Senate Bill No. 4
(By Senators Hunter and Minard)
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[Introduced January 8, 2003; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact section one, article six, chapter fifty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating to enforcement of judgments
in magistrate court; requiring notice of liens by certified
mail; and affording defendant opportunity of challenging
validity of judgment or lien in magistrate court.
Be it enacted by the Legislature of West Virginia:
That section one, article six, chapter fifty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 6. ENFORCEMENT OF CIVIL JUDGMENTS.
§50-6-1. Enforcement of judgments.
(a) The provisions of articles three, four, five, five-a,
five-b and six, chapter thirty-eight of this code, except as the
same are in conflict with the provisions of this chapter or are clearly applicable only to courts of record, shall apply to the
enforcement of judgments rendered in magistrate court and process
therefor shall issue from magistrate court. Process issued in
violation of such provisions shall be void. The form of such
process shall be in accord with the rules of the supreme court of
appeals. No such process shall issue until after twenty days after
the judgment is rendered or, if a motion to set aside such judgment
is then pending, until after twenty days after the determination of
such motion.
(b) A magistrate court clerk, deputy clerk or magistrate
assistant before whom a suggestion of salary and wages is
instituted pursuant to the provisions of articles five-a and
five-b, chapter thirty-eight of this code shall forward all post
judgment process directly to the sheriff of any county in the same
manner and with the same authority as has been given to circuit
clerks, pursuant to section five, article three, chapter fifty-six.
(c) The party obtaining judgment in magistrate court must give
notice in writing to any party or parties against whom judgment has
been rendered that the prevailing party intends to seek enforcement
of the judgment. The notice, to be effective, must be served upon
the losing party or parties in any manner provided by law and may
be served by certified mail, return receipt requested. The notice
shall inform the losing party or parties that they may challenge
the validity of the judgment the prevailing party is seeking to enforce by requesting a hearing before the magistrate in whose
court the judgment was obtained. If the losing party or parties
challenge the validity of a judgment or its enforcement after
notice given in accordance with the provisions of this subsection,
a hearing must be scheduled on that challenge within ten days. The
hearing on the challenge may be continued for good cause shown.
If, after hearing the challenge to the validity of the judgment,
the magistrate determines for specific reasons stated that the
challenge is without merit, the person seeking enforcement of the
judgment may continue as otherwise provided by the provisions of
this article. If the magistrate determines that the judgment is
not valid, then the magistrate must state the specific reasons for
that determination. The party or parties seeking enforcement of
the judgment then may not execute the enforcement or attachment
procedures set forth in this article or in articles three, four,
five, five-a, five-b and six, chapter thirty-eight of this code.
The right of appeal as set out under the provisions of section
twelve, article five of this chapter is applicable to decisions
resulting from challenges to the validity of judgments under this
section.
NOTE: The purpose of this bill is to require notice of
enforcement of liens acquired in Magistrate Court to be made by
certified mail or other methods of service; and affording a
defendant the opportunity to challenge the validity of judgment or lien in magistrate court before execution on the judgment may be
made. The bill also requires the Magistrate to hold a hearing on
the challenge and to
set forth specific reasons for upholding a
challenge. Appeal rights are maintained.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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