Chapter 9 - Suits/Action Types (G-M) - Judiciary Of Virginia

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CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-1Chapter 9 - Suits/Action Types (G-M)GarnishmentA post-judgment collection process whereby a judgment creditor may levy against a portion ofa judgment debtor’s wages or bank accounts. Pursuant to Va. Code § 34-29, the amountsubject to garnishment may not exceed the lesser of (i) 25 percent of the worker’s disposableweekly earnings or (ii) the amount by which his disposable earnings exceed 40 times the federalminimum hourly wage. See Va. Code §§ 8.01-466, 8.01-511, 16.1-116 and 16.1-69.55 (4) forauthority to issue executions and summons in garnishment. In issuing garnishments on behalfof the Commonwealth for unpaid fines and costs, the clerk may include assessment for filingfees and sheriff fees in the total amount due from the defendant. See Attorney GeneralOpinion to Mitchell, dated 4/5/96 (1996, page 43); In issuing garnishments on behalf ofCommonwealth for unpaid fines and court costs, circuit court clerk may include assessment forfiling fees and sheriff’s fees in total amount due from defendant.Notes: Service upon the U.S. Postal Service is governed by 39 CFR § 491 “Garnishment ofSalaries of Employees of the Postal Service and the Postal Rate Commission.” Circuitcourts may be required to issue executions and summons in garnishment on judgmentsentered in juvenile and domestic relations district courts, per Va. Code § 16.1-278.18 (B). Child support payments, whether current or arrears, received by a parent for the benefitof and owed to a child in the parent’s custody, shall not be subject to garnishment. Va.Code § 20-108.1 (G). Support for dependent minor children shall not be subject togarnishment. Va. Code § 34-4.2. To claim this exemption, the debtor shall attach to theclaim for exemption form an affidavit that complies with the requirements of subsectionB of Va. Code § 34-4.2 and two items of proof showing that the debtor is entitled to thisexemption. The Homestead exemption is 5,000, or 10,000 if the debtor is 65 years of age or older. The exemption for property of disabled veterans is 10,000. Va. Code § 8.01-512.4. The district court has exclusive jurisdiction over the issuance of any writ of execution onany judgment rendered it its court, within the ten year period of enforceability, per Va.Code § 16.1-94.1 even if an abstract has been docketed in the circuit court. If theabstract has been docketed in the circuit court, after ten years, the circuit court mayissue execution or the general district court may issue following receipt of a circuit courtabstract of judgment (use form CC-1464, ABSTRACT OF JUDGMENT) in the general districtcourt. If a district court abstract is docketed in the circuit court, the limitation for theenforcement of that district court judgment is extended to twenty years from the dateof the original district court judgment, regardless of the disposition of the documents inthe district court. See Va. Code § 16.1-69.55 (B)(4).Document TypeOffice of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-2Garnishment SummonsFiling TypeGARNProceduresStep 1Clerk receives Suggestion for Summons in Garnishment. Seeform CC-1485, Suggestion for Summons in Garnishment. Note:If the judgment debtor does not reside in the city or countywhere the judgment was entered, the judgment creditor mayhave the case filed or docketed in the court of the city or countywhere the judgment debtor resides and such court may issue anexecution on the judgment, provided that the judgment creditor(a) files with the court an abstract of the judgment rendered, (b)pays fees to the court in accordance with § 16.1-69.48:2 orsubdivision 17 of § 17.1-275, and (c) files in both courts anyrelease or satisfaction of judgment.Step 2Clerk receipts filing fee (clerk’s and sheriff’s). Note: Service andprocess per individual served is 24. See Va. Code § 17.1-272and “Fee Schedule” appendix for further information.Step 3Clerk determines if there is a live execution (i.e., writ of fierifacias) by checking original case file for execution paper and/orthe Judgment Lien Docket. Note: If there is a live executionalready, do not charge the execution fee.Step 4Clerk dockets case within 90 days or 180 days (wagegarnishments only) for garnishment hearing.Step 5Clerk issues CC-1486, GARNISHMENT SUMMONS along withaddressed stamped envelope to judgment debtor (which issupplied by creditor and mailed by sheriff to judgment debtor(Va. Code § 8.01-511); Clerk issues CC-1486, GARNISHMENTSUMMONS, DC-454, REQUEST FOR HEARING – GARNISHMENT/LIENEXEMPTION CLAIM as well as service check to sheriff for service on:1) judgment debtor; and 2) garnishee (employer/financialinstitution other party holding money). Garnishee should alsoreceive a copy of DC-455, GARNISHEE INFORMATION SHEET TOEMPLOYER.Comments: Service upon a corporation shall be served