And, all those builders, contractors, investors, and so many others who were broke in 2010/2011 but who turned things around when Nashville real estate, business, and construction boomed in 2015 (and beyond)?
They’ve been waiting. Hoping that you’d forget about them. Hoping that you’d do nothing to renew your judgment.
Part of what makes this Creditors Rights blog so popular is that I keep it an objective discussion of the law. You don’t see me use it to solicit business. (Well, overtly.)
But, for today, I’ll say this: If you have a box of judgments that you haven’t touched for years…Call or e-mail me immediately. There may still be time.
I’m seeing it happen every day. Big judgments are expiring, and debtors are ridding themselves of millions dollars’ worth of judgment liens.
Once upon a time, the creditor probably got frustrated by the dead-ends (or maybe the expensive lawyers spinning their wheels while billing by the hour). Those old files got put in a file cabinet. Maybe the banker switched banks. Maybe the bank got sold.
But, if you don’t dust off those old files, you are probably leaving money on the table. If you haven’t looked at those old files lately, it may be too late.
Under new(-ish) Rule 69.04, this can be done via Motion, but the Motion itself must be filed prior to the expiration of the judgment. So, Tennessee creditor rights attorneys, the burden is on you to make sure you’re making a list and checking it twice, looking for judgments that are nine years old, right?
What happens if your law firm gets the judgment for a client but fails to renew the judgment?
In that case, the law firm obtained a judgment, generally discussed the 10 year requirement with the client, and, years later, no renewal request was made; the clients sued for malpractice.
There’s a lot to unpack in this case, but here’s my quick take-away:
When you get a judgment for a client, tell them that it will expire in ten years. As part of that message, remind them that people change firms, lawyers die, files get closed, files get dormant and sent to storage, things change, but, no matter what happens, if they want you to renew the judgment in ten years, they have to call you and specifically ask you to do it. Your representation does not necessarily include this renewal request, unless you and the client agree it does.
That was a decisive fact here, that the law firm had put the client on notice that specific action was needed to renew this judgment before ten years passed. As that ten year mark approached and passed, the client didn’t raise the issue, either by confirming that the firm did it or, alternatively, suing them for malpractice within one year of the failure to renew it.
So, in a perfect world, we calendar up all our judgments for renewal and we discuss the action with our clients in advance and mutually agree on an engagement for a renewal.
But, in reality, a lot of things can change in ten years. A good practice is to make sure that the client understands that it has a responsibility in ten years to notify you that it wants you to take this action.
A few of you e-mailed me to ask about the timing of filing a motion to extend the judgment for another ten years. Specifically, does the motion have to be granted in the ten year period, or is it enough to simply file the motion during the ten year period?
The answer is contained in Rule 69.04.
As long as a motion to extend is filed “[w]ithin ten years from entry of a judgment,” a judgment creditor may “avoid having the judgment become unenforceable by operation of Tenn. Code Ann. § 28-3-110(a)(2).” See Tenn. R. Civ. P. 69.04 Advisory Comm. cmt. to 2016 revision.
Also, look at In re Hunt, 323 B.R. 665, 669 (Bankr. W.D. Tenn. 2005), which says “it is not essential that the debtor receive these pleadings within the ten-year period, only that the renewal pleading be filed within that time.”
To be clear, it’s my interpretation that Tenn. R. Civ. P. 69.04 does not require the order extending the judgment for the additional ten-year period to be entered within ten years from the entry of the old judgment. But you have to file that Motion to Renew before the ten years expires.
A few months ago, I warned you all that Tennessee judgments are only enforceable for ten years and, if you have a file of uncollected judgments, you might need to check your drawers. If you do a lot of creditors rights law work (like me), then you have about ten drawers full of unpaid judgments, so this is a big deal.
The Tennessee legislature may saw this issue coming, because, in 2016, they simplified the process by which a judgment creditor can renew (extend) the life-span of a judgment. The revisions to Tenn. R. Civ. P. 69.04 provide that the creditor:
Within ten years from the entry of a judgment, the creditor whose judgment remains unsatisfied may file a motion to extend the judgment for another ten years. A copy of the motion shall be mailed by the judgment creditor to the last known address of the judgment debtor. If no response is filed by the judgment debtor within thirty days of the date the motion is filed with the clerk of court, the motion shall be granted without further notice or hearing, and an order extending the judgment shall be entered by the court. If a response is filed within thirty days of the filing date of the motion, the burden is on the judgment debtor to show why the judgment should not be extended for an additional ten years. The same procedure can be repeated within any additional ten-year period.
So, long story short, now, it’s done by Motion and without the prior “show cause” process used in the past (and, notably, in the same case docket as the original action).