Below is a proposed article that Bruce Ward wrote in 1995 for submission to the Kansas Bar Association Journal. The article was not accepted for publication. All formatting, including footnotes, has been stripped from the version set forth below.
Obviously, some things have changed under Chapter 61 since the article
was written. All of the conclusions are, of course, those of the
author. If you have any questions, please contact the author (Bruce
THINGS YOUR MOTHER NEVER TOLD YOU ABOUT CHAPTER 61
Or perhaps better put, things your civil procedure teacher never told you. I refer to Chapter 61 of the Kansas Statutes Annotated, now known as the Code of Civil Procedure for Limited Actions. In this article I would like to talk about some of the peculiarities found therein and to give you an overall sense of what I think Chapter 61 stands for.
Legislative Council & the Justice Code
Chapter 61 as we generally know it
today was enacted by the 1969 Legislature as the Code of Civil Procedure
Before Courts of Limited Jurisdiction following a study done by the Legislative
Council. The results of the Council's study were published in a pamphlet
and submitted to the Legislature in late 1968. The report contained
a proposed bill which essentially was enacted in full by the 1969 Legislature
. The bill was based in large part on the law which formerly occupied
Chapter 61 entitled the Code of Civil Procedure Before Justices of the
Peace or more commonly called the Justice Code.
The objectives of the Legislative Council were (1) to standardize the jurisdiction, venue and remedies available in the various courts of limited jurisdiction, and (2) to make the procedure more compatible with the code of civil procedure. In meeting the second objective, the Council sought to retain the informality of pleading and shorter time frames found in the Justice Code. Certain discovery tools available under the Code of Civil Procedure (K.S.A., Chapter 60) were curtailed due to the limited amount in controversy and the volume of cases.
When the new Chapter 61 went into effect on January 1, 1970, we still had those lower courts in Kansas with names that sound odd today, like County Court, City Court, Magistrate Court and Court of Common Pleas. These were the courts of limited jurisdiction in the days before unification of our court system. When unification came in 1977, Chapter 61 was re-titled to what it is today.
A few significant revisions were
made by the 1990 Legislature following a second study done in 1988 by the
Judicial Council. Their report was also published. This study
was done in light of court unification which took effect earlier in 1977.
Coming some eleven years after unification, it must have been a well thought
out study. Most, if not all, of the changes suggested by this study
were adopted by the Legislature in 1990.
To fully appreciate Chapter 61 as it exists today, you should read the two studies noted above. You should also read in its entirety the old Justice Code. The provisions of the Justice Code are not found now in the new statute books. This means digging into one of the older books such as the 1949 General Statutes of Kansas and risking some chance of injury from lifting a heavy book and certainly some dirty clothes as the old book disintegrates in your lap as you flip through the pages.
Chapter 61 is similar in many respects to Chapter 60. After all, we are talking about a code of civil procedure in each case. I won't mention those many areas that are similar. But there are key differences which many practitioners have difficulty with when first venturing into the waters of Chapter 61. Even seasoned veterans think that Chapter 61 is simply a junior version of Chapter 60 and that whatever is not covered under Chapter 61 is by default covered under Chapter 60. There was such a catchall provision in the Justice Code. However, I've looked long and hard for something similar in the new code and it is not there.
The Two Things
The review I suggest above makes
two things clear:
(1) Chapter 61 is complete unto itself in most respects and is intended to stand on its own without dependence upon Chapter 60. When the Legislature wanted to make a part of Chapter 60 applicable to Chapter 61, it simply adopted that procedure in Chapter 61 by reference to the Chapter 60 provision.
(2) Chapter 61 is designed basically as a fast, simple and easy system to use in debt collection and other relatively small dollar cases.
It is difficult to separate a discussion of Chapter 61 from debt collection cases. The streamlined procedures of Chapter 61 are well suited for these type of cases. Both parties (creditor and debtor) are well served by the low cost, speed and simplicity of the procedures. The creditor benefits from a system that allows a claim to be quickly put in judgment and without the need for high cost proceedures. The debtor benefits from a system that is simple and one that can often be navigated without the formality of paperwork or the assistance of an attorney.