upon anofficer, an employee designated by the corporation, or if there isOffice of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-3no designated employee or he cannot be found, upon amanaging employee of the corporation. If the judgment creditoror his attorney files with the court a certificate per Va. Code §8.01-513, then the summons shall be served on the registeredagent of the corporation or upon the clerk of the StateCorporation Commission. See also Va. Code § 12.1-19.1.Note: A Summons to Answer Interrogatories may be served by aprivate service processor. No sheriff’s action is requested to levyon tangible personal property, take possession of it, and sell it atpublic auction. See Attorney General Opinion to Ayers, 10-075(2011); Writs of fieri facias, debtor interrogatories andgarnishments are distinct, though related, proceedings, so that,although the sheriff or other executing officer may be required tolevy on the tangible personal property of a judgment debtorwhen executing a writ of fieri facias, no such requirement isimposed when serving a Summons for Interrogatories orGarnishment Summons. In addition, the fees sheriffs may chargefor these services are governed by the express terms of Va. Code§ 17.1-272.Step 6Clerk records issuance of service in Process Book or automatedcase management system. Va. Code § 17.1-215.Step 7Proof of Service returned and recorded in Process Book orautomated case management system.Comments: Person making service shall note on his return thedate of mailing of copy of summons to judgment debtor, withnotation indicated in Va. Code § 8.01-511.Step 8If a hearing is requested to contest the garnishment, a hearingmust be held within seven business days from the date thenotice of exemption and request for hearing form is filed withthe clerk’s office. Note: Sometimes notice is filed with clerkbefore return of process or service on judgment debtor; clerkshall notify parties of hearing date (if written notice not given,clerk should document in the file that notification was notgiven). See form DC-454, REQUEST FOR HEARING-GARNISHMENT/LIENEXEMPTION CLAIMStep 9Hearing held in cases of exemption claim.Office of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-4Step 10Clerk or attorney prepares order either dismissing, modifying, oraffirming garnishment; clerk sends copy of order to garnishee ifgarnishment dismissed or modified. A DC-453, GarnishmentDisposition may be utilized.Step 11Clerk records and indexes orders in the Civil Order Book unlessotherwise provided by law.Comments: Recording and/or Indexing may be accomplished byelectronic or micrographic medium as provided in Va. Code §17.1-240 or Va. Code § 17.1-249.Step 12Prior to return date on garnishment summons (max. of 90days*), clerk receives money from garnishee, or clerk receivesanswer that judgment debtor is not employed, has no assetswith garnishee, or that judgment debtor has legal defense.Comments: *In the case of a wage garnishment, the summonsshall not be returnable more than 180 days from issuance. Va.Code § 8.01-514.Step 13Clerk receipts any money received or money may be received inform of a check made payable to judgment creditor. UseAccount Code 523 if check is made payable to theClerk/Commonwealth.Step 14Return date hearing is held (may or may not be attended).Step 15Dispositional order is prepared by attorney or clerk and enteredby judge.Step 16Clerk records and indexes orders in the Civil Order Book unlessotherwise provided by law.Step 17Clerk disburses money pursuant to court order.Step 18Clerk follows normal case closing procedures.Notes: If another garnishment is requested, it would be a new andseparate case. Who can/cannot be garnished? Va. Code §§ 8.01-522, 8.01523, 8.01-525. Hilton Amburgey 198VA727, 1957Office of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-5 If clerk has received funds from garnishee and receives eitherwritten or oral notice of filing of bankruptcy by judgmentdebtor, clerk does not disburse funds until advised bybankruptcy court, judge or trustee. Get order from circuitcourt to make payment to bankruptcy court or trustee.Fees/Taxes/Other Monies AssessedCircuit Court Civil Filing Fee CalculationForm(s)CC-1485, SUGGESTION FOR SUMMONS IN GARNISHMENTCC-1486, GARNISHMENT SUMMONSCC-1486(a), Garnishment StatuteDC-454, REQUEST FOR HEARING - GARNISHMENT EXEMPTION CLAIMReference(s)Va. Code § 8.01-511 et seqVa. Code § 17.1-275 A (7)Va. Code § 58.1-1727Attorney General Opinion to Crismond, dated 4/17/74 (1973-74, page 415);Writ Tax - Not applicable to garnishment proceeding.TYPE CHARGESClerk’s FeeCourts Technology FundClerk’s execution fee*Sheriff’s fee(Process and service of summons)Sheriff’s feeFEESCODE REFERENCEVa. Code § 17.1-275 A(7)Va. Code § 17.1-275 A(13)Va. Code § 17.1-275 A(44)Va. Code § 17.1-272 (1)Va. Code § 17.1-272 (5)(Process and service of fi fa)NOTE: When the Writ of Fieri Facias portion of the Garnishment Summons has beencompleted, two sheriff’s fees should be assessed, one for serving the fi fa and theother for serving the summons. Completion of the Writ of Fieri Facias portion of theGarnishment Summons is necessary unless a live fi fa is already in existence.)Sheriff’s fee (out-of-town service)Office of the Executive SecretaryVa. Code § 17.1-272Department of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)TYPE CHARGESPAGE 9-6FEESCODE REFERENCECHMFVa. Code §17.1-281Law LibraryVa. Code § 42.1-70CHCF**Va. Code § 17.1-281Legal AidVa. Code § 17.1-278Technology Trust FundVa. Code § 17.1-279Writ TaxVa. Code § 58.1-1727* If there is a live execution, no fee may be charged.