Can the Court do that?
by Andrew R. Korn, Esq.
March 2, 2020
When I am in the field recovering assets to satisfy civil money judgments, Judgment Debtors frequently tell me (or tell the law enforcement officers assisting the Court): “you can’t do that.”
Why would someone, with no special skill, education, training, knowledge, or experience in the area of enforcing civil money judgments, think they know what can and can’t be done when an officer obeys the command of the court? Especially when many times that person has:
• not even read the order or writ providing the legal basis for what is happening;
• the poor judgment that resulted in an adverse judgment; and
• either failed to appeal, lost the appeal, or appealed without posting bond.
But judgment debtors, and ignorant attorneys representing these judgment debtors, often resist property seizures by relying on making misplaced or incorrect legal positions. These judgment debtors or their attorneys will support their declaration of “you can’t do that,” with conclusory statements like:
“I know my rights…” or “I know the Constitution…” or “it’s all homestead.”
If you “know the Constitution,” then you know that the answer about what a judicial officer can do to satisfy a civil money judgment originates in the Constitution. Both the Texas and United States constitutions provide for a judicial branch of government.[i]
The courts of the judicial branch can make judgments[ii] and decrees.[iii] These courts have broad powers to give effect to their judgments and decrees.[iv] So much power that it can be fairly said that – unless prohibited[v] – a court can do anything to enforce its judgment. This includes the use of force.[vi]
Even if a judgment debtor correctly “knows his rights,” those rights yield to enforcement of the Judgment.[vii]
Even if a judgment debtor has property that might be protected from an officer’s levy and sale – unless there is an order identifying specific exempt property and excluding that property from forced sale – the officer may seize and sell that property.[viii]
So, the next time someone says that an officer of the court cannot take possession of money or property to satisfy a civil money judgment, it’s highly likely that person is wrong.
[i] See U.S. Const. Art. III, § 1 (“The judicial Power of the United States, shall be vested in [Courts]”); Tex. Const. Art. II, § 1 (“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another…”); Tex. Const. Art. V, § 1 (“The judicial power of this State shall be vested in [Courts]”).
[ii] Smith v. Miller, 384 P.2d 738, 741 (Colo. 1963) (“The judiciary has its exclusive powers and functions, to wit: it has judgment and the power to enforce its judgments and orders.”); Gabler v. Crime Victims Rights Bd., 897 N.W.2d 384, 397 (Wisc. 2017) (“No aspect of the judicial power is more fundamental than the judiciary’s exclusive responsibility to exercise judgment in cases and controversies arising under the law.”); Pennsylvania Co. for Insurances on Lives and Granting Annuities v. Scott, 29 A.2d 328, 329-30 (Pa. 1942) (pursuant to separation of powers doctrine, the legislature cannot interfere with a judgment or decree of the judicial branch).
[iii] Wiley v. Sparta, 114 S.E. 45,48 (Ga.1922) (“A decree is the judgment of the judge in equitable proceeding, upon the facts ascertained.”).
[iv] See Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (Citation omitted) (“The general rule is that every court having jurisdiction to render a judgment has the inherent power to enforce its judgments. That power is part of the court’s jurisdiction, and the court may employ suitable methods to enforce its jurisdiction.”); Smith v. Miller, 17 S.W. 399, 401 (Tex. 1886) (“The judgment declares the rights of the respective parties, and the court below may at any time direct such process, or make such orders, as may be necessary to carry its judgment into execution… [when a judgment remains unpaid, the Judgment Creditor] may ask and have all necessary orders necessary to their protection”); In re Bradberry, 2012 Tex. App. LEXIS 6501, at *2-3 (Tex. App.—Tyler Aug. 8, 2012, orig. proceeding) (“A judgment creditor is entitled to assistance from a court of appropriate jurisdiction to reach property to obtain satisfaction of a judgment…”); Ex parte Dolenz, 893 S.W.2d 677, 680 (Tex. App.—Dallas 1995, orig. proceeding) (“A trial court has broad discretion in enforcing its judgments and orders. A trial court may enforce a judgment by using various rules and statutes.”); Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex. App.—Dallas 1993, writ denied) (“The trial court has broad discretion in the method it employs to enforce its judgments.”); Accord Ecker Bros. v. Jones, 186 Cal. App. 2d 775, 787 (1960) (“court of equity can mold its decrees to suit the exigencies of the case.”); Siemens v. Halske v. Gres, 354 N.Y.S.2d 762, 763 (Sup. Ct. 1973) (The “public policy is to put no obstacle in the path of one seeking to secure the enforcement of a judgment of a court of competent jurisdiction.”); Brow v. Farrelly, 994 F.2d 1027, 1037 (3d Cir. 1993) (Citing C.J.S. on Judgments) (“As a general rule, a party recovering judgment has the right to proceed to enforce it, and the court rendering judgment has inherent power to enforce it and to make such orders and issue such process as may be necessary to make it effective.”); Atl. Research Mktg. Sys. v. G.G.&G., L.L.C., 167 F. Supp. 2d 458, 475 (D. Mass. 2001) (Citing Keeton, JUDGING IN THE AMERICAN LEGAL SYSTEM, § 21.1.5 (1999)):
It is well established by tradition and practice in the American legal system that HN12 a court may make orders in aid of enforcement of its Judgment.