Additionally, most cases filed under Chapter 61 are suits to collect debt. The statistics statewide reflect an explosion in Chapter 61 filings in the last five years. This is partly the result of the bad check law and a liberalization of the garnishment law in 1989.
You can, of course, collect debts under Chapter 60. You can do lots of things under Chapter 60. There are many things you cannot do under Chapter 61. Some of these things I'm not sure why you would want to do anywhere. I mean, really, habeas corpus? Quo warranto?
The Four Things
When it comes right down to it, you
can do four things under Chapter 61:
(1) sue for recovery of money on a contract for the provision of goods, services or money;
(2) sue for tort damages which do not exceed $10,000;
(3) sue to recover personal property which has a value of not more than $10,000; and
(4) sue for recovery of possession of real property under the forcible detainer procedure.
No Dollar Limits
Here are a couple of points to remember.
Under K.S.A. 61-1603 a suit for recovery of money on a contract for the
provision of goods, services or money has no limitation on the dollar amount
as long as the debt is unsecured. This is a result of the 1990 revisions
noted above. Suits in tort and on secured debt are limited to $10,000
(exclusive of costs and interest). These dollar limitations are jurisdictional.
In other words, if you exceed the limits, there is no jurisdiction for
the court to hear the case. If there is no jurisdiction, guess what
kind of judgment you will end up with? (Hint, it has a funny smell.)
This was a more serious problem prior to the 1990 changes. Prior to then, the limit on all suits under Chapter 61 was $5,000. Many lawyers erroneously think that the 1990 change just upped the limit from $5,000 to $10,000 on all suits. Well now you know the truth and may it empower you to do great things under Chapter 61.
The second point to remember is that a forcible detainer can be brought under Chapter 61 regardless of the amount of rent owed. This was true even before the 1990 changes. This was probably so because there is no comparable procedure under Chapter 60 (unless you wish to try using ejectment under K.S.A. 60-1001). This second point may be less remarkable today since there is now no dollar limit on any type of suit based on unsecured debt.
The first thing a lawyer representing
a defendant in a Chapter 61 suit wants to know is: when do I file
my Answer, and what does it say. Thankfully, most pro se defendants
are not dying to know the answers to these questions. Well, you don't
have to file an Answer under Chapter 61. All the defendant or counsel
needs to do is get to the courthouse on the date and time specified in
the Summons and enter a plea to the allegations of the Petition.
Basically, the question to the defendant is, "Do you owe the money or not,
yes or no?" Some courts (shame on them) even allow a defendant to
enter their plea by telephone.
The time for appearance is determined by the court and shall be not less than 11 nor more than 35 days after the date the summons is issued. The summons must be served on the defendant in time to file a return of service as required by law. The return must be filed no later than 3 days before the appearance date for forcible detainer cases and no later than 5 days before the appearance date for all other cases.
Okay, now to let a couple of cats out of the bag. If the defendant wishes to rely on an affirmative defense, the defendant must file an appropriate written pleading, either on or before the appearance date if no appearance is made, or within 10 days thereafter if an appearance is made. This is good to know at trial when the defendant for the first time trots out affirmative defenses such as payment or statute of limitations.
Secondly, the defendant may, but need not, file a counterclaim, as this is not mandatory under Chapter 61. If you are brave, you can compel by motion the filing of a counterclaim. But this can backfire and the defendant might actually file one, and then what do you do? I say it is better not to encourage such behavior.
If you are seeking punitive damages, your pleading should state the amount of punitive damages sought. Of course your damages cannot exceed $10,000 since most likely your claim will be based in tort and not in contract.
What about discovery? Discovery
is severely limited under Chapter 61 because of the relatively low dollars
in controversy and the high volume of cases filed. Besides, what
is it you really need to know about the other side's case? That they
can't pay the bill?
If you wish to do discovery under Chapter 61 there are three main rules to remember:
(1) Only the plaintiff can use Request for Admissions. The time for the defendant to respond is 10 days.
(2) Interrogatories may be used only after the court has entered an order allowing their use. The response time is 15 days.
(3) Depositions may not be used for discovery but only as evidence at trial and only after the court has entered an order allowing the taking of the deposition.
If you find yourself in a suit under Chapter 61 and the fit is just too tight, you can move to transfer the case to Chapter 60. However, the right to do so is not automatic and good cause must be shown.
