Cross References.

Actions on judgment limited to eleven years,§ 5-215.

Arbitration awards, enforcement as judgments,§ 7-914.

Clerk’s fee for issuing execution upon abstract or transcript of judgment and filing same,§ 31-3201; for recording such execution,§ 31-3201.

Eminent domain proceedings, execution on behalf of defendants,§ 7-715; delivery of money to defendant upon his filing satisfaction of judgment,§ 7-717.

Inherent powers of courts to compel obedience to their judgments, orders and process,§ 1-1603.

Installment payment of judgments, motor vehicle accident cases,§ 49-1207.

Life insurance policies, proceeds exempt from creditors’ claims,§ 41-1833.

Nonjudicial days, executions may be issued on,§ 1-1607.

Stay on motion for new trial, Idaho R. Civ. P. 62(b).

Amendments.

The 2010 amendment, by ch. 34, substituted “as provided by the rules adopted by the supreme court” for “as herein provided” at the end, and deleted the former second paragraph which read: “In its discretion and on such conditions for the security of the adverse party or parties as are proper, the court may stay the execution of, or any proceeding to enforce, a judgment pending the disposition of a motion for a new trial made pursuant to section 10-602, Idaho Code, or judgment notwithstanding the verdict made pursuant to sections 10-224 and 10-602, Idaho Code, or a motion for relief from a judgment or order made pursuant to section 5-905, Idaho Code.” This section was amended by two 2015 acts which appear to be compatible and have been compiled together.

The 2015 amendment, by ch. 139, inserted “and for execution on judgments for restitution to victims of crime” in the first sentence and added the last sentence.

The 2015 amendment, by ch. 278, substituted “ten (10) years” for “five (5) years” in the first sentence.

The 2019 amendment, by ch. 175, inserted “or order of renewal” near the middle of the first sentence.

Effective Dates.

Section 6 of S.L. 2015, ch. 278, provided that the act should take effect on and after July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction.

Decisions Under Prior Law

Cloud on Title.

In mechanic’s lien foreclosure, where two judgment claimants assigned their judgments to another judgment claimant and heirs of deceased owner assigned their interest to same assignee so as to cause a merger of the liens with the title, an unassigned recorded judgment of another claimant is a cloud on the title which must be removed to render same marketable. Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945), overruled on other grounds, Mitchell v. Flandro, 95 Idaho 228, 506 P.2d 455 (1972).

Delay Issuing Execution.

Judgment creditor may delay taking out execution against his debtor, as long as this statute permits him to claim the issuance of execution, without being chargeable with laches or estoppel. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940).

General Rule.

Failure of judgment creditor to take out an execution against the judgment debtor within the 16 days between the date of his judgment and the date on which the debtor filed his petition in bankruptcy did not preclude the creditor from urging that the debtor’s bankruptcy relieved him of the duty of taking out an execution against the debtor as a “condition precedent” to action against the sureties of the bond given to discharge the writ of attachment. Stewart v. Slater, 61 Idaho 628, 105 P.2d 729 (1940). General Rule.

Under this section, the party in whose favor a judgment is given may at any time within five [now 10] years after the entry thereof have a writ of execution issued for its enforcement. Bashor v. Beloit, 20 Idaho 592, 119 P. 55 (1911).

Grounds for Injunction.

Execution will not be enjoined on ground of payment, settlement, or discharge of claim, unless judgment debtor was prevented by fraud, circumvention, deceit, or accident from making such defense in the action. Lewis v. Warren & Anderson Furniture Co., 31 Idaho 4, 168 P. 1142 (1917).

Judgments Recovered by United States.

Provision of statute giving judgment creditor right to execution within five [now 10] years of judgment entry was binding, as to limitation period, with respect to judgments recovered by United States. Custer v. McCutcheon, 283 U.S. 514, 51 S. Ct. 530, 75 L. Ed. 1239 (1931).

Revivor.

Revivor under the statute is not a new suit but merely a proceeding in aid of execution. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Scire Facias.

Writ of scire facias has been abolished and this section and§ 11-312 now serve its function. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

Am. Jur. 2d.

C.J.S.

Actions of Claim and Delivery.

Losing party in action of claim and delivery does not have the option of returning or paying for property as he may elect; property must be returned in specie if it can be done and it is only in case it can not be so returned that value thereof can be paid. Johnson v. Fraser, 2 Idaho 404, 18 P. 48 (1888).

Amount Stated in Judgment.

This statutory directive, that a writ of execution identify the judgment and “the amount thereof,” implicitly requires that the judgment itself state an amount or set forth the method by which an amount can be ascertained. When there exists no judgment (or supplemental order) satisfying this requirement, a writ of execution cannot be issued in compliance with this section. Operating Eng’rs Local Union 370 v. Goodwin Constr. Co., 104 Idaho 83, 656 P.2d 144 (Ct. App. 1982).

Costs and Interest.

Although the plaintiff unions waived their right to take exception to the memorandum of costs filed by the prevailing defendant employer, it did not follow that the memorandum of costs was deemed approved in its entirety and that a writ of execution could be issued thereon; before a writ of execution could issue on a money judgment, the court, by judgment or supplemental order, must have fixed the amount of recovery; accordingly, where the court neither fixed the amount of costs in the judgment itself nor entered a separate order fixing the amount of costs, a writ of execution for the costs should not have been issued. Operating Eng’rs Local Union 370 v. Goodwin Constr. Co., 104 Idaho 83, 656 P.2d 144 (Ct. App. 1982). Costs and Interest.

Judgment should include all costs at the date of entry and thereafter bears interest at seven per cent from such date on the full amount of the entire judgment. Bashor v. Beloit, 20 Idaho 592, 119 P. 55 (1911).

Am. Jur. 2d.

C.J.S.

Cross References.

Penalty for failure to return,§ 31-2205.

Return is prima facie evidence of facts,§ 31-2204. Return of process by sheriff after expiration of predecessor’s term of office,§ 31-2225.

Levy by Recordation.

Where a judgment becomes a lien against real property, it is necessary to levy upon the property by recordation of a writ of execution. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Mandatory Procedure.

Section 8-506 provides a mandatory procedure for levying on real property pursuant to a writ of execution as well as a writ of attachment. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Am. Jur. 2d.

C.J.S.

Cross References.

Enforcement of judgments, motor vehicle accident cases,§ 49-1201 et seq.

Sufficiency of Writ.

Recitals of writ may be amended upon proper showing. Wilson v. Gray, 5 Idaho 218, 47 P. 942 (1897).

Writ which fails to direct proper officers to execute judgment is not void. Wilson v. Gray, 5 Idaho 218, 47 P. 942 (1897).

Am. Jur. 2d.

C.J.S.

Cross References.

Limitation on judgment,§ 5-215.

Amendments.

The 2015 amendment, by ch. 278, substituted “ten years” for “five years” in the section heading and substituted “ten (10) years” for “five (5) years” in the text of the section.

Effective Dates.

Section 6 of S.L. 2015, ch. 278, provided that the act should take effect on and after July 1, 2015, and shall apply only to judgments issued on and after July 1, 2015, by a court of competent jurisdiction.

Method not Exclusive.

In abolishing writ of scire facias and enacting a substitute therefor by the provisions of this section, substitute was not intended to be the exclusive method by which a judgment might be revived or kept alive. Bashor v. Beloit, 20 Idaho 592, 119 P. 55 (1911).

Revivor.

The whole judgment must be revived in entirety against all of the several defendants. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

An action for revivor, under this statute, is not regarded as a new action but a proceeding in aid of an execution on an old judgment. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932). Where an order of revivor contains no decretal language against a certain judgment debtor, the only inference which can be drawn from such omission is that of payment and consequent presumption of discharge and release. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Scire Facias.

Writ of scire facias is abolished and this section and§ 11-312 now serve its function. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

Am. Jur. 2d.

§ 11-106. Execution after death.

Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced as follows:

1. In the case of the death of the judgment creditor, upon the application of his executor or administrator or successor in interest.
2. In case of the death of the judgment debtor, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon.

History.

C.C.P. 1881, § 435; R.S., R.C., & C.L., § 4475; C.S., § 6915; I.C.A.,§ 8-106.

Execution Issued During Lifetime.

Execution issuing during life of judgment creditor does not abate on his death. Hill v. Joseph, 58 Idaho 267, 72 P.2d 283 (1937).

Money Judgments.

A plain money judgment does not fall within purview of this section, and an execution to enforce it can not issue after the death of the judgment debtor. Rose v. Dunbar, 20 Idaho 1, 115 P. 920 (1911).

Am. Jur. 2d.

C.J.S.

Cross References.

Sale of corporate franchises on execution,§ 30-201 et seq.

Sale of homestead on execution,§ 55-1101 et seq.

Sheriffs’ Duty to Enforce and Administer.

County sheriffs were properly named as defendants in a suit challenging the constitutionality of Idaho’s postjudgment garnishment procedures because they had the statutory duty to enforce and administer allegedly unconstitutional state statutes. Chaloux v. Killeen, 886 F.2d 247 (9th Cir. 1989).

Am. Jur. 2d.

C.J.S.

Constitutionality.

Inmate’s constitutional attack on this section was denied because inmate failed to satisfy the requirement of standing, where his constitutional claims were highly theoretical, and he did not allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested would prevent or redress the claimed injury. Freeman v. State, 134 Idaho 481, 4 P.3d 1132 (Ct. App. 2000).

Cross References.

Execution on debts due from state,§ 11-202.

Sheriff not required to keep property claimed as exempt unless undertaking given,§ 11-203.

Amendments.

The 2017 amendment, by ch. 303, inserted “or by court order” near the middle of the first sentence.

Money in Custody of Court.

An execution can not run against money in the custody of the court, since the court has inherent power to control a fund in the hands of its clerk and direct its distribution, and the clerk of the court holding money does not do so as an individual but as an officer of the court and may not be sued therefor. Anderson v. Ferguson, 56 Idaho 554, 57 P.2d 325 (1936).

Spouses.

Where a married man (or woman) has entered into a contract for a community obligation, he has personally obligated himself under the contract, and his judgment creditor under the contract may execute upon the separate property for the satisfaction of a judgment against him. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Trustee’s Interest.

The general rule is that the trustee’s interest in the res of the trust can not be subjected to an execution against such trustee for his individual debt. Cunningham v. Bank of Nampa, 13 Idaho 167, 88 P. 975 (1907).

Am. Jur. 2d.

C.J.S.

ALR.

Allowance of attorneys’ fees in civil contempt proceedings. 43 A.L.R.3d 793.

