tom234ut

Strategy needed to deal with flaw in judgement renewal motion in Utah

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I am looking for the best way to proceed. I believe that my issue is slam dunk as the DB did not follow proper procedure to renew.

DB got a Judgment 8 years ago and filed a motion to renew (just THREE days before expiration of 8 year SOL). I think I have found a major problem with their motion. The motion is two pages: first page is motion: "1. I request that the court renew the judgment in this case for the amount due on the date the new judgment is signed or the date the original judgment expired whichever is earlier. 2. I do not request a hearing. Signature" Page 2 is the certificate of service.

According to statute and court rule they MUST include an accounting/original judgment order AND and affidavit.

My question is on how to proceed. Here are the options I am thinking:
1) Do nothing. Court should simply deny this motion since it is insufficient.
2) After doing nothing if the court grants it, file a motion to vacate.
3) If that fails, then file an appeal. (I looked and there are no precedents about this statute)

I am thinking that if I file a response opposing the motion, then they might respond with the affidavit and the court would allow the judgment. What are your thoughts on the best way to proceed? I would hope that this issue is a slam dunk and that the judge simply denies it right out. If the motion is denied then we are scot-free on this issue (it has been long enough waiting out the 8 years, they have not made any real attempts to collect, so this was a big surprise)

 

In 2011 the Utah Legislator enacted the "Renewal of Judgment Act":

78B-6-1802.  Renewal by motion.
     A court of record may renew a judgment issued by a court if:
(1)    a motion is filed within the original action;
(2)    the motion is filed before the statute of limitations on the original judgment expires;
(3)    the motion includes an affidavit that contains an accounting of the original judgment and all postjudgment payments, credits, and other adjustments which are provided for by law or are contained within the original judgment;
(4)    the facts in the supporting affidavit are determined by the court to be accurate and the affidavit affirms that notice was sent to the most current address known for the judgment debtor;
(5)    the time for responding to the motion has expired; and
(6)    the fee required by Subsection 78A-2-301(1)(l) has been paid to the clerk of the court.

And there is Court Rule 58c to go with it:

Rule 58C. Motion to renew judgment.
(a) Motion. A judgment creditor may renew a judgment by filing a motion under Rule 7 in the original action before the statute of limitations on the original judgment expires. A copy of the judgment must be filed with the motion.
(b) Affidavit. The motion must be supported by an affidavit:
(b)(1) accounting for the original judgment and all post-judgment payments, credits, and other adjustments provided for by law or contained in the original judgment; and
(b)(2) affirming that notice was sent to the most current address known for the judgment debtor, stating what efforts the creditor has made to determine whether it is the debtor’s correct address.
(c) Effective date of renewed judgment. If the court grants the motion, the court will enter an order renewing the original judgment from the date of entry of the order or from the scheduled expiration date of the original judgment, whichever occurs first. The statute of limitations on the renewed judgment runs from the date the order is signed and entered.

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Here's an update. I went with strategy #1 and did nothing. Until there is a "submit for decision" filed on their part, the judge will never see it. For reasons I won't get into now, I think they are incompetent enough to never ask. I'll just keep an eye out and see what happens. I think the longer they wait, the more of a case I would have to have a judgment set aside, if it came to that. And being out of SOL, I would be scot-free. Maybe there's a theory of "tolling the time" but that wouldn't give them much of a window to refile the motion correctly.

  • Haha 1

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