If the defendant fails to answer
or appear at the time specified in the summons, or at the time the matter
has been set for trial, the plaintiff can request the court to enter default
judgment without further notice. This is true even if the defendant
has made a prior appearance in the case. Contrast this with the provision
under Chapter 60.
The set aside of default judgments under Chapter 61 is noteworthy. The procedure under K.S.A. 60-260 (b) is to be followed except the motion shall be filed within 10 days from date of judgment when the defendant was personally served and within 45 days otherwise.
If you should have the misfortune of having one of your judgments set aside, particularly after attempting to enforce it, you can take comfort in the provisions of K.S.A. 61-1722 (e) which read as follows:
"(e) Whenever a party has commenced post-judgment proceedings for the enforcement of a judgment, and such judgment is subsequently set aside, reversed on appeal or otherwise nullified, such party shall not be liable for damages as a result of such postjudgment proceedings, unless it can be proven that the judgment upon which said proceedings were based was fraudulently obtained."
There is no comparable section under Chapter 60.
10 Day Rule
Special mention should be made of
the 10 day rule imposed by K.S.A. 60-206, which says that the 10 days within
which to act means 10 business days and not 10 calendar days. This
rule applies to Chapter 61 and is significant because so many deadlines
under Chapter 61 are 10 day deadlines (responsive pleadings, answers to
request for admission, set aside of default judgments, etc.).
And speaking of 10 days, does the 10 day stay under K.S.A. 60-262 apply to judgments under Chapter 61? Probably not. K.S.A. 60-262 has not been incorporated under Chapter 61 by K.S.A. 61-1725. There are two provisions under Chapter 61 relating to a stay upon appeal. A forcible detainer is stayed if an appeal is taken. An order of garnishment may not be issued under Chapter 61 until 10 days after judgment. Finally, the Justice Code had provisions for a stay of a judgment. None of these provisions were carried over to the new Chapter 61.
All of the above support the argument that if the Legislature had intended for there to be a general stay of execution under Chapter 61, it would have specifically enacted such a provision. Absent that, you are probably free to begin enforcing your Chapter 61 judgment immediately after entry of judgment except by garnishment.
It is clear that after entry of judgment in a forcible detainer action, a writ of restitution can be issued and served immediately.
A Trio of Puzzlers
Next, here's a trio of puzzlers about
1. There is no provision in Chapter 61 for the renewal or extension of judgments. I have heard it argued that the appropriate provisions of Chapter 60 to renew or extend a judgment do not apply to Chapter 61 judgments. There is a certain seductive ring to this argument, but not for the obvious reasons. The procedure to renew or extend judgments in Chapter 60 is in Article 24. K.S.A. 60-2403 (a) seems to apply to "... the entry of any judgment in any court of record in this state..." (emphasis provided by me). After unification we have only one district court and it is a court of record.
But if the provisions of K.S.A. 60-2403 (a) are meant to apply to Chapter 61 judgments, why did the Legislature add at the end of that section the provision that when a judgment goes dormant it ceases to be a lien on the real estate of the debtor? Chapter 61 judgments do not operate as liens on real estate.
And again, this is reinforced in the provisions of K.S.A. 60-2418 which allows a Chapter 61 judgment to be transcribed and become a Chapter 60 judgment. Why did the Legislature see fit to provide in subsection (b) that judgments so transcribed which become dormant can be revived in the same manner as other judgments in the district court? Does this mean that before a Chapter 61 judgment is transcribed it cannot be revived?
The Legislature may have intended that only judgments which are liens on real estate should have a terminable existence, and that judgments which are merely personal in nature (no lien on real estate) could live forever, subject only to the life of the judgment debtor. Perhaps the idea was to avoid a perpetual clouding of title to real estate.
I would love to leave you hanging on this one. But let me bring you back to some level of comfort. K.S.A. 61-2201 provides that all executions under Chapter 61 shall be taken in the manner provided in Article 24 of Chapter 60. As noted above, the procedure for renewal and extension of judgments is covered under K.S.A. 60-2403 and K.S.A. 60-2404 which is a part of Article 24.