Injury to credit standing, reputation, solvency, or profit potential as elements of damage resulting from wrongful execution against business property. 55 A.L.R.3d 911.

Cross References.

Actions against sheriffs, notice to indemnitors,§ 12-612.

Prior Laws.

Former§ 11-203, which comprised C.C.P. 1881, § 438; R.S. & R.C., § 4478; am. 1913, ch. 71, § 1, p. 125; am. 1969, ch. 462, § 1, p. 1298; am. 1971, ch. 258, § 1, p. 1036, was repealed by S.L. 1991, ch. 165, § 9.

Amendments.

The 2017 amendment, by ch. 303, in the introductory paragraph, substituted “section 11-707, Idaho Code” for “section 8-507C, Idaho Code” at the end of the second sentence and inserted “Except as provided in subsection (h) of this section” at the beginning of the last sentence; substituted “section 11-709, Idaho Code” for “section 8-507A, Idaho Code” at the end of the first sentence in subsection (a); and added subsection (h).

Attorney Fees.

Although subsection (b) of this section permits an award of costs, but not attorney’s fees, nothing in that paragraph bars an award of attorney’s fees under§ 12-120. Credit Bureau of E. Idaho, Inc. v. Acedo, 164 Idaho 444, 431 P.3d 279 (Ct. App. 2018).

Compliance.

Perfected security interest survived the secured creditor’s failure to comply with this section because the creditor did not forfeit its security interest by virtue of failing to file a third-party claim, and the doctrine of quasi-estoppel did not bar the creditor from recovering. The security interest extended to the proceeds which a judgment creditor realized from the sheriff’s sale of the collateral. Keybank Nat’l Ass’n v. PAL I, LLC, 155 Idaho 287, 311 P.3d 299 (2013).

Constitutionality.

District court’s conclusion that a secured creditor maintained its secured interest in collateral, although it failed to comply with this section, did not violate the Equal Protection Clause of U.S. Const., Amend. XIV because judgment debtors and secured parties holding an interest in their property were entirely different classes of people and just because a judgment debtor had to file a claim of exemption to protect the judgment creditor’s property rights, it did not follow that a secured party had to do the same. Keybank Nat’l Ass’n v. PAL I, LLC, 155 Idaho 287, 311 P.3d 299 (2013).

Construction with Other Laws.

Since§ 11-308 imposes a duty to “deliver” property, but such language is absent in this section, the plain meaning of this section is that the sheriff is required only to “release” the property, not that he is affirmatively required to deliver it to a third party claimant upon release. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999).

Costs Not Awarded.

Idaho R. Civ. P. 54(d)(1)(F) does not provide for any exceptions for adding sheriff’s fees to a judgment, and neither the fees nor the cost of alternative transportation are costs recoverable under subsection (b) of this section. Therefore, although a debtor prevailed on the issue of an exemption, a magistrate judge did not err by adding the cost of serving the writ of execution to a judgment under Idaho R. Civ. P. 54(d)(1)(F), and there was no evidence that this was a second levy precluding the addition of the costs under subsection (d) of this section. Powell v. Powell, 142 Idaho 815, 135 P.3d 761 (2006).

Notice.

Receiving notice of a third party claim for a release of property under this section does not constitute notice of a demand for the return of property for purposes of a conversion claim. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999).

Principal’s company attempted collection by way of levies and executions to which certain exemptions and third-party claim issues arose; the agent asserted the principal failed to file a copy of the claim to which the motion to contest the third-party claim applied. The supreme court determined that the company complied with this section by attaching the claims to an affidavit. VFP VC v. Dakota Co., 141 Idaho 326, 109 P.3d 714 (2005).

Post-judgment Attorney Fees.

District court erred to the extent that it ruled that this section required an assignee to be the prevailing party at a hearing on a client’s claim of exemption in order to be awarded fees and costs, and that this section provided the exclusive basis for any award of post-judgment attorney fees. Action Collection Servs. v. Bigham, 146 Idaho 286, 192 P.3d 1110 (Ct. App. 2008).

Presumption of Lawfulness.

A sheriff’s possession of property seized pursuant to a validly issued writ of execution is lawful, pending the outcome of proceedings under this section. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999).

Summary Judgment.

Where the timeliness of the county defendants’ actions in releasing property was a material issue in the case, and where it related to a cross-claim by another party and was not put at issue by the plaintiff’s summary judgment motion, the magistrate erred in dismissing the county defendants from the action. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999).

Decisions Under Prior Law

Effect of accepting indemnity bonds. Right of action.

Duties and Liabilities of Sheriff.

This section does not entitle sheriff to keep property levied on after third party claim is filed and institute an interpleader suit to have the rights of claimants determined. The property should be returned to the judgment creditor or turned over to third party claimants. Aker v. Coleman, 60 Idaho 118, 88 P.2d 869 (1939).

In an action for damages against a sheriff and the surety on his official bond, a complaint alleging that the sheriff levied on property under an execution, that third party claims were filed, that the sheriff instituted interpleader proceedings which were determined in favor of the execution plaintiff, and that a goodly portion of the property had slipped from the sheriff’s control but not because he considered himself not further bound to keep the property for failure of execution plaintiff to give an indemnity bond, was sufficient as against a general demurrer. Aker v. Coleman, 60 Idaho 118, 88 P.2d 869 (1939).

Effect of Accepting Indemnity Bonds.

Where property levied upon by constable is claimed by stranger, the officer is not bound to proceed further with execution of writ; but when he has demanded and accepted indemnity, he is bound to proceed and rely on his bond in indemnity. Smith v. Graham, 25 Idaho 174, 136 P. 801 (1913); Smith v. Graham, 30 Idaho 132, 164 P. 354 (1917).

Right of Action.

Action for damages for trespass to personal property of plaintiff, namely ousting plaintiff from possession and control of his truck and contents was not an action for wrongful attachment under§ 8-503 nor a case in which plaintiff was entitled to appear in the probate court and move for dissolution pursuant to§ 8-534, the remedy and rights given by those sections being available only to defendant in the case in which attachment is issued; plaintiff’s only remedy was either by way of intervention in the attachment case under former§ 5-322 (repealed) or by a third party claim under former§ 8-532 (repealed) and this section. Jaquith v. Stanger, 79 Idaho 49, 310 P.2d 805 (1957).

Sheriff’s Jury.

Verdict of a sheriff’s jury had under this section is merely advisory to the officer and for his protection and is not res judicata. Smith v. Graham, 25 Idaho 174, 136 P. 801 (1913).

Verified Claim.

The purpose of requiring a verified claim from the third party is to assure that the claim meets a minimum threshold of reliability before putting the attaching plaintiff to the burden of indemnifying the sheriff on demand. Slayton v. Zapp, 108 Idaho 244, 697 P.2d 1258 (Ct. App. 1985).

Where the attaching plaintiff never was put to the burden of indemnifying the sheriff because the parties stipulated that the third party could substitute a bond for the value of the automobile to be held by the sheriff in place of the vehicle, the sheriff thus was relieved of any potential liability to the third party for which indemnity would be sought from the attaching plaintiff and the reason for requiring verification did not exist and the provisions of § 8-527 and this section were not applicable; thus, the lack of verification did not bar the subsequent judicial proceeding to determine the third party’s claim to the car. Slayton v. Zapp, 108 Idaho 244, 697 P.2d 1258 (Ct. App. 1985). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

ALR.

Cross References.

Manner of claiming exemption,§ 11-203.

Wife’s control of separate property,§ 32-904.

Separate property defined,§ 32-903.

Prior Laws.

Former§ 11-204, Exemption in favor of married woman, which comprised C.C.P. 1881, § 439; R.S., R.C., & C.L., § 4479; C.S., § 6919; I.C.A.,§ 8-203, was repealed by S.L. 2011, ch. 86, § 1.

Effective Dates.

Section 3 of S.L. 2011, ch. 86 declared an emergency. Approved March 16, 2011.

Constitutionality.

Former section is unconstitutional, as it treated husbands and wives unequally. Under this section, the earnings of a wife were exempt from execution against her husband, but the earnings of a husband were not exempt from execution against his wife. Additionally, the unequal treatment under this section was arbitrary and did not demonstrate a substantial relation to the objective of community property legislation. Credit Bureau of E. Idaho, Inc. v. Lecheminant, 149 Idaho 468, 235 P.3d 1188 (2010) (see 2011 repeal and enactment).

Earnings of Wife.

Profits of Wife’s Separate Property.

As to earnings of married woman on account of personal services while she is living with her husband, exemption applies only such earnings as are due and owing; after such earnings have been paid or converted into other property, exemption granted by this section no longer obtains. McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929). Profits of Wife’s Separate Property.

Under the provisions of this section, the increase of a married woman’s separate property (in this case consisting of cattle) is exempt from execution against her husband. Bank of Nez Perce v. Pindel, 193 F. 917 (9th Cir. 1912); Thorn v. Anderson, 7 Idaho 421, 63 P. 592 (1900).

Issues and profits arising from investment of separate property of wife are not liable upon execution against her husband. Evans v. Kroutinger, 9 Idaho 153, 72 P. 882 (1903); Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66 (1913).

ALR.

§ 11-205. Exemptions in general. [Repealed.]

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 440; R.S., § 4480; am. 1895, p. 85, § 1; reen. 1899, p. 251, § 1; reen. R.C., § 4480; am. 1913, ch. 60, § 1, p. 245; am. 1915, ch. 24, § 1 p. 76; compiled and reen. C.L., § 4480; C.S., § 6920; I.C.A.,§ 8-204; am. 1933, ch. 97, § 1, p. 154; am. 1937, ch. 104, § 1, p. 154; am. 1970, ch. 11, § 1, p. 18, was repealed by S.L. 1978, ch. 348, § 3. For present law, see§§ 11-601 to 11-608.

Earnings.

A debtor who fails to adhere to the requirements imposed on a debtor-in-possession on use of funds and selling of assets, who fails to accurately or timely report financial transactions, who does not disclose transactions of close to a quarter million dollars, who sells assets without code or court approval, who fails to immediately surrender assets and records to the trustee on conversion of the case from Chapter 11 to Chapter 7, and who instead continues to take funds from estate accounts as a chapter 7 debtor without authority, forfeits the ability to credibly argue that the court and creditors should attribute some hypothetically unpaid income to him and qualifies for no restrictions on the garnishment of his funds. In re Hoyle, 2013 Bankr. LEXIS 2640 (Bankr. D. Idaho June 28, 2013).

Federal References.

Chapter XIII of the Bankruptcy Act may be found in 11 U.S.C. § 1301 et seq.

Effective Dates.

