M E M O
TO:Joint Procedure Committee
RE:Rule 7.1(d), N.D.R.Ct.; Satisfaction of Judgment for Money when Judgment Creditor Cannot be Found
At its September 2001 meeting, the committee discussed the conflict between N.D.C.C. § 28-20-28 and N.D.R.Ct. 7.1(d), both of which contain procedures for the satisfaction of a judgment by a judgment debtor in situations when no person having the authority to satisfy the judgment may be found or when the person having authority to satisfy the judgment refuses to do so. In response to committee instructions, staff has prepared a revision of Rule 7.1(d), which incorporates the procedure contained in N.D.C.C. § 28-20-28. N.D.C.C. § 28-20-28 would be superseded under the revised Rule 7.1(d).
Staff collected comments from court personnel regarding the incorporation of N.D.C.C. § 28-20-28 into Rule 7.1(d). Jim Ganje, who originally brought the conflict between the rule and statute to the committee's attention, suggested that it might be simpler if there was only one procedure, but that if the alternative procedures were incorporated into the rule, the party seeking satisfaction should be required to specify which procedure it intended to follow. The committee may wish to consider whether language requiring a party to elect a specific judgment satisfaction procedure should be incorporated into Rule 7.1(d).
Clerk of court staff who submitted comments generally did not object to incorporation of the N.D.C.C. § 28-20-28 procedure into Rule 7.1(d). However, clerk of court staff did raise questions regarding how they should handle money paid to them to satisfy judgments. Susan Sisk and Mr. Ganje noted that clerks are authorized under judicial system policy guidelines to maintain bank accounts to handle money temporarily, and that they could handle money received in satisfaction of judgments through such accounts. He also suggested that addressing problems the clerks might have in handling judgment money should not be the job of the committee.
Dorothy Howard indicated that her office always applies the N.D.C.C. § 28-20-28 procedure when dealing with judgments where the creditor cannot be found and that receiving funds has not been a problem for her office. She stated that the debtors she works with likely would not be able to understand how to use the satisfaction by motion procedure now in Rule 7.1(d). Similarly, Paulette Reule supported incorporating the N.D.C.C. § 28-20-28 procedure into Rule 7.1(d) because it is an easier procedure for small claims court judgment debtors to follow.
Ms. Reule, however, pointed out that neither the statute nor the rule provide a solution in cases where a judgment debtor provides payment directly to the creditor, but the creditor declines to file satisfaction of judgment. She suggested that further amendment of Rule 7.1 might be in order to deal with this problem. Ms. Sisk informed staff that, even though the letter of N.D.C.C. § 28-20-28 seems to require an actual cash payment be made to the clerk before a judgment can be satisfied, some clerks will enter satisfaction of judgment when a debtor can provide proof of payment to the creditor. The committee, therefore, may wish to consider whether additional language should be added to Rule 7.1(d) allowing judgments to be satisfied when a judgment debtor can provide proof of payment to the judgment creditor, as opposed to making a cash deposit with the clerk.