** Not assessed if the amount of the civil action is 500 or lessGuardians/ConservatorsGuardian/Conservator AppointmentA guardian is responsible for the personal affairs of an incapacitated adult. A guardianmakes decisions about the person’s support, care, therapeutic treatment, and residence.A conservator is responsible for managing the estate and financial affairs of anincapacitated adult.Where the petition is brought by a parent or guardian of a respondent who is under theage of 18, or by any other person and there is no living parent or guardian of a respondentwho is under the age of 18, the petition may be filed no earlier than six months prior tothe respondent’s eighteenth birthday. Where the petition is brought by any other personand there is a living parent or guardian of a respondent who is under the age of 18, thepetition may be filed no earlier than the respondent’s eighteenth birthday.Appointed by the circuit court and qualified by the circuit court clerk, a guardian orconservator may have responsibilities that are unlimited in time or scope, or may begranted powers that are “limited” or “temporary”.Note: Except for good cause shown, including a determination by the court that there isno acceptable alternative available to serve, the court shall not appoint as guardian orconservator for the respondent an attorney who has been engaged by the petitioner torepresent the petitioner within three calendar years of the appointment. Such prohibitionalso applies to all other attorneys and employees of the law firm with which such attorneyis associated. The court shall require the proposed guardian or conservator to certify atthe time of appointment that he has disclosed to the court any such representation of thepetitioner or association with a law firm that represented the petitioner within the threecalendar years preceding the appointment. An attorney An attorney seeking qualificationas a guardian/conservator is required to file CC-1643, Certificate of Proposed Guardian,with the court prior to the hearing. Va. Code § 64.2-2007Office of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-7Document TypePetitionFiling TypeAPPTProceduresStep 1Petition is filed in the circuit court. Petition shall include the sealedfiling of the incapacitated person’s social security number. Va.Code § 64.2-2002.Comments: Filed where the subject resides, is located, or lastresided prior to becoming a patient. The petitioner may requestappointment as a guardian and/or conservator.Step 2Clerk receipts money, opens file and dockets case.Comments: Petitioner may request waiver of service fees andcourt costs. However, the Commonwealth will not pay petitioner’scounsel or other costs. Va. Code § 64.2-2007.Step 3The court shall appoint a guardian ad litem to represent theinterests of the respondent and shall promptly set a date, time andlocation for a hearing.Comments: The Petitioner shall file with the clerk a statement ofcompliance of advance notice required by Va. Code § 64.2-2004.Step 4Clerk issues process. The respondent shall be given reasonablenotice of the hearing.Comments: Personal service upon the respondent is required. ANotice of Hearing, copy of the Petition, and copy of the orderappointing a guardian ad litem is served.Step 5Office of the Executive SecretaryClerk files all returns, etc. Any reports evaluating the condition ofthe respondent shall be filed, under seal, with the court.Department of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)Step 6PAGE 9-8Clerk records the court’s order of appointment in the deed records.Where the petition is brought on behalf of a respondent’s just priorto their eighteenth birthday, such order shall specify whether ittakes effect immediately upon entry or on the respondent’seighteenth birthday.A conservator having power to sell real estate must record theorder in the clerk’s office of any jurisdiction in which therespondent owns real property. Va. Code § 64.2-2011.Step 7Clerk required to report fact of appointment to: Department of Behavioral Health and Developmental Services: ifthe respondent is a patient in a state hospital (copy of order). Va.Code § 64.2-2014 Secretary of State Board of Elections (on form ELECT-410 orELECT-410E). Va. Code § 64.2-2014 Local Department of Social