Section 4 of S.L. 1970, ch. 11 provided that the act should become effective on the first day of July, 1970. CASE NOTES

Calculating Amount.

Where injured worker received a lump sum settlement of worker’s compensation benefits, and worker owed child support and arrearages from two previous marriages and support obligations for the care of another child, the district court erred in holding that attorney fees deducted from the lump sum settlement agreement must be added back into the settlement amount before garnishment percentage under this section was taken, for pursuant to§ 72-803, claims for attorney fees were subject to approval by the industrial commission (commission) and that as the commission had approved the lump sum agreement in its order and had also approved and awarded the attorney fees, the attorney fees were not part of the lump sum award and were not subject to the provisions of this section. State Dep’t of Health & Welfare ex rel. Lisby v. Lisby, 126 Idaho 776, 890 P.2d 727 (1995).

Earnings.

A debtor who fails to adhere to the requirements imposed on a debtor-in-possession on use of funds and selling of assets, who fails to accurately or timely report financial transactions, who does not disclose transactions of close to a quarter million dollars, who sells assets without code or court approval, who fails to immediately surrender assets and records to the trustee on conversion of the case from Chapter 11 to Chapter 7, and who instead continues to take funds from estate accounts as a chapter 7 debtor without authority, forfeits the ability to credibly argue that the court and creditors should attribute some hypothetically unpaid income to him and qualifies for no restrictions on the garnishment of his funds. In re Hoyle, 2013 Bankr. LEXIS 2640 (Bankr. D. Idaho June 28, 2013).

Debtors’ exemption claim for a state tax refund was disallowed because, once the funds were withheld from debtors’ earnings and paid to the state, the money belonged to the state, and the debtor was left with only a claim for a refund, meaning that the funds were not “earnings” or “disposable earnings” for purposes of the exemption statute. In re Egbert, 2016 Bankr. LEXIS 3685 (Bankr. D. Idaho Oct. 11, 2016).

Commissions that a debtor received after she declared Chapter 7 bankruptcy, when an insured renewed a policy that the debtor had sold to the insured before she declared bankruptcy, were property of her bankruptcy estate, because the right to receive those commissions existed pre-petition and the debtor was not required to perform personal services postpetition to receive renewal commissions. However, to the extent that the first-year commissions and the first-year advances that the debtor received pre-petition were property of her bankruptcy estate, 75% of those payments were exempt from creditors’ claims under this section and the debtor could exempt the balance of those earnings, and part of her renewal commissions, under§ 11-605. In re Lott, 2018 Bankr. LEXIS 2126 (Bankr. D. Idaho July 19, 2018).

Inmate’s Account.

Although an inmate’s account is similar to a bank account into which earnings may have been deposited, if the inmate has made no effort in tracing his alleged wages, which he claims are exempt from garnishment under this section, the funds are commingled; thus, any exemption would fail under§ 11-604. Hooper v. State, 127 Idaho 945, 908 P.2d 1252 (Ct. App. 1995).

Worker’s Compensation Benefits.

Where injured worker received a lump sum settlement of worker’s compensation benefits, and worker owed child support and arrearages from two previous marriages and support obligations for the care of another child, the exemption provision of§ 72-802, which exempts all worker’s compensation awards from creditors claims did not apply to claims for the enforcement of support orders as§ 7-1203 granted the department of health and welfare, bureau of child support enforcement (department) garnishment rights and other remedies against the proceeds of worker’s compensation awards. Under former§ 7-1204 (now repealed), this section limited garnishment by the department to 55% of the worker’s compensation lump sum settlement benefits payable to the injured worker child support obligor. State Dep’t of Health & Welfare ex rel. Lisby v. Lisby, 126 Idaho 776, 890 P.2d 727 (1995).

Am. Jur. 2d.

C.J.S.

Cross References.

Arbitration awards, enforced as judgments,§ 7-914.

Attachment, return of writ,§ 8-537; discharge of writ when lien lost,§ 8-538.

Attorney’s lien for fees,§ 3-205.

Civil arrest, return,§ 8-115.

Claim and delivery actions, service of papers,§ 8-304.

Costs on appeal, enforcement,§ 12-114.

Execution for fees, due to officer,§ 31-3215.

Forcible entry and unlawful detainer against tenant, delay of execution to permit payment of rent,§ 6-316.

Franchise may be levied upon,§ 30-201.

Fraternal benefit societies, benefits not subject to seizure under process,§ 41-3217.

Imprisonment for debt except in cases of fraud prohibited,Idaho Const., Art. I, § 15.

Judgment against sheriff conclusive as to his right to recover against sureties,§ 12-612.

Judgment to be satisfied out of attached property,§ 8-528.

Lien to be discharged when writ is lost or destroyed,§ 8-538.

Nonjudicial days, executions may be served on,§ 1-1607.

Penalty for neglect or refusal of sheriff to pay over money,§ 31-2207.

Receiver, appointment to carry judgment into effect,§ 8-601.

Satisfaction of judgment, Idaho R. Civ. P. 58(b). Sheriff must execute each process regular on its face,§ 31-2213.

Sheriff must exhibit process,§ 31-2214.

Sheriff’s commissions for receiving or paying over money on execution,§ 31-3203.

Sheriff’s fee for levying execution,§ 31-3203; for preserving property under execution,§ 31-3203; for making return of writ,§ 31-3203.

Amendments.

The 2017 amendment, by ch. 303, substituted “sections 11-703, 11-706, 11-707, 11-709 and 11-710, Idaho Code” for “8-507 through 8-507D, Idaho Code” near the end of the last paragraph.

Construction of Section.

After the execution has issued and been placed in the hands of the sheriff, there is nothing left for the judgment creditor to do and nothing more could have been done whether he be dead or alive. It would be unreasonable to hold that the sheriff must satisfy himself at the time he makes the sale under execution, or at any other times, that the judgment creditor is alive, or that the execution sale would be void if it happened that at the moment of the sale the judgment creditor was dead. Hill v. Joseph, 58 Idaho 267, 72 P.2d 283 (1937).

The holder of a sheriff’s certificate of sale is entitled to either the possession of property or to demand rent from the tenant or vendee, as the case may be, in possession, from the date of the sale. In the instant case, appellant was let into possession of the property and was entitled to remain in possession provided he made the payments of the purchase-price in accordance with the terms of his contract. Sherwood v. Daly, 58 Idaho 744, 78 P.2d 357 (1938).

Levy by Recordation.

Where a judgment becomes a lien against real property, it is necessary to levy upon the property by recordation of a writ of execution. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Mandatory Procedure.

Section 8-506 provides a mandatory procedure for levying on real property pursuant to a writ of execution as well as a writ of attachment. Fulton v. Duro, 107 Idaho 240, 687 P.2d 1367 (Ct. App. 1984), aff’d, 108 Idaho 392, 700 P.2d 14 (1985).

Release of Exempt Property.

After sheriff has returned an execution, he has no authority to release the property levied on, on the ground that it is exempt, but such a release can only be obtained by order of the court. Roth v. Duvall, 1 Idaho 149 (1867).

Cited

Where constable seizes property under an attachment, he may sell the attached property under an execution issued on same and directed to the sheriff of the county. Pecotte v. Oliver, 2 Idaho 251, 10 P. 302 (1886). Cited Gem Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966); Gem Valley Ranches, Inc. v. Small, 92 Idaho 232, 440 P.2d 352 (1968); Suchan v. Suchan, 113 Idaho 102, 741 P.2d 1289 (1986).

Am. Jur. 2d.

C.J.S.

Cross References.

Attachment, sale of perishable property under writ of,§ 8-525; order for sale of property in interest of parties,§ 8-526; claim of property by third person or as exempt,§ 8-527; sale of attached property to satisfy judgment,§ 8-528.

Liability of sheriff for refusal to pay over money,§ 31-2207.

Party in possession of property, injunction against injury while execution sale pending,§ 6-407; damages for injury pending conveyance after sale,§ 6-408.

Sheriff’s fee for advertising property for sale on execution,§ 31-3203.

Evidence.

Notice of Sale.

Sheriff’s certificate of sale and sheriff’s deed constitute prima facie evidence of the recital contained therein, and where it appears from positive extrinsic evidence that the land was not actually offered for sale or sold at the time and place stated in the notice of sale and as recited in the deed, then such sale is void and the deed ineffective. Terry v. Terry, 70 Idaho 161, 213 P.2d 906 (1950). Notice of Sale.

Notice of sale of real estate levied upon by execution may be made either by posting notices or by publication, in discretion of sheriff or attorney for execution plaintiff. Ollis v. Kirkpatrick, 3 Idaho 247, 28 P. 435 (1891).

Am. Jur. 2d.

C.J.S.

Remedy Exclusive.

This section provides the exclusive remedy for failure to comply with the notice provisions of§ 11-302. Nixon v. Triber, 100 Idaho 198, 595 P.2d 1093 (1979).

Sheriff’s Deed.

Sheriff is statutorily compelled to issue a sheriff’s deed once the redemption period has expired, and the issuance of the deed is a mere ministerial act which is in no manner negligent; therefore, sheriff’s negligent action in undertaking sale without proper notice on December 17, 1975 was not covered under insurance policy issued May 12, 1976 even though deed was issued June 17, 1976. County of Kootenai v. Western Cas. & Sur. Co., 113 Idaho 908, 750 P.2d 87 (1988).

Amendments.

The 2018 amendment, by ch. 121, deleted “between the hours of nine (9:00) in the morning and five (5:00) in the afternoon” from the end of the first sentence and deleted “be within view of those who attend the sale, and” following “it must” near the beginning of the fourth sentence.

Direction of Judgment Debtor.

Defendant has right to direct the order in which property levied upon shall be sold. Injunction order in a proceeding to which defendant was not a party, and of which he had no notice, directing that property levied upon be sold in an order different from that directed by defendant is void as to defendant and can not deprive him of his statutory right. Wooddy v. Jameson, 5 Idaho 466, 50 P. 1008 (1897).

Judgment debtor, through attorney, being present at sale with right to direct order in which property should be sold, will not afterwards be heard to complain of manner in which it was sold. Coghlan v. City of Boise, 36 Idaho 613, 212 P. 867 (1923).

Where there is more than one judgment debtor and they can not agree, there is no error in sheriff’s following directions of one, and, where there is no showing of fraud or illegality, sale will not be set aside. Federal Land Bank v. Wood, 43 Idaho 502, 253 P. 833 (1927).

Foreclosure Sales.

