[WSBARP] Template for Petition for Order Extending Judgment
JOHN J SULLIVAN
sullaw at comcast.net
Fri Feb 11 15:06:54 PST 2022
Yes, there are two Division 3 cases, Jones unpublished and Morgan published, illustrating the two opposite approaches judgment creditors have. But neither directly raised the issue I'm curious about, and the problem of the case I'm familiar with apparently was present in neither. Nobody in either case questioned whether the amount calculated for the extension was accurate.
In the particular case I'm familiar with it didn't matter either and was never brought before the court because the judgment debtor was insolvent the entire twenty years.
But what still concerns me is that the Petition and Order to extend the judgment an additional ten years stated a judgment dollar amount that was thousands of dollars higher than the actual obligation because payments on the judgment made during the first ten years were ignored. If ex parte presentation is just fine, does that mean the judgment creditor can exercise the judgment for the higher erroneous amount (including interest on the higher principal)? Would there be a remedy later on when enforcement of the judgment was being attempted?
So I'm still wondering, if ex parte ministerial presentation is all that is required and due process is irrelevant, why did the legislature even bother with the extension procedure? Why not just make all judgments twenty years long and be done with it? That would have eliminated the possibility of errors, unintended or not, at the mid-point. Can a judgment debtor remedy a mid-point mistake later to prevent over-execution on the judgment?
Maybe I'm over-thinking this, I suppose. And I won't belabor it any further in this thread. But if the judgment debtor in my case had become solvent, an injustice might have occurred just because there had been no opportunity to correct the miscalculation at the extension hearing. Why not provide notice (even if by publication if whereabouts unknown)?
John J. Sullivan
> On 02/10/2022 6:37 PM Michael Kelly <mike at soundlawfirm.com> wrote:
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> Division III gave this a decent depth of treatment in an unpublished opinion (attached).
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> Michael Kelly | Attorney
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> Direct: 360-529-0808
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> mike at soundlawfirm.com mailto:mike at soundlawfirm.com
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> From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> on behalf of JOHN J SULLIVAN <sullaw at comcast.net>
> Date: Thursday, February 10, 2022 at 4:27 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>, msafren at jennylinglaw.com <msafren at jennylinglaw.com>, WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> Subject: Re: [WSBARP] Template for Petition for Order Extending Judgment
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> Listmates:
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> First, I have a Petition and an Order I've used to extend judgments that are nearly identical to those offered by Mark and Paul, and I too haven't used them in many, many years. I probably cribbed them from the WA Practice Manual.
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> But if I can interpose a follow up question, I would like to put out a question I've wondered about for many years: what is the procedure for extending a judgment an additional ten years? Is it merely ministerial (in which case why not just make the original judgment good for twenty year). Or does it require notice and an opportunity to be heard by the judgment debtor?
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> I've seen attorneys back in the day send a paralegal with the Petition and Order to Ex Parte in Seattle at noon of the final day of the first ten year period, simply presenting it to the Commissioner, without notice to the judgment debtor. In one particular case I am familiar with, the outstanding amount of the judgment was wrong on the Petition and Order because the attorney had not been aware of certain payments made by the judgment debtor during the first ten year period, so going forward the principal amount of the extended judgment was erroneous, and interest was accruing on that erroneous amount.
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> Contrarily, the only appellate decision I've found describing how to proceed with extension is the State v. Morgan case of Div. 3, attached. The request for extension was brought by the Yakima County Prosecutor's Office on a criminal restitution judgment. In it, the Prosecutor, IMHLO, proceeded the right way, in compliance with the Due Process Clause - the office brought a show cause motion, providing the judgment debtor with notice and an opportunity to be heard. Under the particular facts of the Morgan case, this was complicated, naturally, by the judgment debtor's incarceration. But if that procedure had been followed in the case I am familiar with, the judgment debtor probably would have appeared and corrected the principal amount for the prior payments. If you do not provide notice and an opportunity to be heard, is the extension vulnerable to attack on constitutional grounds?
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> What has been your practice/experience dealing with others?
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> John J. Sullivan
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> > On 02/10/2022 7:08 AM msafren at jennylinglaw.com wrote:
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> > Happy Thursday Everyone:
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> > Does anyone have a template for a petition for order extending judgment that they could share with me? I have a client that has a judgment which is rapidly nearing the 10 year mark and will need to be extended for another 10 years pursuant to RCW 6.17.020.
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> > Thank you in advance!!!
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> > Warmest regards,
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> > Michael S. Safren, Esq.
> > Attorney at Law
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