1.  Stay of proceedings to enforce judgments.  The provisions of K.S.A. 60-262, as amended, shall apply to judgments entered under this chapter, except as to judgments entered in eviction lawsuits under article 11 of this chapter.  A judgment entered in an eviction lawsuit may be enforced as soon as it is entered.

Comment

It is not clear under present law whether a stay applies to judgments under Chapter 61.

2.  General and special executions.  General and special executions or orders of sale upon judgments entered under this chapter shall be taken in the manner provided in article 24 of chapter 60 of the Kansas Statutes Annotated, as amended.  Executions and orders of sale issued hereunder may be levied upon real property as provided under the appropriate provisions of Chapter 60 of the Kansas Statutes Annotated.

Comment

Under the new section, executions may be levied upon real property.  Presently, they may not be.

3.  Judgment liens.
(a) Judgments rendered under this chapter shall be a lien on the real estate of the judgment debtor within the county in which the judgment is rendered.  Except as modified herein, the provisions of K.S.A. 60-2201, 60-2202 (a), and 60-2203a., as amended, shall apply to actions and judgments filed under this chapter.
(b) Judgments previously rendered under chapter 61 of the Kansas Statutes Annotated may be made a lien upon real estate if a party in whose favor a judgment is rendered under chapter 61 shall file a notice with the clerk to have such judgment be made lien against the real estate of the judgment debtor within the county in which the judgment was rendered.  The form of the notice shall be prescribed by rule of the supreme court of this state.  Thereafter, such judgment shall be a lien on the real estate of the judgment debtor within the county in which the judgment is rendered just as if the judgment had been rendered under this chapter, and the provisions of K.S.A. 60-2201, 60-2202 (a), and 60-2203a., as amended, shall thereafter apply to such judgment.

Comment

Under present law, Chapter 61 liens do not operate as liens on real estate.  To effect this, the judgment must be transcribed to Chapter 60.  Under the new section, judgments under Chapter 61 will operate as liens on real estate and executions against real estate will be allowed under Chapter 61.  The subcommittee thought this would simply matters.

4.  Exemptions.  The provisions of article 23 of chapter 60 of the Kansas Statutes Annotated, as amended, relating to exemptions from seizure and sale, shall apply to attachments, executions and other process issued from any court in this state pursuant to this chapter.

Comment

This is the same as present law (K.S.A. 61-2203).

5.  Hearing in aid of execution.
(a)  As an aid to the collection of a judgment, the judgment creditor is entitled to have an order for a hearing in aid of execution issued by the court at any time after 10 days after judgment.  There is no requirement that an execution first be issued and returned unsatisfied.  No application for such order needs to be filed except as specially required in this section.
(b)  An order for a hearing in aid of execution may be issued at the request of a judgment creditor in an individual case or by a master request covering more than one case, and shall require the judgment debtor to appear and furnish information under oath or penalty of perjury when required by the court concerning the debtor's property and income before the court at a time and place specified in the order within the county where the court is situated.  The form of the order shall be set forth in a rule to be adopted by the supreme court of this state.  The court may cancel the hearing if the judgment debtor has furnished to the judgment creditor satisfactory information concerning the debtor's property and income prior to the date and time for the hearing.  Witnesses may also be subpoenaed to testify at the hearing.
(c) If the judgment debtor resides in another county in this state or outside of this state, the court can order such judgment debtor to appear if the court finds that it will not cause undue hardship on the judgment debtor to appear.
(d) It shall be the duty of the judge to assist in the enforcement of the judgments of the court.  To this end, at any hearing in aid of execution, when the existence of any nonexempt property of the judgment debtor is disclosed, the court shall order the judgment debtor to deliver the property to the sheriff or a duly appointed process server.  If the property is other than currency, the property shall be sold in the same manner as other property taken under execution is sold and the proceeds from the sale shall be applied to the judgment and costs.

Comment

This is essentially the same as K.S.A. 61-2204.  Under the new section the hearing may be held anywhere in the county wherever the court may be located, the judgment creditor may request a hearing in more than one case with a single request, and the court may cancel the hearing if the debtor furnishes the creditor certain information prior to the hearing.   All of these things streamline the procedure without adversly affecting the rights of the parties.

6.  Order back procedure.  If a judgment debtor appears pursuant to an order for a hearing in aid of execution, the court may order the debtor to return to court from time to time to furnish current information under the procedure set forth above in section 5.  To avoid unnecessary filings, the court shall adopt a policy limiting the frequency with which the judgment debtor may be ordered to return to court.  Such policy shall provide that a judgment debtor who has made regular payments as agreed between the parties, or who is found to be disabled and otherwise unable to pay, shall not be required to return to court more frequently than yearly.