Where decree of foreclosure is silent as to the manner or order in which a sale of real estate shall be conducted, this section governs. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Words “third person” in this section do not include defendant in foreclosure suit, but refer to one not party to suit who acquired title to portion of land subject to judgment. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Irregularity of Sale.

Sale of drilling equipment, some of which was bulky but capable of being moved, was void where property was scattered in surrounding mines and not visible to bidders at the sale, where it was not shown that it was not practicable to gather the property at one or more of the storage points and hold the sale there. Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., 77 Idaho 309, 291 P.2d 874 (1955).

Sale of two lots separately at a mortgage foreclosure sale was irregular and not in compliance with this section where house and garage were located on both lots, since it was apparent that both lots were used as one unit or parcel. Gaskill v. Neal, 77 Idaho 428, 293 P.2d 957 (1956).

Irregularity of separate sale of adjoining lots was not cured because one person purchased both lots. Gaskill v. Neal, 77 Idaho 428, 293 P.2d 957 (1956).

Reasonable Sale.

Where, although the land was contiguous, it had been leased out and farmed in several parcels on prior occasions, and the magistrate court found the boundaries of the parcels were established by survey markers as well as farm and county roads, the sale in parcels, even if those parcels were not adapted for separate and distinct enjoyment, was a reasonable means of selling the land profitably. Suchan v. Suchan, 113 Idaho 102, 741 P.2d 1289 (1986).

Redemption Period.

Sale En Masse.

Although the creditor argued that no appellate court had construed the language of§ 11-402, governing redemptions, or ruled on whether the sale of the property in separate parcels pursuant to this section necessarily dictated that redemption had to be in like manner for separate parcels, thus invoking a six-month redemption period; the creditor’s argument appeared to be premised upon an earlier description of the property as a single tract but, because the property was divided into tracts less than 20 acres, the 6-month redemption period, not the 1-year period for tracts larger than 20 acres, applied. Nez Perce Tribe v. Little Hope Invs., 140 Idaho 219, 91 P.3d 1123 (2004). Sale En Masse.

Execution sale in a lump of tract of land consisting of three separate lots, any one of which was worth many times amount of bid, should be set aside. Ollis v. Kirkpatrick, 3 Idaho 247, 28 P. 435 (1891).

Question as to whether or not several lots or tracts or parcels of land have been sold together under one bid instead of separately is a question properly to be presented to the court from which execution issued and on motion to set aside sale for irregularity. It can not be raised for the first time on appeal either in same or a collateral proceeding. Foore v. Simon Piano Co., 18 Idaho 167, 108 P. 1038 (1910).

Sale en masse is not prohibited when lots or parcels can not be separately sold. Coghlan v. City of Boise, 36 Idaho 613, 212 P. 867 (1923).

Where land is contiguous and is owned and farmed as one tract, and there are no peculiar marks or circumstances to distinguish one piece from another, it cannot be said, as a matter of law, that it is divided into separate lots or parcels. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Where the evidence indicated that a parcel of land, which was the subject of a foreclosure action, was best utilized as one lot and could not be sold in separate parcels without material injury to the parties, court’s order that the property be sold in one parcel did not violate this section. Farm Credit Bank v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994).

Sale on Holiday.

An execution sale is a ministerial act rather than “judicial business” as that term is used in§ 1-1607, and execution sales conducted on holidays are valid. Ketterer v. Billings, 106 Idaho 832, 683 P.2d 868 (1984).

Sale to Highest Bidder.

Officer, having from appellant a far more advantageous bid than that of purchaser, should have cried the bid and, if no advance was made, sold thereon, or if in doubt as to his duty, should have postponed the sale. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Setting Aside Sale.

Proper remedy to set aside a judicial sale which has been wrongfully made, prior to the execution of the sheriff’s deed, is by motion in the principal action. Notice of the motion should be served upon adverse party and upon purchaser. Wooddy v. Jameson, 5 Idaho 466, 50 P. 1008 (1897).

Sale of separate parcels of realty en masse in disregard of this section is not void but only voidable and may be set aside upon proper and timely application. Coghlan v. City of Boise, 36 Idaho 613, 212 P. 867 (1923).

As a general rule, mere inadequacy of consideration is not sufficient ground for setting aside sheriff’s sale, but gross inadequacy coupled with very slight additional circumstances is sufficient. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927). Sheriff’s certificate of sale and sheriff’s deed constitute prima facie evidence of the recitals contained therein, and where it appears from positive extrinsic evidence that the land was not actually offered for sale or sold at the time and place stated in the notice of sale and as recited in the deed, then such sale is void and the deed ineffective. Terry v. Terry, 70 Idaho 161, 213 P.2d 906 (1950).

Where first creditor in attachment proceeding obtained an order for sale of personal property, and a second creditor in another proceeding in which debtor and first creditor were parties obtained an order to share in proceeds of sale, the court had jurisdiction in second proceeding to entertain a motion to vacate the sale, since proceedings were interrelated and parties were before the court. Joy Mfg. Co. v. R.S. McClintock Diamond Drilling Co., 77 Idaho 309, 291 P.2d 874 (1955).

Purchase of real estate valued at $11,000 for $426.16 was grossly inadequate and authorized the setting aside of sheriff’s sale and certificate of redemption. Gaskill v. Neal, 77 Idaho 428, 293 P.2d 957 (1956).

An execution sale of machines capable of manual delivery should not have been set aside on the ground that the machines were not within view when sold, where the buyer who had made a complete inspection of the machines prior to the sale did not object to the irregularity. Garren v. Butigan, 96 Idaho 906, 539 P.2d 259 (1975).

Subsequent Grantees.

A subsequent grantee of a judgment debtor can not complain on account of the invalidity of an execution sale on the ground that a municipal corporation lacked authority to purchase property at an execution sale in the name of a trustee, if the sale is otherwise valid. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

Am. Jur. 2d.

C.J.S.

Subsequent Grantee.

A subsequent grantee of a judgment debtor can not complain on account of the invalidity of an execution sale on the ground that a municipal corporation lacked authority to purchase property at an execution sale in the name of a trustee, if the sale is otherwise valid. Evans v. Power County, 50 Idaho 690, 1 P.2d 614 (1931).

Am. Jur. 2d.

C.J.S.

Construction with Other Laws.

Since this section imposes a duty to “deliver” property, but such language is absent in section 11-203, the plain meaning of the latter section is that the sheriff is required only to “release” the property, not that he is affirmatively required to deliver it to a third party claimant upon release. Peasley Transfer & Storage Co. v. Smith, 132 Idaho 732, 979 P.2d 605 (1999).

Liability for Delivery.

Where a sheriff, who had a duty to safely keep or guard five machines taken into possession pursuant to a writ of execution, did not deliver the machines immediately after an execution sale but left them in an unlocked showroom, the sheriff was liable to the buyer for the machines missing from the showroom. Garren v. Butigan, 96 Idaho 906, 539 P.2d 259 (1975).

Am. Jur. 2d.

C.J.S.

Cross References.

Indexing of sheriff’s deeds by county recorder,§ 31-2405.

Recording and indexing of certificates of sale,§ 31-2406.

Passage of Title.

Title to real property passes to a foreclosure sale purchaser, under§§ 6-107 and 11-310 and this section, when the purchaser receives the certificate of sale. Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012).

Possession of Property.

Judgment debtors’ argument that they were entitled to retain possession of the property subject to judicial foreclosure was rejected where nothing in the redemption statutes mandated that a potential redeeming party was to maintain possession during the redemption period, and, in fact,§ 11-406 and this section indicate the opposite is true. PHH Mortg. v. Nickerson, 164 Idaho 33, 423 P.3d 454 (2018).

Am. Jur. 2d.

C.J.S.

Cross References.

Injury to property by tenant in possession, after sale and before possession delivered, damages for,§ 6-408.

Injury to real property during foreclosure of mortgage or after sale on execution before a conveyance, injunction against,§ 6-407.

Sheriff’s fee for executing certificate of sale,§ 31-3203.

Leasehold.

Execution sale of leasehold interest in land or chattel real is governed by this section. It must be sold as real estate and, if it has more than two (2) years to run, the sale is subject to redemption. Intermountain Realty Co. v. Allen, 60 Idaho 228, 90 P.2d 704 (1939).

Prorating Rent.

The purchaser at execution sale on foreclosure is not entitled to all the crop or rental for the entire year in which the sale is made or the certificate is issued; he must prorate with the judgment debtor for the portion of the year expired prior to the sale. Ferguson v. Sullivan, 58 Idaho 428, 74 P.2d 183 (1937).

Purchase by Creditor.

The doctrine of caveat emptor is, a fortiori, applicable to a judgment creditor who purchases at his own execution sale and merely credits the price bid against his judgment. Boller v. Sun Valley Shamrock Resources, Inc., 119 Idaho 1060, 812 P.2d 1221 (Ct. App. 1993).

Redemption.

Federal court, upon foreclosure of mechanics lien, may decree sale as an entirety and without redemption, notwithstanding state statute allowing redemption. Continental & Com. Trust & Sav. Bank v. Corey Bros. Constr. Co., 208 F. 976 (9th Cir. 1913).

When foreclosure sale is made at which the amount of the debt is bid, sheriff’s certificate of sale passes title and the judgment is paid. There no longer exists any indebtedness from mortgagor to mortgagee. The only right remaining in the mortgagor is to divest the purchaser of his title by redemption within one year. Northwestern & Pac. Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4 (1935).

The complaint sufficiently stated a cause of action where former realty owners against whom mortgage had been foreclosed alleged an agreement had been entered into with junior lienholder that latter was to redeem property on last day of redemption period and that former owners were then to secure a purchaser for such realty and personal property located thereon, they to be compensated for such services by the grant of certain parcels of land, but buyer and junior lienholder in violation of such oral agreement consummated the sale depriving former owners of agreed compensation. Harvey v. Brown, 80 Idaho 379, 330 P.2d 982 (1958).

Title Acquired by Purchaser.

Proceedings for enforcement of prior tax lien were without effect after state received sheriff’s deed on foreclosure, whether or not the property belonged to the state before expiration of period of redemption and was subject to be listed and assessed under§ 63-107. State ex rel. Nash v. Reed, 47 Idaho 131, 272 P. 1008 (1928).

Purchaser at foreclosure sale acquires title to property subject to prior liens and right of redemption. Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929).

After sheriff has delivered certificate to purchaser at foreclosure sale, latter is substituted to and acquires all right, title, claim, or interest of judgment debtor, subject to right of redemption within statutory period. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1938).

Trust Deeds.

Title to real property passes to a foreclosure sale purchaser, under§§ 6-107 and 11-309 and this section, when the purchaser receives the certificate of sale. Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012). Trust Deeds.