Services, where incapacitated personresides-guardian appointment (copy of order). Va. Code § 64.22011 Central Criminal Records Exchange (copy of order with form SP237). Note: The Ccre Shall As Soon As Practicable, But No LaterThan The Close Of Business On The Following Business Day, BeSent To Ccre. Va. Code § 64.2-2014 Commissioner of the Department of Motor Vehicles (copy oforder or abstract). Note: If the court’s order specifically permitsthe person to retain his driver’s license or the privilege to driveor to apply for such license, DO NOT send a copy to DMV. Department of Medical Assistance ServicesProgram Operations Division600 East Broad StreetRichmond, VA 23219 Va. Code § 64.2-2011 Commissioner of Accounts-conservator (copy of order). Va. Code§ 64.2-2011Note: The court’s order must specify the legal disabilities, if any, ofthe incapacitated person. An incapacitated person is “mentallyincompetent” (and cannot vote) unless the court’s orderspecifically provides otherwise.Comments: Guardian appointed pursuant to Va. Code § 64.2-2007will not be paid out of the Criminal FundOffice of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-9Guardian ad litem or court-appointed counsel appointed for theindigent incapacitated adult will be paid if court determinesindigency. A DC-40, LIST OF ALLOWANCES with copy of order attached,should be completed by the GAL or COA and submitted to the courtfor processing.Step 8Clerk records and indexes orders in the Civil Order Book unlessotherwise provided by law.Comments: Recording may be accomplished by microphotographicor electronic recording process per Va. Code § 17.1-240. Indexingmay be maintained on computer, microfilm or microfiche per Va.Code § 17.1-249.Step 9Clerk qualifies the fiduciary.Comments: Court’s appointee must submit form CC-1652,Incapacitated Adult Information FormStep 10A guardian ad litem may be appointed by the Court. Clerkprocesses DC-40, LIST OF ALLOWANCES if estate is inadequate to payguardian ad litem fee.Comments: Reference this Manual regarding appointment ofguardian ad litem.Fees/Taxes/Other Monies AssessedTo File PetitionCircuit Court Civil Filing Fee CalculationTo Record OrderCircuit Court Civil Filing Fee CalculationQualification FeeCircuit Court Civil Filing Fee CalculationNote: Court may waive fees re: indigency. Va. Code § 64.2-2008Office of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-10Form(s)CC-1642, ADDENDUM TO PETITION FOR APPOINTMENT OF GUARDIAN OR CONSERVATOR– UNDER SEALCC-1643, Certificate of Proposed GuardianCC-1644, ANNUAL REPORT OF GUARDIAN FOR INCAPACITATED PERSONCC-1652, INCAPACITATED ADULT INFORMATION FORMReference(s)Va. Code §§ 17.1-275A (1), (3), (43), 17.1-279Va. Code § 24.2-410Va. Code §§ 64.2-2000 et seqVa. Code § 64.2-2028Va. Code § 46.2-400To File PetitionTYPE CHARGESClerk’s FeeCourts Technology FundWrit TaxFEESCODE REFERENCEVa. Code § 17.1-275 A(43)Va. Code § 17.1-275 A(26)Va. Code § 58.1-1727Qualification OrderTYPE CHARGESClerk’s FeeAdd’l CertificatesAdd’l BondsFEESCODE REFERENCEVa. Code § 17.1-275 A(3)Va. Code § 17.1-275 A(9)Va. Code § 17.1-275 A(6)Guardian/Conservator Appointment-Uniform Adult Guardianship and ProtectiveProceedings ActPersons living outside of the Commonwealth may petition the circuit court to accept andconfirm a transfer of a guardian/conservator appointment from another state.Note: As defined in Va. Code § 64.2-2115, “protected person” means an adult for whom aprotective order has been issued, “protective order” means an order appointing aconservator, and “protective proceeding” means a judicial proceeding in which aprotective order (conservator) is sought or has been issued.This appointment is made pursuant to Va. Code § 64.2-2115. In granting a petition, thecourt shall recognize a guardianship or conservatorship order from the other state,including the determination of the incapacitated or protected person’s incapacity and theOffice of the Executive SecretaryDepartment of Judicial ServicesRev: 1/21

CIRCUIT COURT CLERKS’ MANUAL - CIVILSUITS/ACTION TYPES (G-M)PAGE 9-11appointment of the guardian or conservator. The final order accepting the transfer shallcontain a determination of whether the guardianship or conservatorship needs to bemodified to conform to the law of the Commonwealth.Special Jurisdiction: Va. Code § 64.2-2108 gives a court of the Commonwealth specialjurisdiction to appoint a guardian in an emergency for a term not exceeding 90 days for arespondent who is physically present in the Commonwealth; issue a protective order withrespect to

the general district court may issue following receipt of a circuit court abstract of judgment (use form CC-1464, A. BSTRACT . O. F . J. UDGMENT) in the general district court. If a district court abstract is docketed in the circuit court, the limitation for the enforcement of that district court judgment is extended to twenty years from the . date

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