An order in aid of enforcement of a judgment may be included within the terms of the judgment itself. As explained in § 21.1.3, above, this kind of provision is one among the many things a judgment may say.
An order in aid of enforcement of a judgment may, instead, be made as a separate order at the same time as a final judgment is ordered or at a later time.
• collection efforts on a judgment debtor after the judgment debtor files bankruptcy (if the automatic stay is in effect). See 11 U.S. Code § 362(a)(2); and
• imprisonment of the judgment debtor for failure to pay the judgment debt. See Const. Art. I, § 18 (“No person shall ever be imprisoned for debt.”).
It is unconscionable conduct to impede the execution of orders issued by a Bankruptcy Judge pursuant to the mandate of the Court of Appeals and after an issue has been litigated to finality. No person has any right to bar the door to the United States Marshal when he is executing orders issued pursuant to such a mandate.
G&G Closed Circuit Events, LLC v. Mickey’s Sports Bar & Grill LLC, 2017 U.S. Dist. LEXIS 209912, at *12 (N.D. Tex. Dec. 21, 2017) (“In connection with any Writ of Execution in this case, the Court directs the United States Marshals Service to use any means or forces reasonably necessary to satisfy this Judgment.”); Joe Hand Prom., Inc. v. Vanhoozer, 2014 U.S. Dist. LEXIS 190092, at *4 (W.D. Tex. Apr. 30, 2014) (“In connection with any Writ of Execution in this case, the Court directs the United States Marshals Service to use any means or force reasonably necessary to satisfy this Order.”); J&J Sports Prods. v. Chacon, 2012 U.S. Dist. LEXIS 150133, at *8 (S.D. Tex. Oct. 18, 2012) (“In connection with any Writ of Execution in this case, the court directs the United States Marshals Service to use any means or force reasonably necessary to satisfy this judgment.”); J&J Sports Prods., Inc. v. El Pollo Alegre, Inc., 2012 U.S. Dist. LEXIS 31281, at *3 (E.D. Tex. Mar. 7, 2012) (“In connection with any Writ of Execution in this case, the Court directs the United States Marshals Service to use any means or force reasonably necessary to satisfy this Judgment.”).
Some jurisdictions have statutes permitting officers to use force against judgment debtors. See, e.g. Jurco v. State, 825 P.2d 909, 911-912 (Alaska Ct. App. 1992) (Emphasis added):
[Under Alaska Statute Sec. 11.81.420. Justification: Performance of public duty] conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order.
The justification afforded by this section also applies when . . . the person reasonably believes the conduct to be required or authorized by a decree, judgment, or order of a court of competent jurisdiction or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process[.]
Under this statute, law enforcement officers are empowered to use force to execute court decrees, even if it is later shown that the court had no authority to issue the decree.
See also, Texas Penal Code Sec. 9.21. Public Duty.
(a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.
(b) The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).
(c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.
(d) The justification afforded by this section is available if the actor reasonably believes:
(1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or
(2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.