The statutory right of redemption, following an execution sale of real property, given by this section and§§ 11-401, 11-402 and following judicial foreclosure of a mortgage, given by§ 6-101, is expressly denied to the grantor in a trust deed by§ 45-1508 where the sale is made by the trustee by notice and sale, or advertisement and sale, pursuant to the power contained in the deed and the applicable portions of said chapter 15 of title 45. The legislative withdrawal of this legislatively given right of redemption is not a denial of due process, where the withdrawal is affected only in cases where the property owner by his contract so agrees. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Writ of Assistance.

Writ of assistance is the appropriate remedy to place in possession the purchaser at a foreclosure sale and may issue against all persons bound by the decree. Harding v. Harker, 17 Idaho 341, 105 P. 788 (1909); Williams v. Sherman, 35 Idaho 169, 205 P. 259 (1922); Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

Am. Jur. 2d.

C.J.S.

Accrual of Right.

Proceeding to revive a judgment does not accrue, so as to set the statute of limitations in motion, until the period of redemption has expired and the sheriff’s deed has been executed. Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095 (1893).

Where defect of title through which purchaser fails to obtain possession consists in cancellation of public land entry under which land was held when it was sold, cause of action for revival of judgment does not arise so as to set the statute of limitations in motion until cancellation of the entry. Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095 (1893).

Equitable Relief.

Judgment Creditor Bidding in Property.

Suit may be brought for equitable relief independent of this section, and applicable statute of limitations is§ 5-224. Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933). Judgment Creditor Bidding in Property.

Where a judgment creditor bids in property of the judgment debtor at an execution sale, and credits upon the judgment the amount bid, no valuable consideration passes for such purchase, since it amounts to nothing more than a cancellation pro tanto of a preexisting indebtedness, and such purchase conveys only the legal title to the judgment creditor, subject to existing equities. Mountain Home Lumber Co. v. Swartwout, 30 Idaho 559, 166 P. 271 (1917).

Nature of Action.

An action for revivor, under this statute, is not regarded as a new action but a proceeding in aid of an execution on an old judgment. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

No Revival of Judgment.

There is nothing in this section which permits the revival of a judgment for failure of title. Boller v. Sun Valley Shamrock Resources, Inc., 119 Idaho 1060, 812 P.2d 1221 (Ct. App. 1993).

Order of Revivor.

W, having made entry and final proof on certain lands under federal desert land law, mortgaged same; upon foreclosure of mortgage, assignee of mortgage became purchaser; prior to foreclosure sale, R had instituted proceedings to contest W’s entry; which contest resulted in cancellation of W’s entry, the court held that the assignee was entitled to revival of the judgment entered on the foreclosure of the mortgage. Cantwell v. McPherson, 3 Idaho 321, 29 P. 102 (1892).

Where an order of revivor contains no decretal language against a certain judgment debtor, the only inference which can be drawn from such omission is that of payment and consequent presumption of discharge and release. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Petition for Revival.

Petition to revive judgment may be filed where there is an absolute failure of title to land sold at sheriff’s sale by reason of cancellation of the entry under which the land was sold, no patent therefor having been issued. Cantwell v. McPherson, 3 Idaho 321, 29 P. 102 (1892).

Waiver.

Failure to file affidavit and motion for revival of judgment is waived if not seasonably objected to. Evans v. Humphrey, 51 Idaho 268, 5 P.2d 545 (1931).

Whole Judgment Revived.

The whole judgment must be revived in entirety against all of the several defendants. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Cited Lewiston Nat’l Bank v. Tefft, 6 Idaho 104, 53 P. 271 (1898); Diamond Bank v. Van Meter, 18 Idaho 243, 108 P. 1042 (1910); Brown v. Hawkins, 66 Idaho 351, 158 P.2d 840 (1945). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 11-313. Contribution between joint debtors.

When upon an execution against several persons more than a due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal. In such case the person so paying or contributing is entitled to the benefit of the judgment to enforce contribution or repayment, if, within ten (10) days after his payment, he file with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon a filing of such notice the clerk must make an entry thereof in the margin of the docket.

History.

C.C.P. 1881, § 459; R.S., R.C., & C.L., § 4499; C.S., § 6940; I.C.A.,§ 8-313.

Application.

Provisions of this statute are cumulative, but not exclusive, to compel contribution. Dunn v. Stufflebeam, 17 Idaho 559, 106 P. 1129 (1910).

This section has no application to action between cosureties for contribution. Shattuck v. Ellis, 49 Idaho 330, 288 P. 162 (1930).

Lien of Revived Judgment.

The unpaid portion of the original judgment not being a lien against the land sold under it during a period of redemption, revival of such portion of the deficiency as had in the interim been improvidently satisfied was not a lien. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Procedure.

In proceedings between joint judgment debtors, where one seeks to compel the other to pay proportionate share of the judgment and applies to the court for an order directing an execution to issue, the court may enter such an order but it has no authority to enter a judgment against judgment debtor for the proportionate part of the judgment he should pay. Dunn v. Stufflebeam, 17 Idaho 559, 106 P. 1129 (1910).

Cross References.

Foreclosure sales subject to redemption,§ 6-101.

Injury pending conveyance after sale, damages,§ 6-408.

Compiler’s Notes.

The bracketed insertion in the introductory paragraph was added by the compiler to conform to the statutory citation style.

Judgment Creditor.

A judgment creditor does not have a “right” of redemption under§ 11-402, since this section grants that right only to the judgment debtor and any junior lien creditor. Phillips v. Blazier-Henry, 154 Idaho 724, 302 P.3d 349 (2013).

Junior Mortgagee.

By the very definition of redemptioner, only a junior mortgagee having a mortgage subsequent to that lien for which the property was foreclosed can redeem. Eastern Idaho Prod. Credit Ass’n v. Placerton, Inc., 100 Idaho 863, 606 P.2d 967 (1980).

Possession of Lien or Mortgage Required.

Under this section, the right to redeem is contingent upon possession of a lien or mortgage; it cannot exist without the mortgage and cannot be transferred independently therefrom. Hieb v. Mitchell, 117 Idaho 1075, 793 P.2d 1247 (1990).

Quitclaim Deed Insufficient.

A quitclaim deed which the FHA executed to defendants did not transfer the redemption rights because the quitclaim deed did not assign the underlying note and mortgage. Hieb v. Mitchell, 117 Idaho 1075, 793 P.2d 1247 (1990).

Redemption Requirements.

The possession of a judgment lien does not excuse a creditor from complying with the mandates of the redemption statutes. Jenkins v. Barsalou, 145 Idaho 202, 177 P.3d 949 (2008).

Redemptioner.

Where the partition order identified the award as a “down payment” and “balance,” and the proceedings below consistently referred to the judgment creditor’s interest as “a” lien or “the” money judgment, the judgment creditor had only one lien, the one which she executed, and she had no liens separate from or subsequent to the liens she executed upon; therefore, she was not a redemptioner under subsection (2) of this section. Suchan v. Suchan, 113 Idaho 102, 741 P.2d 1289 (1986).

Section 11-403, which delineates the requirements to effect a subsequent redemption, reinforces this section’s definition that a redemptioner is one having a lien or mortgage. Hieb v. Mitchell, 117 Idaho 1075, 793 P.2d 1247 (1990).

Rights of Owner.

Where property is sold under execution, the owner still retains conditional interest subject to levy and sale under subsequent executions. Evans v. Humphrey, 51 Idaho 268, 5 P.2d 545 (1931).

Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right and each would receive a deficiency to the extent his or her debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

Stockholder’s Right of Redemption.

In order to establish a stockholder’s right to redeem corporate property from an execution sale, an individual stockholder must show that he first made a bona fide effort to have a redemption made by the directors of the corporation and, failing that, made a like effort with the stockholders as a body, or if he seeks to excuse his own default in that direction, he must show that such efforts to induce a redemption by the directors or stockholders would be an idle ceremony. Wunderlich v. Coeur d’Alene Vulcan Mining Co., 40 Idaho 173, 232 P. 588 (1924). A stockholder attempting a redemption of corporate property without having taken the substantial course prescribed by law is not entitled to attorney’s fees or other expenses incident to an attempted redemption from the execution sale against the corporation. Wunderlich v. Coeur d’Alene Vulcan Mining Co., 40 Idaho 173, 232 P. 588 (1924).

Tender of Redemption.

Purchaser at foreclosure sale refusing to accept lawful tender money does so at his own risk, and his refusal will not prevent the legal effect of the tender to defeat the sale and to extinguish the purchaser’s interest in the mortgage lien. Kelley v. Clark, 23 Idaho 1, 129 P. 921 (1912).

Even if redemption by assignees of foreclosure purchaser was found to be defective, title would vest in purchaser after expiration of redemption period. Title would not vest in successors to mortgagors who failed to follow statutory procedure in making attempted redemption. Frisby v. Clapier, 122 Idaho 364, 834 P.2d 881 (Ct. App. 1992).

Trust Deeds.

The statutory right of redemption, following an execution sale of real property, given by this section and§§ 11-310, 11-402 and following judicial foreclosure of a mortgage, given by§ 6-101, is expressly denied to the grantor in a trust deed by§ 45-1508 where the sale is made by the trustee by notice and sale, or advertisement and sale, pursuant to the power contained in the deed and the applicable portions of said chapter 15 of title 45. The legislative withdrawal of this legislatively given right of redemption is not a denial of due process, where the withdrawal is effected only in cases where the property owner by his contract so agrees. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Am. Jur. 2d.

C.J.S.

Amount for Redemption.

In computing amount necessary to redeem land from foreclosure, payments by purchaser at foreclosure sale of prior mortgages do not constitute “prior lien” within meaning of this section. Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929).

Attorney’s Fees.

Where property was sold under a foreclosure to mortgagees under judgment of foreclosure from which the mortgagors appealed but gave no undertaking to stay execution, and the foreclosure judgment was modified on appeal by eliminating the attorney’s fee, the mortgagors were protected from loss upon redemption by statute providing that the mortgagors need not include the attorney’s fee in the amount necessary to redeem, unless the provisions of the statute, as amended in 1935, were complied with. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

This section does not apply to attorney’s fees allowed in amended order to show cause why the redemption period should not be extended, which fixed a new sum to be paid in redemption and which fees were only for fees incurred by the plaintiff-mortgagee subsequent to plaintiff’s motion for conveyance. Gem Valley Ranches, Inc. v. Small, 92 Idaho 232, 440 P.2d 352 (1968).

