ENFORCEMENT OF SUPPORT OBLIGATION

CS 827P Execution on Personal Property: General

01/24/85 Revised 08/07/08 Training Completed 10/14/04

UCA 62A-11-104, 304.1, 312.5, 313, & 319, 78B-5-202, 78B-12-112, 212 ; UCRP 69a & R527-800

 

Statutory Authority

 

In accordance with state law found at U.C.A 62-11-312.5, a child support obligation automatically becomes a judgment, with a lien, as of the date the child support is due.  If the monthly child support obligation in a IV-D case is not paid, the amount of the unpaid balance is automatically and officially recorded as a judgment-lien with the State of Utah Case Registry, which is the Office of Recovery Services Information System (ORSIS).  Subsections 62-11-312.5(1) and (2) and 62A-11-304.1(1) and (h)(iv) contain the following information and requirements regarding judgments, liens, and enforcement of liens:

 

     U.C.A 62-11-312.5 - “(1) Each payment or installment of child support is, on and after the date it is due, a judgment with the same attributes and effect of any judgment of a district court in accordance with Section 78B-12-112 and for purposes of Section 78B-5-202.
     (2) (a) A judgment under Subsection (1) or final administrative order shall constitute a lien against the real property of the obligor upon the filing of a notice of judgment-lien in the district court where the obligor's real property is located if the notice:
     (i) specifies the amount of past-due support; and
     (ii) complies with the procedural requirements of Section 78-22-1.
     (b)
Rule 69, Utah Rules of Civil Procedure, shall apply to any action brought to execute a judgment or final administrative order under this section against real or personal property in the obligor's possession.”

 

     U.C.A 62-11-304.1 - “(1) The office may, without the necessity of initiating an adjudicative proceeding or obtaining an order from any other judicial or administrative tribunal, take the following actions related to the establishment of paternity or the establishment, modification, or enforcement of a support order, and to recognize and enforce the authority of state agencies of other states to take the following actions:”
    
(h) secure assets to satisfy past-due support by:
     (i) intercepting or seizing periodic or lump-sum payments from:
     (A) a state or local government agency, including unemployment compensation, workers' compensation, and other benefits; and
     (B) judgments, settlements, and lotteries;
     (ii) attaching and seizing assets of an obligor held in financial institutions;
     (iii) attaching public and private retirement funds, if the obligor presently:
     (A) receives periodic payments; or

     (B) has the authority to withdraw some or all of the funds; and

     (iv) imposing liens against real and personal property in accordance with this section and Section 62A-11-312.5.   (Bold emphasis added.)

 

Once the information is recorded on ORSIS, the judgment-lien becomes subject to various enforcement remedies; i.e., seizure of real or personal property, even if the non-custodial parent (NCP)/obligor is currently making payments on the arrears.  Subsections 78B-12-212(3) contains the following additional information regarding enforcement of the lien:

 

     “(3) (a) The office may issue a writ of garnishment against the obligor's personal property in the possession of a third party for a judgment under Subsection (1) or a final administrative order in the same manner and with the same effect as if the writ were issued on a judgment of a district court if:
     (i) the judgment or final administrative order is recorded on the office's automated case registry; and
     (ii) the writ is signed by the director or the director's designee and served by certified mail, return receipt requested, or as prescribed by Rule 4, Utah Rules of Civil Procedure.
     (b) A writ of garnishment issued under Subsection (3)(a) is subject to the procedures and due process protections provided by Rule 64D, Utah Rules of Civil Procedure, except as provided by Section 62A-11-316.”

NOTE:   Once a week ORSIS automatically reports judgment-liens electronically to the Administrative Office of the Courts (AOC) for each county in the State of Utah.

 

If you are unable to collect on a judgment-lien, and the NCP/ obligor has personal property available, you may choose to execute on personal property belonging to the NCP.  However, you must review the case first and decide if an execution is the most effective method of satisfying the balance owed on the case.  Because an execution is complex and may be expensive, it is generally only considered when it is the only enforcement action available and/or all other appropriate enforcement actions have been exhausted.  Therefore, you must consult with your Manager before proceeding with an execution.  You may send the “Notice of Intent to Execute on Assets” letter to the NCP to notify him/her of your intent to execute on personal property prior to referring the case to the Attorney General’s Office (AGO).   

 

Definitions

 

1.                  National Automobile Dealers Association (NADA) Guides  A guide to assess the value, specifications and information of new and used cars, trucks, classic, collectible and special interest cars, motorcycles, snowmobiles, all terrain vehicles (ATV’s), personal watercraft, boats, recreational vehicles, aircraft, and manufactured housing.  The NADA guide is used to assess the average retail value of the vehicle you want to execute on and can be accessed two different ways:

a.                   book – a copy of the NADA book (small yellow book) should be available to you.  For more information, ask your team manager; and,

a.                   internet – you may access the NADA through the internet at http://www.nada.com.

 

2.                  Obligee (as applicable to this policy):  the person to whom the debt is owed.  For example the State of Utah or the Non-IV-A custodial parent (CP).

 

3.                  Obligor/debtor (as applicable to this policy):  the person against whom a debt has occurred and a judgment is granted – the judgment debtor.

 

4.                  Personal property:  defined as:

a.         tangible property such as vehicles, jewelry, tools, portable equipment, etc. and,

b.         liquid, cash, or “paper” assets, such as checking or savings accounts, insurance settlements, stocks, bonds, etc. 

