Happy New Year. Forgive me for the extended break in the action here. Year-end projects, holidays, a bout of the flu, etc. prevented me from writing recently.
Lesson. If you’re an assignee of a judgment, file a motion for substitution of party, with supporting evidence, which establishes that you own the judgment that you seek to enforce.
Case cite. H & S Fin. Inc. v. Parnell, 214 N.E.3d 1030 (Ind. Ct. App. 2023)
Legal issue. Whether a purported judgment creditor’s motion for proceedings supplemental was properly denied.
Vital facts. In 2022, the purported assignee of a judgment initiated proceedings supplemental to enforce a 2003 judgment. Importantly, the purported assignee did not first obtain an order establishing that it was the current owner of the judgment.
Procedural history. The trial court interestingly (and erroneously) found that “the statute of limitations to execute on the judgment would have expired” in 2014, ten years post-judgment. The upshot was that the motion for proceedings supplemental was denied. Purported assignee appealed.
Key rules. Indiana Code 34-55-9-2(2) states that money judgments constitute a lien upon the judgment debtor’s real estate until the expiration of ten years after the judgment. Those liens expire after ten years.
However, the judgment itself never truly “expires” under Indiana law. Indeed, judgments survive for ten additional years, and proceedings supplemental are available to enforce the judgment during that period.
It is only after twenty years that Indiana judgments are presumed to be satisfied under I.C. 34-11-2-12. That presumption must be pleaded by the judgment debtor through the assertion of payment. However, the presumption can be rebutted by the judgment creditor with evidence of non-payment.
The more relevant rule to Parnell was Indiana Trial Rule 69(E), which says that proceedings supplemental may be enforced by verified motion alleging that “the plaintiff owns the described judgment against the defendant.”
Holding. The Indiana Court of Appeals dismissed the purported judgment assignee’s appeal.
Policy/rationale. The Court concluded that assignee had not been substituted as a party and, as such, had not established that it owned the judgment. Thus, the fatal flaw of assignee’s case was not that the pro supp was late. Rather, it was because the assignee did not first obtain an order for substitution of party. The assignee did not establish by affidavit or verified motion that it owned the judgment (i.e. that it was the actual assignee) as required by Trial Rule 69(E).
Related posts.
- Indiana Judgment Lien (10 Years) and Judgment Enforcement (20 Years) Statutes Of Limitation
- Judgment Lien Principles Courtesy Of The Indiana Supreme Court
- How Long Is Too Long To Wait Before Enforcing A Money Judgment In Indiana?
- Indiana Supreme Court Discusses Proceedings Supplemental
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Part of my practice involves post-judgment enforcement matters. If you need assistance with a similar matter, please call me at 317-639-6151 or email me at john.waller@dinsmore.com. Also, don’t forget that you can follow me on Twitter @JohnDWaller or on LinkedIn, or you can subscribe to posts via RSS or email as noted on my home page.