Purchaser of foreclosed property was not entitled to receive attorney’s fees because the purchaser was not a judgment creditor, and a prior contrary determination by a special master was merely persuasive and not binding. Riley v. W. R. Holdings, LLC, 143 Idaho 116, 138 P.3d 316 (2006).

Certificate of Redemption.

Upon redemption by debtor, person to whom payment is made must execute and deliver to him certificate of redemption which should be recorded. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

Construction in General.

Amendment of this section which extends period of redemption from six months to one year does not apply to mortgages executed prior to its passage, but as to such mortgages only six months is allowed for redemption. Wilder v. Campbell, 4 Idaho 695, 43 P. 677 (1896).

Where property is sold under execution, the owner still retains conditional interest subject to levy and sale under subsequent executions. Evans v. Humphrey, 51 Idaho 268, 5 P.2d 545 (1931). Where foreclosure sale is made at which the amount of the debt is bid, sheriff’s certificate of sale passes title and the judgment is paid and there no longer exists any indebtedness from mortgagor to mortgagee; the only right remaining in the mortgagor is to divest the purchaser of his title by redemption within one year. Northwestern & Pac. Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4 (1935); Sherwood v. Daly, 58 Idaho 744, 78 P.2d 357 (1938).

The holder of a sheriff’s certificate of sale is entitled to either the possession of property or to demand rent from the tenant or vendee, as the case may be, in possession, from the date of the sale. In the instant case, appellant was let into possession of the property and was entitled to remain in possession provided he made the payments of the purchase price in accordance with the terms of his contract. Sherwood v. Daly, 58 Idaho 744, 78 P.2d 357 (1938).

Absent some valid claim to equitable relief from the requirements of the redemption statute, a party purporting to redeem who does not comply with the statute loses the right to redeem and the title vests absolutely in the purchaser. Williams v. McCallum, 128 Idaho 637, 917 P.2d 794 (1996).

Effect of Redemption.

Redemption of mortgaged premises and recording of certificate thereof nullifies effect of sale and leaves legal title to land same as if foreclosure had not been had. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

A redemption when made is not from the mortgage lien but from the execution sale, and a deed subsequently given by the sheriff passes no additional title, but rather evidences that the purchaser’s title has not been divested by redemption. Northwestern & Pac. Hypotheekbank v. Nord, 56 Idaho 86, 50 P.2d 4 (1935).

Foreclosures Under Federal Law.

This section does not apply to redemption from a foreclosure under the National Housing Act, 12 USCS § 1701 et seq. Clark Inv. Co. v. United States, 364 F.2d 7 (9th Cir. 1966).

Judgment Creditor.

A judgment creditor does not have a “right” of redemption under this section, since§ 11-401 grants that right only to the judgment debtor and any junior lien creditor. Phillips v. Blazier-Henry, 154 Idaho 724, 302 P.3d 349 (2013).

Lien.

One acquiring title before the expiration of the period of redemption from the judgment debtor, by making a redemption from the original sale, took the land freed from the lien of the original judgment under which it was sold. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Redemption Taxes.

Where a purchaser at foreclosure sale has paid taxes on the property after the sale and issuance of sheriff’s certificate, a mortgagor, who sought to redeem, was required to include the taxes so paid in the amount necessary to redeem. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

Simultaneous Foreclosure.

Where assignee of first priority lien failed to pay the additional taxes paid by or on behalf of foreclosure sale purchaser of property within the one year time limit provided, his redemption of property was invalid. Williams v. McCallum, 128 Idaho 637, 917 P.2d 794 (1996). Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right, and each would receive a deficiency to the extent his debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

Time for Redemption.

Statutory right to redeem must be exercised within period provided by statute; otherwise, right to redeem is lost and absolute title vests in purchaser. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

When the statutory right of redemption has been lost, the court may, upon proper bill showing fraud, mistake, or other circumstances appealing to its equitable discretion, relieve debtor whose property has been sold through failure to redeem in statutory time. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

Although the creditor argued that no appellate court had construed the language of§ 11-402, governing redemptions or ruled on whether the sale of the property in separate parcels pursuant to§ 11-304 necessarily dictated that redemption had to be in like manner for separate parcels, thus invoking a six-month redemption period; the creditor’s argument appeared to be premised upon an earlier description of the property as a single tract but, because the property was divided into tracts less than 20 acres, the 6-month redemption period, not the 1-year period for tracts larger than 20 acres, applied. Nez Perce Tribe v. Little Hope Invs., 140 Idaho 219, 91 P.3d 1123 (2004).

Trust Deeds.

The statutory right of redemption following an execution sale of real property, given by§§ 11-310, 11-401, and this section and following judicial foreclosure of a mortgage, given by§ 6-101, is expressly denied to the grantor in a trust deed by§ 45-1508 where the sale is made by the trustee by notice and sale, or advertisement and sale, pursuant to the power contained in the deed and the applicable portions of said chapter 15 of title 45. The legislative withdrawal of this legislatively given right of redemption is not a denial of due process, where the withdrawal is effected only in cases where the property owner by his contract so agrees. Roos v. Belcher, 79 Idaho 473, 321 P.2d 210 (1958).

Unsatisfied Judgment Not a Lien.

If any part of the original several judgment remains unsatisfied after the first sale of land, the unsatisfied portion does not become a lien against the judgment debtor’s interest in the premises during the period of redemption. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932).

Cited Kelley v. Clark, 23 Idaho 1, 129 P. 921 (1912); Benting v. Spanbauer, 58 Idaho 44, 69 P.2d 983 (1937); Panhandle Growers Union v. Scott, 58 Idaho 70, 70 P.2d 372 (1937); Acker v. Mader, 94 Idaho 94, 481 P.2d 605 (1971); Ellis v. Butterfield, 98 Idaho 644, 570 P.2d 1334 (1977); PHH Mortg. v. Nickerson, 164 Idaho 33, 423 P.3d 454 (2018). RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 11-403. Subsequent redemptions.

If property be so redeemed by a redemptioner, another redemptioner may, within sixty (60) days after the last redemption and within one (1) year after the sale, if the real property sold consisted of a tract of land of more than twenty (20) acres, and within six (6) months after the sale if the real property sold consisted of a tract of land of twenty (20) acres or less, again redeem it from the last redemptioner on paying the sum paid on such last redemption with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code, in addition from the date of the last redemption and the amount of any assessment or taxes which the last redemptioner may have paid thereon, after the redemption by him with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code, on such amount, and in addition the amount of any liens held by said last redemptioner prior to his own, with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code; but the judgment under which the property was sold need not be so paid as a lien.

The property may be again, and as often as a redemptioner is so disposed, redeemed from any previous redemptioner, within sixty (60) days after the last redemption and within one (1) year after the sale, if the real property sold consisted of a tract of land of more than twenty (20) acres, and within six (6) months after the sale if the real property sold consisted of a tract of land twenty (20) acres or less, on paying the sum paid on the last previous redemption with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code, in addition, and the amount of any assessments or taxes which the last previous redemptioner paid after the redemption by him, with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code, and the amount of any liens, other than the judgment under which the property was sold, held by the last redemptioner previous to his own, with interest thereon at the rate allowed in section 28-22-104(1), Idaho Code.

Written notice of redemption must be given to the sheriff and a duplicate filed for record with the recorder of the county; and, if any taxes or assessments are paid by the redemptioner, or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the recorder, and if such notice be not filed, the property may be redeemed without paying such tax, assessment or lien.

If no redemption be made within one (1) year after the sale, if the real property sold consisted of a tract of land of more than twenty (20) acres, and within six (6) months after the sale if the real property sold consisted of a tract of land of twenty (20) acres or less, the purchaser or his assignee is entitled to a conveyance, or, if so redeemed, whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereon given, the time for redemption by a redemptioner has expired, and the last redemptioner or his assignee is entitled to a sheriff’s deed at the expiration of one (1) year after the sale, if the real property sold consisted of a tract of land of more than twenty (20) acres, and within six (6) months after the sale if the real property sold consisted of a tract of land of twenty (20) acres or less; but in all cases the judgment debtor shall have the entire period of one (1) year from the date of the sale to redeem the property if the real property sold consisted of a tract of land of more than twenty (20) acres and shall have the entire period of six (6) months from the date of sale to redeem the property if the real property sold consisted of a tract of land of twenty (20) acres or less. If the judgment debtor redeem he must make the same payments as are required to effect a redemption by a redemptioner.

If a debtor redeem, the effect of the sale is terminated and he is restored to his estate.

Upon a redemption by the debtor, the person to whom the payment is made must execute and deliver to him a certificate of redemption, acknowledged and proved before an officer authorized to take acknowledgments of conveyances of real property.

Such certificate must be filed and recorded in the office of the recorder of the county in which the property is situated, and the recorder must note the record thereof in the margin of the record of the certificate of sale.

History.

C.C.P. 1881, § 453; R.S., § 4493; am. 1895, p. 34, § 1; reen. 1899, p. 241, § 1; reen. R.C. & C.L., § 4493; C.S., § 6934; I.C.A.,§ 8-403; am. 1935, ch. 7, § 2, p. 19; am. 1967, ch. 293, § 2, p. 825; am. 1967 (1st E.S.), ch. 2, § 1, p. 9; am. 1970, ch. 100, § 2, p. 250; am. 1982, ch. 322, § 2, p. 795.

Compiler’s Notes.

Section 3 of S.L. 1967, ch. 293, read: “Nothing provided for in this act shall affect the redemption period of any mortgage executed and recorded on or before the effective date of this act.”

Section 2 of S.L. 1967 (E.S.), ch. 2 read: “Nothing herein contained shall affect the redemption period of any mortgage executed and recorded on or before the effective date of this act.”

Effective Dates.

Section 3 of S.L. 1967 (E.S.), ch. 2 declared an emergency. Approved July 1, 1967.

Section 3 of S.L. 1982, ch. 322 declared an emergency. Approved April 1, 1982.

Application.

Construction for Foreclosure Decree.

Under this section, the sheriff, upon execution of a sheriff’s deed, is dealing with the rights and title of the judgment debtor, and this section only authorizes him to execute the deed in favor of the holder of the certificate of sale or a redemptioner; execution of the deed to any other person has no effect. Petty v. Petty, 70 Idaho 473, 223 P.2d 158 (1950). Construction for Foreclosure Decree.

A mortgage foreclosure decree, providing that the purchaser of mortgaged premises at the foreclosure sale should be let into possession thereof and should have possession on production of sheriff’s deed, conformed to the statute relating to redemption of realty from mortgage foreclosure sale, and can not reasonably be construed to mean that the mortgagee or any other purchaser at such sale was to have possession of the mortgaged property prior to one year from the date of sale or before the issuance of the sheriff’s deed. Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406 (1940).