Comment

An order back procedure has been adopted for orders to appear with provisions to avoid abuse.  A variant of this is allowed now under K.S.A. 61-2204.

7.  Citation for Contempt.  If a person fails to appear in response to an order for a hearing in aid of execution, or if a person who has been subpoenaed to testify at the hearing fails to appear or to testify concerning anything about which the person can lawfully be questioned, the court shall issue a citation for contempt to that person providing that the person must either:
(1) contact the judgment creditor or attorney within 10 days to furnish information under oath or penalty of perjury concerning the judgment debtor's property and income; or
(2) appear in court at a date and time specified to show cause why the debtor should not be held in contempt and punished for contempt.
The form of the citation for contempt shall be set forth in a rule to be adopted by the supreme court of this state.  The citation for contempt does not need to be supported by affidavit or other verification.

Comment

Contempt citations will allow the judgment debtor to either appear in court or contact the judgment creditor prior to the hearing and furnish the requested information.  A contempt citation or bench warrant may be issued without supporting affidavit or other verification.  The records of the court will indicate whether the issuance of this is supported so there is no need to require further verification.  This is also to clarify a possible conflict between two separate sections of current law on contempts (K.S.A. 61-2204 and 20-1204a).

8.  Contempt hearing.  If on hearing, the court determines that a judgment debtor is guilty of contempt, the court may punish the person by a fine in an amount to be set by the court or by imprisonment in the county jail for a period of not to exceed 30 days, or both.  The court may also order the person guilty of contempt to pay the reasonable attorney fees incurred by the judgment creditor at the hearing.

Comment

The current procedure is set forth in K.S.A. 61-2204.  The new section will allow the court to award attorney fees.

9.  Bench Warrant.  (a) If a person fails to comply with the either of the requirements of section 7, or if it appears to the court that the person is hiding to avoid the process of the court or is about to leave the county for that purpose, the court may issue a bench warrant commanding the sheriff to whom it is directed to bring such person before the court to answer for contempt.  The bench warrant does not need to be supported by affidavit or other verification.  The court may make such orders concerning the release of the person pending the hearing as the court deems proper. 
(b)  When such person is brought before the court, a hearing shall be held to determine if the person should be punished for contempt.  If the court determines that the person is guilty of contempt, the court may punish the person by a fine in an amount to be set by the court or by imprisonment in the county jail for a period of not to exceed 30 days, or both.  The court may also order the person guilty of contempt to pay the reasonable attorney fees incurred by the judgment creditor in the filing of the bench warrant and the hearing thereon.

Comment

This is essentially the same as K.S.A. 61-2204 except the court now has authority to award attorney fees.

10.  Service at place of employment.  If the judgment debtor is employed in this state and either the debtor is a nonresident of this state or the place of residence is unknown, the order for a hearing in aid of execution and citation for contempt may be served on the judgment debtor at the place of employment.  The order or citation may direct that an officer, partner, managing or general agent, or the person having charge of the office or place of employment at which the judgment debtor is employed shall make the judgment debtor available for the purpose of permitting the order or citation to be served on the judgment debtor at the place of employment.

Comment

Service of process at the defendant's place of residence is the preferred manner.  However, there are times when the place of residence is not known.  Current law only allows the service of summons at the place of employment.  Creditors now are forced to file a motion and obtain a court order to do this on an order to appear or contempt citation.  This new section will allow this without the need to obtain an order.

11.  Dormant judgment and revivor.  The provisions of K.S.A. 60-2403 and 60-2404, as amended, shall apply to judgments entered under this chapter.

Comment

Under current law, it is unclear whether judgments under Chapter 61 become dormant.  The new section makes it clear that they do and what the procedure is to keep such judgments alive and to revive them.  This is important since it is now proposed that Chapter 61 judgments will become liens on real property.

12.  Substitution of judgment creditor.  Any person who claims to have succeeded to the interest of the holder of a judgment by appointment as personal representative for a deceased or incompetent judgment holder, by assignment, by operation of law, or otherwise, shall file a notice setting forth the basis for their claim, and thereafter such successor in interest shall be entitled to all the rights and remedies available to his or her predecessor and may proceed to enforce the same in his or her own name as such successor.  It shall not be necessary to file with the clerk the documents which form the basis for the claim.  If the validity of any such transfer is disputed by any party affected thereby, the court shall on reasonable notice to all interested parties whose whereabouts are known, determine the respective rights and liabilities of all the parties. 

Comment

The current procedure is covered under K.S.A. 60-2405.  The new procedure eliminates the need to file anything with the clerk.  This will further cut down on the amount of paper filed with the clerk.