Under the Justice Code, K.S.A. 61-1201 specifically provided that Chapter 61 judgments had a life of five years and that this life could be extended by issuance of an execution. The table of comparative sections at the beginning of the new Chapter 61 indicates that K.S.A. 61-1201 is now covered by K.S.A. 61-2201. As noted above, K.S.A. 61-2201 directs you to Article 24 of Chapter 60.
It may well be that the Legislature intended for Chapter 61 judgments to be renewable but forgot to clean up the procedures of Chapter 60 after the Justice Code was repealed. Perhaps in time, we will have a case go up on appeal to clarify the issue. Or perhaps the Legislature will act first. In the meantime, the safer course is to assume that Chapter 61 judgments go dormant unless the activity outlined in K.S.A. 60-2403 is pursued.
2. There are two ways you can make a Chapter 61 judgment operate as a lien on real estate.
a. One way is under K.S.A. 60-2202 (b) where you can file your Chapter 61 journal entry of judgment in any county (including the county where the judgment was originally obtained) and pay a $5.00 fee under K.S.A. 28-170, and magically the judgment becomes a lien against the non-exempt real estate of the debtor in whatever county you file in.
It is unclear, however, what you do next. K.S.A. 60-2202 (a) says that you can only issue executions in the county where the judgment was originally issued. Subsection (b) does not have this language. K.S.A. 28-170 says the $5.00 fee only buys you the right to file a judgment "on which execution process cannot be issued." K.S.A. 61-2201 says you cannot execute on real estate under a Chapter 61 judgment except as provided in K.S.A. 60-2418. Under K.S.A. 60-2202 (b) you may end up with a judgment lien that cannot be enforced.
b. The other way is to transcribe the Chapter 61 judgment under K.S.A. 60-2418 in the same county and pay a $15.00 fee. Then the clerk renumbers the case (presumably giving it a new Chapter 60 case number) and the judgment becomes a lien on the real estate of the debtor in that county. Further execution to satisfy the judgment is taken as for a judgment originally entered under Chapter 60.
Then if you wish to file in another county, you follow the procedure under K.S.A. 60-2202 (a) and pay a $5.00 fee to the other county. That section is clear that all executions are to be issued from the original county and of course, since you now have a Chapter 60 judgment, there is no restriction upon execution against real estate.
Many will wonder why this business of liens against real estate has any significance under Chapter 61. Most debtors who are sued under Chapter 61 either don't own any real estate or what they own is their homestead and hence, exempt from judgment liens. Good point.
3. Here's something to ask about judgment interest. The interest rate on Chapter 61 judgments is 12% and has been for a number of years. If you later transcribe a Chapter 61 judgment to Chapter 60, does it continue to bear interest at 12% or do you reduce the rate to that under Chapter 60 (currently, 7.5%)? Good question. (Sorry, I don't have all of the answers here.)
A Splitting of Hair
Okay, are you ready for some real
hair-splitting? Under Chapter 60, you can eventually have a civil
bench warrant issued if the debtor declines your invitation to appear in
court. The statute says that a bench warrant may be issued, "...If
after proper service of the citation by any officer or other person ..."
The same results can be affected under Chapter 61. However, the statute
there says that the bench warrant may be issued, "...If after proper service
of the citation by the sheriff, ..."
This didn't used to be such a big deal, as the sheriff served most, if not all, civil process. But after the 1992 changes to K.S.A. 60-303 (c) (3) and K.S.A. 61-1803 (c) (3), much process, and particularly contempt citations, is now served by special process servers.
Chapter 61 is not a junior version
of Chapter 60 and proceedings are not the same under each Chapter.
Chapter 61 is designed as a fast, simple and easy system to use in debt
collection cases. Chapter 60 is better suited for more complicated
matters, what sometimes some lawyers refer to as "real lawsuits".
There is a perception among those who practice in Chapter 61 that many of the bench and bar generally tend to overlook Chapter 61 and the goings on there. Who really cares about Chapter 61? Does it matter?
It matters because of the high volume of cases filed under Chapter 61 and the tremendous revenue generated by these cases.
Additionally, cases under Chapter 61 tend to produce a lot of papers filed with the clerks. The bench and bar as well as the Legislature should constantly be looking at ways to expedite Chapter 61 matters.