Forfeiture of Growing Crops.

Nothing in this section indicates that being restored to one’s estate upon redemption requires forfeiture of any growing crops by the person who grew them. First State Bank of Eldorado v. Rowe, 142 Idaho 608, 130 P.3d 1146 (2006).

Redemption Period.

When realty is sold to satisfy a judgment, and the sheriff executes and delivers a certificate of sale, title passes from the judgment debtor to the judgment creditor, only the right of redemption remains, and it must be redeemed within the statutory period. Petty v. Petty, 70 Idaho 473, 223 P.2d 158 (1950).

After expiration of the period of redemption the sheriff’s deed merely recites that no redemption has been made, that the time for redemption has expired, and the certificate of sale is incorporated in the deed. Petty v. Petty, 70 Idaho 473, 223 P.2d 158 (1950).

Redemptioner.

This section, which delineates the requirements to effect a subsequent redemption, reinforces§ 11-401’s definition that a redemptioner is one having a lien or mortgage. Hieb v. Mitchell, 117 Idaho 1075, 793 P.2d 1247 (1990).

Debtors were not required to comply with the mandates of this section in attempting to redeem their property because they were not redemptioners. Riley v. W. R. Holdings, LLC, 143 Idaho 116, 138 P.3d 316 (2006).

Sheriff’s Deed.

Sheriff’s deed following certificate of sale, not in consequence of any fraud, but solely because of failure to redeem within statutory time, is valid irrespective of purchaser’s alleged misconduct to debtor’s prejudice. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

Where the recitals in the sheriff’s deed designated A as “guardian ad litem of B” and B was named as purchaser in the sheriff’s bill of sale, it was held that A took title in her representative capacity and the words “guardian ad litem of B” were not merely “descriptive personae.” Petty v. Petty, 70 Idaho 473, 223 P.2d 158 (1950).

Simultaneous Foreclosure.

The sheriff is statutorily compelled to issue a sheriff’s deed once the redemption period has expired, and the issuance of the deed is a mere ministerial act. County of Kootenai v. Western Cas. & Sur. Co., 113 Idaho 908, 750 P.2d 87 (1988). Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right, and each would receive a deficiency to the extent his or her debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

C.J.S.

§ 11-404. Payment of redemption money.

The payments mentioned in the last two (2) sections may be made to the purchaser or redemptioner, or for him, to the officer who made the sale, or to his successor in office. When the judgment under which the sale has been made is payable in a specified kind of money or currency, payments must be made in the same kind of money or currency, and a tender of the money is equivalent to payment.

History.

C.C.P. 1881, § 454; R.S.& R.C., § 4494; am. 1911, ch. 88, § 1, p. 334; reen. C.L., § 4494; C.S., § 6935; I.C.A.,§ 8-404.

Amount of Payment.

In computing amount necessary to redeem land from foreclosure, payments by purchaser at foreclosure sale of prior mortgages do not constitute “prior lien,” within meaning of§ 11-402. Keel v. Vinyard, 48 Idaho 49, 279 P. 420 (1929).

Record Owner of Certificate.

It is not the duty of redemptioner to search over the county in an effort to unearth a possible hidden purchaser from the record owner of the certificate of sale, but redemptioner had the right to presume, there being nothing to indicate to the contrary, that the record owner of the certificate continued to own it, and that when it paid him, a redemption of the property was effected. Panhandle Growers Union v. Scott, 58 Idaho 70, 70 P.2d 372 (1937).

Refusal to Accept Tender.

If, within the proper time, mortgagor or his assigns make a bona fide tender of the amount necessary to redeem after foreclosure, purchaser, if he rejects, acts at his peril, since the tender is not required to be kept alive, being equivalent to payment, which discharges the lien; still, if the rejection is reconsidered within a few hours, equity would suggest that purchaser be allowed to accept the tender. Kelley v. Clark, 23 Idaho 1, 129 P. 921 (1912).

Tender of Redemption.

Where defendants tendered a “Fractional Reserve Note” which was ambiguous on its face and had no apparent value, no lawful redemption or tender of redemption was made by defendants. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Cited

Where creditor failed to tender redemption money to the sheriff or to the other creditors, the creditor failed to meet the statutory requirement of tender. Creditor’s deposit of money to the clerk of court did not excuse this requirement, because at the time there was no action taking place and the creditor did not have leave of the court to deposit the money. Jenkins v. Barsalou, 145 Idaho 202, 177 P.3d 949 (2008). Cited Acker v. Mader, 94 Idaho 94, 481 P.2d 605 (1971).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Injunction to prevent injury to real property pending foreclosure,§ 6-407.

Waste, actions for,§ 6-201 et seq.

Possession of Property.

Judgment debtors’ argument that they were entitled to retain possession of the property subject to judicial foreclosure was rejected where nothing in the redemption statutes mandated that a potential redeeming party was to maintain possession during the redemption period, and, in fact,§ 11-309 and this section indicate the opposite is true. PHH Mortg. v. Nickerson, 164 Idaho 33, 423 P.3d 454 (2018).

Prorating Rents.

The purchaser at execution sale on foreclosure is not entitled to all the crop or rental for the entire year in which the sale is made or the certificate is issued; he must prorate with the judgment debtor for the portion of the year expired prior to the sale. Ferguson v. Sullivan, 58 Idaho 428, 74 P.2d 183 (1937).

Purchaser’s Rights.

Cited

Purchaser of real estate sold under execution does not acquire title, and is not entitled to possession, until time for redemption has expired. Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095 (1893). Cited Northwestern & Pac. Hypotheekbank v. Dalton, 44 Idaho 120, 256 P. 93 (1927).

Interest Retained by Owner.

Where property is sold under execution, owner still retains conditional interest subject to levy and sale under subsequent executions. Evans v. Humphrey, 51 Idaho 268, 5 P.2d 545 (1931).

Mortgagee Purchasing Property.

Mortgagor’s Rights.

Where mortgagee purchases property, sold by order of bankruptcy court, for full amount due thereon, he is entitled only to rents accruing between date of sale and date of receiving deed and taking possession. Little v. Wells, 29 F.2d 1003 (D. Idaho 1928). Mortgagor’s Rights.

During the period of redemption, the mortgagor must pay the purchaser as the owner of the land for its use and occupation; after the sale the title is in the purchaser; redemption merely revives the mortgagor’s title and the statute gives him his due by providing that the rents paid apply on the redemption; the mortgagor is a “tenant in possession” within the meaning of this section. Caldwell v. Thiessen, 60 Idaho 515, 92 P.2d 1047 (1939).

The only right remaining in the mortgagor after foreclosure sale is the right to redeem. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

Except as provided in this section, the mortgagor has no further rights in the mortgaged property after foreclosure sale until he has redeemed the property or tendered the amount required for redemption. Gem Valley Ranches, Inc. v. Small, 92 Idaho 232, 440 P.2d 352 (1968).

Offset.

In the absence of a demand in writing by assignee of first priority lien for written and verified statement of rents and profits, which would have extended the period of redemption for five days after a sworn statement from foreclosure sale purchaser of such rents and profits, there was no basis to consider an offset of deficiency in redemption money paid by assignee. Williams v. McCallum, 128 Idaho 637, 917 P.2d 794 (1996).

Purchaser’s Rights in General.

Purchaser is entitled to receive rents of property sold or the value of the use and occupation thereof from time of sale until a redemption of the property. Northwestern & Pac. Hypotheekbank v. Dalton, 44 Idaho 120, 256 P. 93 (1927).

If no redemption is made, the value of the use and occupation must follow the holder of the legal title, namely, the purchaser. Caldwell v. Thiessen, 60 Idaho 515, 92 P.2d 1047 (1939).

A purchaser of property at a foreclosure sale was entitled to demand and receive the rents from the mortgagor-tenants, and failure of the tenants to pay the rent entitled the purchasers to institute an action to recover the rents due or to remove the tenants from the property. Acker v. Mader, 94 Idaho 94, 481 P.2d 605 (1971).

Am. Jur. 2d.

C.J.S.

Cross References.

Attachment writ returned unsatisfied, procedure,§ 8-530.

Receiver, appointment in and of execution,§ 8-601 et seq.

Compiler’s Notes.

The bracketed word “does” was inserted by the compiler.

Am. Jur. 2d.

C.J.S.

Cross References.

Civil arrest,§ 8-101 et seq.

Am. Jur. 2d.

C.J.S.

Cross References.

Garnishment proceedings,§ 8-507 et seq.

Notice of Assignment.

Timely notice of assignment must be given to judgment debtor to hold him liable on judgment. Houtz v. Daniels, 36 Idaho 544, 211 P. 1088 (1922).

Party having paid judgment, without notice of assignment, and obtained sheriff’s receipt therefor, judgment is satisfied. Houtz v. Daniels, 36 Idaho 544, 211 P. 1088 (1922).

Notice of assignment need not be in any particular form, but is sufficient if it advises judgment debtor that person who recovered judgment is no longer owner of it or entitled to collect it. Houtz v. Daniels, 36 Idaho 544, 211 P. 1088 (1922).

After notice to debtor of bona fide assignment of judgment, rights of assignee will be protected from any and all acts of original parties. Houtz v. Daniels, 36 Idaho 544, 211 P. 1088 (1922).

Where all that appeared was that assignment was filed with county recorder, such filing can not operate as constructive notice in absence of statute providing that it shall have that effect. Houtz v. Daniels, 36 Idaho 544, 211 P. 1088 (1922).

Cross References.

Trial by masters, Idaho R. Civ. P. 53(d)(1).

Discovery.

Idaho Code title 11 provides an alternate, but not exclusive, avenue by which a judgment creditor may conduct discovery after a judgment has been entered. The civil rules of discovery, including a motion to compel, are also available. Wechsler v. Wechsler, 162 Idaho 900, 407 P.3d 214 (2017).

Am. Jur. 2d.

C.J.S.

Cross References.

Subpoenas, Idaho Civil Procedure Rules 45(a) through 45(i).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

Garnishment proceedings,§ 8-507.

Action Authorized by Court.

Where it is claimed a person has money or property of a judgment debtor, or is indebted to him, and such person denies the debt, or possession of money or property of the judgment debtor, the court may only authorize, by order made to that effect, the judgment creditor to institute an action against any such person for the recovery of the debt. Mewes v. Jacobson, 17 Idaho 427, 220 P.2d 681 (1950).

Creditor’s Bill.

