for younger attorneys who have the best years of their career ahead of them.

Honestly, while it’s great to receive any honor, I sort of which I still qualified for the young lawyer awards. Oh well. Up, up and away to the Courthouse.

What to do about a Late Filed Garnishment Response: An Employer Remains Liable for Monies Paid

I file wage garnishments all the time on my Tennessee judgments.

If you know where a defendant works, Tennessee law allows a judgment creditor to garnish the debtor’s wages for payment toward the judgment. (See Tenn. Code Ann. § 29-7-101). Without boring you with the details (see this earlier post instead), an employer then is required to pay about 25% of the employee’s wages to the Court Clerk, who then holds the wages and disburses them to the creditor.

In the event the employer fails to respond to the garnishment, the creditor can seek a judgment against the employer itself for the full amount of the judgment (not just 25% of it), which, clearly, is an awesome way to actually get your money.

I’ve explained this process before: you get a “Conditional Judgment” against the employer and then you issue a Scire Facias, which requires the employer to come to Court and “show cause” why it shouldn’t be a “final” judgment.

This sounds great, but nine times out of ten, the employer shows up in response and files (finally) an answer. Under Tennessee case law, a late filed response is good enough to stop the process and avoid a “final” judgment being entered. Last week, the Tennessee Court of Appeals issued a great opinion in Emrick v Moseley (July 30, 2014), reviewing this entire process.

So, if a conditional judgment is considered a “wake up call” to prompt a response from an employer, then what do you do about the money that the employer should have paid to the Clerk? Two weeks ago, I had this exact case and argued that, under the existing case law, the cow was out of the barn and the employer’s only obligation is to comply with future obligations (i.e. withhold future wages).

I was wrong. That’s where the Emrick case is so good. Via dicta, the Emrick Court says that the employer has exposure under Tenn. Code Ann. § 29-7-112 for any money that it should have paid in, if it had timely responded.

So, no, you can’t get a judgment for the full amount of the debtor’s judgment, but you can get a judgment for the garnishment amounts that should have been withheld.

This is good news for creditor attorneys, and, even though I was wrong on this issue in the past, I’m glad to have been wrong.

Computation of Time: How Do You Count “10 Days” for a General Sessions Court Appeal in Tennessee?

Everybody knows that, in Tennessee General Sessions Courts, you have a right to file a de novo appeal in ten days. But, lawyers sometimes scratch their heads on how to count ten days. Is it business days? Is it calendar days?

Tenn. Code Ann. § 27-5-101 provides the Answer:

Any person dissatisfied with the judgment of a recorder or other officer of a municipality charged with the conduct of trials, in a civil action, may, within ten (10) entire days thereafter, Sundays exclusive, appeal to the next term of circuit court.

So, under the statute, you use calendar days but you exclude any intervening Sundays.

Also, see Tenn. Code Ann. § 1-3-102:

The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.

So, if the tenth day falls on a Saturday, Sunday, or a legal holiday, the deadline rolls forward.

Ok, last question, what’s a “legal holiday” in Tennessee? See Tenn. Code Ann. § 15-1-101:

January 1; the third Monday in January, “Martin Luther King, Jr. Day”; the third Monday in February, known as “Washington Day”; the last Monday in May, known as “Memorial” or “Decoration Day”; July 4; the first Monday in September, known as “Labor Day”; the second Monday in October, known as “Columbus Day”; November 11, known as “Veterans’ Day”; the fourth Thursday in November, known as “Thanksgiving Day”; December 25; and Good Friday; and when any one (1) of these days falls on Sunday, then the following Monday shall be substituted; and when any of these days falls on Saturday, then the preceding Friday shall be substituted; also, all days appointed by the governor or by the president of the United States as days of fasting or thanksgiving, and all days set apart by law for holding county, state, or national elections, throughout this state, are made legal holidays, and the period from twelve o’clock (12:00) noon to twelve o’clock (12:00) midnight of each Saturday which is not a holiday is made a half-holiday, on which holidays and half-holidays all public offices of this state may be closed and business of every character, at the option of the parties in interest of the same, may be suspended.