1.  Purpose of act

A.  To allow and encourage judicial districts to study and adopt a procedure for the electronic filing of court documents.

 B.  To streamline the procedure under Chapter 61 to reduce the amount of paperwork filed with the clerk and the amount of court time required in the handling of Chapter 61 cases.

 A.  118 sections of the act which recodify what is now Chapter 61.  Existing sections of Chapter 61 will be repealed upon effective date except for sections on Small Claims.

 B.  Supreme Court rule on technical standards for electronic filing adopted September 6, 2000.

 C. Supreme Court Order approving final forms to be used under Chapter 61.

 D.  Effective date is January 1, 2001.

 A.  Jurisdictional limits.  Sec. 2.

  1.  No limit on unsecured contract claims.

  2. $25,000 on tort and secured claims.

 B.  No change in type of suits handled under Chapter 61.

 C.  Sup Ct to adopt a rule to govern electronic filing.

 D.  Each district may accept court papers for filing under the old way or an electronic filing procedure or any combination.

 A.  Type of pleadings filed is the same.  Content & form of all pleadings and motions to be set forth by SC Rule.  Sec. 12.

 B.  Defendant may file answer before appearance or appear.  If defendant appears and disputes the petition, shall file an answer within 10 days thereafter. Sec. 10.  Contents of answer in Sec. 10.  Note: no penalty for failure to file an answer.  Might consider motion for judgment on the pleadings.  Also see section on Pretrial.

 C.  Summons date is not less than 11 nor more than 50 days.  Sec. 20.

 A.  Personal, RS & RSTD - no change.

 B.  Return receipt delivery - new.  See Sec. 21(c).

 C.  Garnishments may also be served by first class mail, fax and Internet e-mail. Sec. 21(g).  Also see Sec. 50 & 52 where service at place of business is permissible on all garnishees.

 D.  Service on defendant at place of employment will no longer require affidavit. Sec. 22(b).

 A.  Request for Admission.  Either party may submit to the other.  Sec. 25.

 B.  Interrogatories.  Either party may submit to the other without court order.  Sec. 27.

 A.  Optional with each court.

 B.  Before hearing, each side submit to other documents which support petition and answer and list witnesses.  If defendant has not filed an answer as required, court will probably grant judgment to plaintiff as matter of law.

 C.  Default judgment may be entered for failure to appear.

 D.  Court can enter judgment as matter of law.

 Clarifies existing law.  Set aside - 10 days & 45 days.

 A.  Individual or master journal entry covering several cases.  Sec. 34.

 B.  60-262 now clearly applies to all judgments except judgments in eviction.  Sec. 62.

 16-201, 16-204 & 16-205 apply to Chapter 61 judgments.

 60-252, 60-259 & 60-260 apply to Chapter 61 judgments.

13.  Venue - no change.  Sec. 37-45.

14.  Attachment - no change.  Sec. 46.

15.  Wage Garnishment.   Sec. 52, 53, 55, 56, 58.

 A.  Order is continuing.  Remains in effect until judgment is paid or order is released.  Sec. 52(c).

 B.  Order also constititutes an order to pay.  Sec. 52(c).

 C.  Party requesting the garnishment shall keep an accounting of all payments received on the judgment and interest accrued thereon and shall produce a copy of such accounting upon request of the court.  Sec. 52(e).

 D.  Party requesting garnishment shall send the notice of garnishment immediately after the garn order is served.  Hearing procedure is same as current law. Sec. 53.

 E.  Answer to be completed within 15 days following the end of each month.  Answer not filed with court but copies sent to judgment debtor and judgment creditor.  Sec. 55(b).

 F.  Reply procedure is same as current law.  Sec. 56.

 G.  Multiple garnishments can be in effect at the same time against the same debtor.  Each judgment creditor to be paid a pro-rata part of the wages withheld as designated on the answer form.  Much of the procedure will be set forth on the answer form and the instructions to accompany the form.  Sec. 55(b).

 H.  Payment is made by the garnishee directly to all judgment creditors without a pay-in order within 10 days after answer is completed if no reply has been made.  Sec. 58. 

 A.  Applies to intangible property only.  Sec. 47.

 B.  Request to state 110% of judgment amount.  Sec. 51.

 C.  Money withheld to be paid to court, not directly to creditor.  Sec. 57.

 D.  Party requesting garnishment shall send the notice of garnishment immediately after the garn order is served.  Sec. 53.

 A.  Failure of Garnishee to answer.  Sec. 59.

 B.  Failure of Garnishee to pay.  Sec. 60.

 A.  No executions on real property.  Same as current law.  Sec. 63.

 B.  Order to appear can be issued anytime after 10 days after judgment.  No requirement that execution first be issued.  Sec. 65 (a).

 C.  Individual or master request may be made.  Sec. 65(b).

 D.  Order back procedure.  Sec. 66.

 E.  Contempt procedure allows debtor to contact attorney or appear in court.  Clarifies confusion under current law about which procedure applies.  Attorney fees can be granted on hearing.  Sec. 67-68.

 F.  Bench warrant procedure clarified.  Sec. 69.

 G.  Order to appear and Citation can be served on debtor at place of employment without need for court order.  Sec. 70.

 A.  This article was changed to create a more useful statute and to change many of the legal phrases to "plain English" terminology.  There were few substantive changes to the statute and the statute was amended to reflect the common practices observed by judges, clerks of courts, and sheriffs.

 B.  The replevin section has been changed to distinguish between prejudgment replevins which require additional Constitutional safeguards, and post judgment replevins which proceed as normal litigated controversies.  The elements required in the petition are specifically delineated to assist in electronic filing.  The most substantive change is changing the bond amount from "the amount of plaintiff's claim" to double the fair market value of the property in dispute.  This reduces the bond significantly in the event the property has little value in comparison to the plaintiff's overall claim.  For example, a lessor seeking return of his leased property may have a claim for the remainder of the lease term, but the actual fair market value of the leased property has diminished considerably over time.  Sec. 73.

 C.  The clerk of the court and sheriff have been relieved of "quasi-judicial" rulings.  A judge determines the sufficiency of bonds and approves bonds, rather than the clerk.  In the case of redelivery bonds, the judge determines the sufficiency of and approves bonds rather than the sheriff.  Sec. 73.

 D.  A plaintiff has the right to inspect the property and abandon its claim for replevin at which time the bond is canceled and the plaintiff and his surety are relieved of responsibility.  Sec. 74.

 A.  3 day notice combines requirements from current eviction law and landlord-tenant act.  Sec. 80.

 B.  Petition may seek judgment for rent and eviction or just eviction.  Plaintiff may bring subsequent action for rent.  Sec. 81.

 C.  Summons form same as in any other type of suit.  Sec. 82.

 D.  Judgment may be for eviction only if no claim for rent brought.

 A.  Same as current law except in an appeal from an eviction case, the defendant can pay rent into court in lieu of filing a supersedeas bond.  Sec. 90(c).

 A.  New law conflicts with other recent amendment.  Sec. 95.

copyright (c) 2000 Bruce C. Ward