Opinion
Civil No. 93J-03-241J.
Date Submitted: November 9, 2006.
Date Decided: January 29, 2007.
Upon Consideration of Defendants' Motion to Remove Judgment.
GRANTED.
Clark C. Kingery, Esquire, Casarino, Wilmington, Delaware, Attorney for Plaintiff.
Donald J. Gibson Sr., New Castle, Delaware, Pro Se Defendant.
Having reviewed the original order, a revised version has been issued correcting the year of the decision and correcting the defendant's first name. This is the revised opinion.
INTRODUCTION
Donald Gibson, Sr. has filed a Motion to Remove Judgment on behalf of himself and his now deceased son, Donald J. Gibson Jr. (hereinafter collectively referred to as "Defendants"). This action arises as a result of a 1994 judgment entered against them for default on a loan. Following this judgment, Plaintiff secured a wage attachment on Gibson Sr.'s employer in 1996. Plaintiff, therefore, argues that Defendants owe unpaid portions of the judgment, despite the expiration of this judgment in 2004. In general, the Court finds that Plaintiff's argument lacks merit. Because a wage attachment does not survive the expiration of judgment, Defendants' Motion to Remove Judgment is GRANTED.FACTS
Plaintiff Gamles Corp. ("Plaintiff") made a mortgage loan to Gibson Jr. on February 20, 1991 in the amount of $40,000 payable at the rate of 10.5%. Following Gibson Jr.'s default on the loan, a judgment was entered against Defendants on January 14, 1994 for: "$38,110.80 and $4,335.11 accrued interest to date together with interest thereon at 10.5% per annum from February 24, 1992. Plus attorney fees of $2,122.30."Plaintiff did not renew this judgment lien on Defendants' real estate within ten years of entry. Nevertheless, in 1996, Plaintiff secured a wage attachment on Gibson Sr.'s employer, Ogborne Waste Removal and David G. Ogborne. The writ of attachment states that the employer must "continue this attachment until the amounts that the defendant owes have been paid." The writ, thereby, states that Defendants owe money on a debt of $38,110.80 and accrued interest of $4,335.11. According to Gibson Sr.'s September 17, 2000 earnings statement, his employer made a garnishment in the amount of $38,536.66. No other payment has been made since this time.
Writ of Attach., J. No. T-16 047.
At the October 31, 2006 hearing, Gibson Sr. stated that the house, for which his son originally took the $40,000 mortgage loan, has significantly decreased in value. He submitted a current appraisal of the home upon the request of this Court. According to the November 9, 2006 appraisal, Defendants' home is worth between $15,000 and $18,000 in today's market.
The Court notes that the realtor's appraisal also states that several homes in the same neighborhood have recently sold in the range of $130,000. Defendant can increase the value of his home by making significant renovations such as a new roof and heater.
PARTIES' CONTENTIONS
Defendants argue that judgment "has expired". Plaintiff acknowledges that judgment has lapsed because it did not renew the judgment lien within ten years of entry. However, Plaintiff argues that judgment has not expired and cites case law to support this contention. He states, "In Delaware there is no statute of limitations as to judgments or actions on judgments."Defendants also argue that judgment "has been paid in full". According to Defendants, his wages were garnished in 1996 and as of 2005, the judgment was paid in full. The September 2000 earnings statement provided by Gibson Sr. reveals a garnishment of $38,536.66. However, Plaintiff contends that there remains a balance due in the approximate amount of $32,000. The Account Statement reveals that payments received from Gibson Sr. between September 14, 1991 and October 1, 1999 were insufficient to cover both interest and principal, and as a consequence the balance on the account grew to a high of $52,504.38 before being reduced to the current balance.
Def. Mot. to Remove J. at 1.
DISCUSSION
Pursuant to 10 Del. C. § 4711, the time limitation on the duration of a lien on real estate is 10 years. This section states in part:
No judgment for the recovery of money entered or recorded in the Superior Court. . shall continue a lien upon real estate for a longer term than 10 years next following the day of entry or recording of such judgment, . . . . unless, within the term of 10 years, the lien of such judgment is renewed and continued . . .
Because Plaintiff did not renew the judgment within 10 years of entry, the January 13, 1994 judgment has, therefore, expired under 10 Del. C. § 4711.
The sole issue before this Court is whether a wage attachment survives the expiration of a judgment. The Court cannot find authority limiting the duration of a wage attachment in Delaware. Other jurisdictions, however, have constantly held that a wage attachment does not survive the expiration of judgment. Consequently, the garnishment proceedings lose their "force and effect" against defendant.
6 Am.Jr.2d Attachment and Garnishment § 437 (1999) (citing Grace v. Pierce, 90 So. 590 (Miss. 1921), 21 A.L.R. 1035 (1922); Hillman v. Gray, 1 P.2d 318 (Wash. 1931), 75 A.L.R. 1356 (1931)).
Id.
The Court finds this position to be consistent with Delaware law. Previous rulings in Delaware rely on the contention that, "Garnishment proceedings, after judgment, are, in substance if not in form, very similar to execution process with which it is generally associated." As such, a judgment serves "as a basis for any future valid execution process that might be issued." The attachment proceedings, thereby, rely on the validity of the underlying judgment. When the judgment expires, the plaintiff no longer has a basis for attachment.
Schwander v. Feeney's, 29 A.2d 369, 371 (Del.Super. 1942).
Id. at 372.
Jurisdictions invalidating the wage attachment upon expiration of judgment have relied on a similar line of reasoning. For example, the Supreme Court of Mississippi supported its decision by quoting a previous ruling that explained the relationship of a garnishment to the underlying judgment. According to the Mississippi Court:
The garnishment proceedings grow out of and are incidental to the main judgment, and a judgment against a garnishee rests upon the main judgment which gives it life, and when the main judgment is annulled the garnishment judgment must fall with it. The garnishment judgment is only for the purpose of enforcing the payment of the main judgment, and if there be no main judgment to enforce because of its annulment, then the purpose and life of the judgment against the garnishee is ended.
Grace, 90 So. at 592 (quoting Moody Williams v. Dye, 88 So. 332 (Miss. 1921)).
Likewise, the Supreme Court of Washington referred to an earlier decision that explained:
So that a garnishment proceeding is in no sense an original or independent action, but is ancillary to the original cause from and through which its existence comes. And with the dismissal or termination of the original action in favor of the defendant therein, the garnishment proceeding must immediately die.
Hillman, 1 P.2d at 319 (quoting Kelly v. Ryan, 36 P. 478 (Wash. 1894)).
In this case, the attachment becomes invalid upon the expiration of the judgment. The supporting record reveals that the subject writ of attachment was validly made in 1996, eight years prior to the expiration of judgment. As of September 17, 2000, Gibson Sr.'s employer garnished his wages in the amount of $38,536.66. This garnishment did not completely satisfy the judgment, but it paid more than a substantial portion of the amount due. When Gibson Sr.'s employer stopped payments in 2000, Plaintiff failed to take advantage of legal remedies available to him in order to recover the remaining balance. Plaintiff essentially had four years to either seek enforcement of the writ and/or renew judgment against Defendants. Instead, Plaintiff neglected to take either action as the interest continued to accrue on Defendants' debt. Taking these considerations into account, the Court cannot now order Defendants to pay interest that has accrued since Plaintiff's failure to actively enforce the judgment.