[vi] See Linde v. Linde, 2019 PA Super 331, at *13-14 (November 1, 2019) (“Post-judgment discovery in aid of execution demands the disclosure of the defendant’s personal assets — information in which the defendant possesses a right of privacy.”); Sberbank of Russia v. Traisman, 2016 U.S. Dist. LEXIS 113351, at * (D. Conn. Aug. 23, 2016) (“a judgment-debtor’s privacy interest does not generally outweigh the judgment-creditor’s entitlement to post-judgment discovery.”); Phelps v. Bishop, 2015 Cal. App. Unpub. LEXIS 7159, at *10-11 (Oct. 6, 2015) (Citations omitted) (Emphasis added):
The constitutional right of privacy does not provide absolute protection against disclosure of personal information; rather it must be balanced against the countervailing public interests in disclosure. For example, there is a general public interest in ‘”‘facilitating the ascertainment of truth in connection with legal proceedings'”‘ and in obtaining just results in litigation. The public also has an interest in facilitating the enforcement of judgments, thus ‘ensuring that those injured by the actionable conduct of others receive full redress of those injuries.’ If these public interests in disclosure of private information are found to be ‘compelling,’ the individual’s right of privacy must give way and disclosure will be required.
The public interest in facilitating the enforcement of Phelps’ judgment against Bishop overrides any privacy interest Bishop may assert in his financial information.
See generally 2245 Venetian Court Bldg. 4, Inc. v. Harrison, 149 So. 3d 1176, 1181, n.4 (Fla. App. 2014) (“postjudgment discovery is broader in nature [then prejudgment discovery]” and “corporations cannot ordinarily assert a privacy right.”); Cf. Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 407 (S.D.N.Y. 2009) (“the United States Supreme Court has held that officers do not violate privacy rights when, in the course of executing a warrant, they refuse to allow unclothed persons to cover themselves while they sweep and secure a room.”).
An officer receiving a writ of execution does not have a duty to:
(1) search for property belonging to the judgment debtor;
(2) determine whether property belongs to a judgment debtor;
(3) determine whether property belonging to the judgment debtor is exempt property that is not subject to levy;
(4) determine the priority of liens asserted against property subject to execution; or
(5) make multiple levies for cash or multiple levies at the same location.
[ix] See In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003) (“A trial court has an affirmative duty to enforce its judgment…); McDowell v. Hightower, 242 S.W. 753, 754 (Tex. 1922) (The law’s behests must be obeyed…”); In re Reed, 901 S.W.2d 604, 608 (Tex. App.—San Antonio 1995, orig. proceeding) (Emphasis added) (“The purpose of our courts is to adjudicate, not merely to advise. Central to the fulfillment of this purpose is that court orders must be obeyed.”); Astra Bar, Inc. v. Manges, 608 S.W.2d 702, 706 (Tex. Civ. App.—Corpus Christi 1980, no writ) (“[I]t is the duty of this Court to enforce our judgment… by issuing whatever writs are necessary to prevent any interference with the efforts of [judgment creditor] to collect money on the judgment rendered in the prior suit.”);United States v. Oliphant, 230 F. 1, 9 (3d Cir. 1916):
It would be a vain thing for a court to make an order if it did not have the power to enforce it, and when a court by its rule or order directs one of its officers to do a thing in connection with a matter which is purely a part of his official duties, the order of the court becomes the law which governs the officer.
National Foundry & Pipe Works v. Oconto Water Co., 52 F. 43, 55 (E.D. Wisc. 1892) (“In general the right to judgment or decree necessarily carries with it the right of enforcement of satisfaction…”).
Court’s expect a judgment debtor to pay any adverse judgment, so no judicial assistance is required. See James N. Gray Co. v. Airtek Sys., Inc., 2006 U.S. Dist. LEXIS 2516, at *9 (E.D. Ky. Jan. 24, 2006) (Courts normally expect defendants to pay any judgment); Denton v. Denton, 147 So. 2d 545, 547 (Fla. App. 1962) (“The plaintiff as well as the defendant must honor the orders and judgments of the court, and the courts should liberally utilize the available and reasonable means of enforcing their judgments and decrees.”); Cf. Fudali v. Pivotal Corp., 2010 U.S. Dist. LEXIS 127055, at *8-9 (D.D.C. Dec. 2, 2010) (A judgment debtor’s arrogant attitude about its obligation to pay a judgment is cause of great concern); Integrated Control Sys. v. Ellcon-National, Inc., 2003 U.S. Dist. LEXIS 25310, at *6 n.5 (D. Conn. Aug. 17, 2003) (“This Court expects the complete cooperation of plaintiff in defendant’s collection efforts and will respond harshly to any actions perceived as stonewalling…”).
[x] See Meres v. Chrisman, 46 Ky. 422, 423 (Ky. Ct. App. 1847).