 

5.                  Public Safety Vehicle Registration (PSVR) – The Utah Division of Motor Vehicles maintains information about all vehicles registered in the State of Utah; i.e., title, registration, lien holder, etc.  This information is maintained on the Department of Motor Vehicles (DMV) data base. 

 

6.                  Real Property:  Land, buildings, and improvements attached thereto, such as house, commercial buildings, fencing, storage sheds, etc.

 

NOTE:  Currently CSS does not execute on real property.

 

7.                  Vehicle Identification Number (VIN)  The serial number for the vehicle that identifies the country where the vehicle was built, the manufacturer, the year of the car, the brand, body style, engine size and type, etc.  The VIN is located in the engine compartment of the car or in the bottom corner of the front window.

 

Execution Criteria

 

A case must meet the criteria listed below before you may refer it to the Attorney General’s Office (AGO) for an execution on personal property.

 

1.                  The case meets the general enforcement criteria.

 

2.                  The auto enforcement field on ORSIS must be set to “Y” (Yes).  

 

3.                  All appropriate administrative enforcement remedies have previously been attempted, e.g., a lien-levy against a savings account. 

 

4.                  The case meets all of the AGO referral criteria.

 

5.                  There is a valid location or a verified residential address for the obligor/NCP which can be used for personal service.   

 

NOTE:  A post office box (P.O. Box) or incomplete address is not sufficient.

 

6.                  The provisions of the existing order may be enforced as is; i.e., there is not a criminal restitution order or a judicial order that:

a.                   changes the custody of the child(ren); or

b.                  prohibits enforcement of:

i.                     the child support obligation; or,

ii.                   the arrears owed under the obligation.

 

7.                  The obligor/NCP has not become physically disabled since the entry of the order.

 

8.         The value of the personal property (including joint property) exceeds the costs associated with an execution.  You have reviewed the costs with the team manager and the team manager has agreed that an execution is cost effective.

 

Case Referred to Attorney General’s Office 

 

Once a case is referred to the AGO for execution on personal property, the physical case file remains with the AGO’s until the property is sold or a repayment agreement is made and the property is returned to the obligor/NCP.

 

The AGO is responsible for taking the steps listed below.

 

1.                  Review the file – reviews the file and decides if any other documentation is needed or required prior to the execution. 

 

2.                  Prepare documents – prepares the following documents and forwards them to the appropriate Constable/Sheriff for personal service:

a.                   Praecipe;

b.                  Writ of Execution; and

c.                   Keeper’s Receipt, if appropriate.

 

3.                  Send Notice – sends a concurrent notice to:

a.                   the obligor/NCP;

b.                  lien holders; and,

c.                   all other parties with a recorded interest in the property, if appropriate.

 

4.                  Negotiate payment/settlement/repayment agreement – negotiates a payoff of the arrears debt in full, or a partial settlement or repayment agreement with the obligor/NCP in accordance with state law, U.C.A. 62a-11-319, “The office may, at any time, release a support lien, wage assignment, attachment, or garnishment on all or part of the property of the obligor, or return seized property without liability, if assurance of payment is considered adequate by the office, or if that action will facilitate collection of the support debt. However, that release or return does not prevent future action to collect from the same or other property. The office may also waive provisions providing for the collection of interest on accounts due, if that waiver would facilitate collection of the support debt.

 

NOTE:  The AG should involve the agent and/or team manager in negotiations for a partial settlement or repayment agreement.

 

5.                  Document actions – documents all appropriate actions on the case, which includes contact with the obligor/NCP, his/her attorney, the CP, and the Constable/Sheriff.

 

NOTE:  The CSS agent continues to be responsible for monitoring the progress of the case and responding to a request for status by the obligee/CP or the initiating state.   

 

Constable/Sheriff’s Responsibility

 

The Constable/Sheriff will attempt to serve the obligor/NCP and seize the property within three working days of receiving the execution documents and the “ORS Process Service Worksheet.” 

 

If the property cannot be located, the Constable/Sheriff will return the “Process Service Worksheet” back to CSS indicating that they were not able to locate the property.  The case with the information is returned to the agent assigned to the case who will:

 

1.                  secure a better address, if available; and,

 

2.                  return the case back to the AGO for service.

 

Release Agreement

 

If the AG negotiates a full or partial settlement, or makes a repayment agreement  with the obligor/NCP, and the property is to be released to the obligor/NCP, an agreement outlining the terms of the release must be completed and signed by the obligor/NCP, the appropriate AGO and/or the agent negotiating the agreement..  The release agreement must include the following information:

 

1.                  the settlement amount or the monthly payment amount if arrangements are made for repayment; e.g., $300 per month for six months;

 

2.                  the total amount of costs involved with the execution; i.e., Constable, storage fees, etc.; and,

 

3.                  the name of the individual who is responsible for paying the costs of the execution; i.e., obligor/NCP.

 

The obligor/NCP must sign the agreement before the personal property can be released.

 

Personal Property Execution Sales

 

If the obligor/NCP is unable or unwilling to negotiate a satisfactory repayment agreement, the AGO will contact the Constable/Sheriff and direct him/her to conduct a sale of the property.  The Constable/Sheriff is responsible for posting notice of the sale according to the laws of the states.  All execution sales must be conducted during a public auction and sold to the highest bidder.  All ORS employees, including AGO employees, and members of their household are prohibited from bidding on the sale of any property executed on by ORS.