The provisions and procedures contemplated by this section are applicable to a cause of action belonging to judgment debtors against their insurance carriers based on wrongful refusal by carriers to settle claims against judgment debtors within policy limits, which cause arises from the contractual obligation of the carriers and is a thing in action arising out of violation of an obligation and, thus, assignable under§§ 5-302 and 55-402. Whitehead v. Van Leuven, 347 F. Supp. 505 (D. Idaho 1972). Creditor’s Bill.

Judgment creditor may maintain a creditor’s bill to reach property in hands of a third person where such third person claims an interest in the property under a bill of sale from judgment debtor, so that supplementary proceedings under this section would be ineffectual. Gordon v. Lemp, 7 Idaho 677, 65 P. 444 (1901).

Jurisdiction.

Where an indebtedness is denied or disputed, a district court is without jurisdiction to render or enter judgment in proceeding supplementary to execution. Mewes v. Jacobson, 70 Idaho 427, 220 P.2d 681 (1950).

Proof of Interest.

In an action to foreclose mortgage, where only evidence of defendant’s alleged interest in resort property was the self-serving testimony in defendant’s deposition, and where defendant made no effort to appear and assert his claim, the trial court’s findings that defendant’s judgment creditors had proved that defendant owned an interest in the disputed property and that plaintiff had agreed to pay him for such interest were not supported by substantial evidence. Russ Ballard & Family Achievement Inst. v. Lava Hot Springs Resort, Inc., 97 Idaho 572, 548 P.2d 72 (1976).

Supplemental Proceedings.

In proceedings supplemental to execution by judgment creditors in a justice of peace court wherein judgment creditors summoned in third party relative to certain property allegedly belonging to judgment debtor and in the possession of the third party, and the third party claimed the property belonged to it, the justice did not abuse his discretion by continuing the hearing and ordering the third party to bring in books and records; hence district court had no right to issue writ of prohibition restraining further action by justice. Hubbard v. Morse, 76 Idaho 494, 285 P.2d 483 (1955).

Am. Jur. 2d.

C.J.S.

Procedure.

Complaint on a judgment brought against a person alleged to have money of judgment debtor in her possession, under the authority of the order provided for in this section, which substantially shows that the judgment was rendered by a court of competent jurisdiction, its date, amount, and the parties thereto, and then alleges facts showing that proper proceedings under the provisions of this article providing for proceedings supplementary to execution had been taken, that the order provided for in this section had been duly obtained, and further alleges that defendant has money belonging to judgment creditor subject to execution in her possession, is sufficient when tested by a general demurrer. Boise Butcher Co. v. Anixdale, 26 Idaho 483, 144 P. 337 (1914).

Proceedings Against Garnishee.

Where garnishee claims an interest in property adverse to judgment debtor, court may authorize judgment creditor to institute an action for the recovery of such interest, but can not entertain a hearing on the issue involved, proceed to determine same and appoint a receiver to take charge of the property and subject it to the satisfaction of the judgment. Spaulding v. Coeur d’Alene Ry. & Nav. Co., 6 Idaho 638, 59 P. 426 (1899).

Am. Jur. 2d.

Compiler’s Notes.

The words “this act” refer to S.L. 1978, ch. 348, which is compiled as§§ 11-601 to 11-604 and 11-605 to 11-608.

Construction.

While exemption statutes are to be liberally construed, such construction should be reasonable. McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929).

Estoppel to Claim Exemption.

Fact that a debtor disclaims ownership of property at time of the levy of an attachment thereon does not estop him to afterward claim the property as exempt, where he did not advise, consent, or agree in any way to the levy and did not mislead the officer or prevent him from making a levy. Coey v. Cleghorn, 10 Idaho 166, 79 P. 72 (1904).

ALR.

What is “necessary” furniture entitled to exemption from seizure for debt. 41 A.L.R.3d 607.

Exemption of parsonage or residence of minister, priest, rabbi, or other church personnel. 55 A.L.R.3d 356.

Property of educational body as extending to property used by personnel as living quarters. 55 A.L.R.3d 485.

Compiler’s Notes.

The words “this act” refer to S.L. 1978, ch. 348, which is compiled as§§ 11-601 to 11-604 and 11-605 to 11-608.

Residents Defined.

Person living with his family on Indian reservation within the state, although a trespasser thereon, is nevertheless a resident of the state and entitled to the benefit of the exemption laws. Coey v. Cleghorn, 10 Idaho 166, 79 P. 72 (1904).

ALR.

§ 11-603. Property exempt without limitation.

An individual is entitled to exemption of the following property:

1. A burial plot for the individual and his family;
2. Health aids reasonably necessary to enable the individual or a dependent to work or to sustain health;
3. Benefits the individual is entitled to receive under federal social security, or veteran’s benefits, except the restrictions under this subsection shall not apply to enforcement of an order for the support of any person by execution, garnishment, or wage withholding under chapter 12, title 7, Idaho Code;
4. Benefits the individual is entitled to receive under federal, state, or local public assistance legislation;
5. Benefits payable for medical, surgical, or hospital care and the amount in a medical savings account as that term is defined in section 63-3022K, Idaho Code;
6. State unemployment compensation to the extent provided for in section 72-1375, Idaho Code.

History.

I.C.,§ 11-603, as added by 1978, ch. 348, § 1, p. 909; am. 1982, ch. 326, § 1, p. 807; am. 1985, ch. 159, § 7, p. 417; am. 1986, ch. 221, § 3, p. 584; am. 2009, ch. 121, § 1, p. 386.

Cross References.

Homestead exemption,§ 55-1001 et seq.

Amendments.

The 2009 amendment, by ch. 121, added “and the amount in a medical savings account as that term is defined in section 63-3022K, Idaho Code” in subsection (5).

Child Tax Credit.

While the child tax credit may have been viewed by Congress as good and necessary social policy, it was designed so as to benefit a large percentage of Americans, including taxpayers with incomes up to $110,000 per year, but was not adopted with a legislative purpose of public assistance within the contemplation or reach of subsection (4). In re Dever, 250 B.R. 701 (Bankr. D. Idaho 2000). Tax refunds paid to a debtor attributable to the federal additional child tax credit (ACTC), 26 USCS § 24, may be exempted by debtors, as benefits received under public assistance legislation, under this section. In re Farnsworth, 558 B.R. 375 (Bankr. D. Idaho 2016).

Economic Stimulus Check.

Payments that the Chapter 7 debtors received as part of an economic stimulus refund because the debtors had filed a 2007 federal income tax return and met certain income eligibility requirements was not in the nature of public assistance and could not be claimed as exempt. In re Wooldridge, 393 B.R. 721 (Bankr. D. Idaho 2008).

Federal Earned Income Credit Exempt.

The federal earned income credit as described in 26 U.S.C.S. § 32 is, due to its nature as social welfare relief, exempt property pursuant to subdivision (4) of this section. In re Jones, 107 Bankr. 751 (Bankr. D. Idaho 1989).

Money debtors had in a credit union account on the day they declared Chapter 7 bankruptcy could be reasonably traced to an Earned Income Credit (“EIC”) in the amount of $3,990 they received two weeks before they declared bankruptcy, and it did not lose its status as exempt property because the debtors placed the funds in the same account that held a Child Tax Credit (“CTC”) and a state tax refund. Although the CTC was not exempt from creditors’ claims under this section, the EIC and the CTC were already commingled before the debtors deposited the funds because both credits were paid in one transfer the debtors received from the U.S. government. In re Matsuura, 2013 Bankr. LEXIS 5264 (Bankr. D. Idaho Dec. 16, 2013).

Grocery Credit Not Exempt.

The grocery credit as described in former§ 63-3024A is not a form of social welfare legislation intended to provide people with the very means by which to live; it is an income tax deduction intended to replace sales taxes paid for food; therefore, the credit is property of the estate and is not subject to exemption. In re Jones, 107 Bankr. 751 (Bankr. D. Idaho 1989).

Health Aids.

Deposits in health savings account on the date of the bankruptcy petition were not exempt as a health aid, which likely refer to a tangible object, such as a wheelchair or a walker, utilized by an individual to sustain his health or to enable himself to work. In re Stanger, 385 B.R. 758 (Bankr. D. Idaho 2008).

Hope Credit.

The Hope credit, provided by 26 U.S.C.S. § 25A, is not an earned income credit that can be properly described as “public assistance legislation,” and is not exempt under subsection (4). The Hope credit was intended to encourage taxpayers’ education generally; it was not intended to help the poor. In re Crampton, 249 B.R. 215 (Bankr. D. Idaho 2000).

Social Security Benefits.

Chapter 7 trustee did not meet his burden under Fed. R. Bankr. P. 4003 of proving that a debtor acted in bad faith when she failed to timely amend her schedules to show that she received an award of Social Security Disability Insurance (“SSDI”) benefits shortly after she declared bankruptcy, such that her claim that the award was exempt from creditors’ claims under subsection (3) should be denied. Although the benefits were part of the debtor’s bankruptcy estate pursuant to 11 U.S.C.S. § 541 and the debtor was required under 11 U.S.C.S. § 522 to list them in her schedules, the debtor thought that she did not have to list the award to claim the exemption because her attorney had told her that SSDI benefits were exempt, and she amended her schedules shortly after she learned that she misunderstood her obligations. In re Varney, 449 B.R. 411 (Bankr. D. Idaho 2011).

Workers’ Compensation Benefits.

Where injured worker received a lump sum settlement of workers’ compensation benefits, and worker owed child support and arrearages from two previous marriages and support obligations for the care of another child, this section provided that an individual was entitled to exemption for benefits payable for medical care and that nothing in this section limited the exemption to past or present medical benefits, the lump sum agreement which designated and awarded medical benefits to worker obligor exempted the medical benefits from garnishment under this section. State Dep’t of Health & Welfare ex rel. Lisby v. Lisby, 126 Idaho 776, 890 P.2d 727 (1995).

Am. Jur. 2d.

ALR.

C.J.S.

§ 11-604. Property exempt to extent reasonably necessary for support.

1. An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents:
   1. benefits paid or payable by reason of disability or illness;
   2. money or personal property received, and rights to receive money or personal property for alimony, support, or separate maintenance;
   3. proceeds of insurance, a judgment, or a settlement, or other rights accruing as a result of bodily injury of the individual or of the wrongful death or bodily injury of another individual of whom the individual was or is a dependent; and
   4. proceeds or benefits paid or payable on the death of an insured, if the individual was the spouse or a dependent of the insured.
2. The phrase “property to the extent reasonably necessary for the support of him and his dependents” means property required to meet the present and anticipated needs of the individual and his dependents, as determined by the court after consideration of the individual’s responsibilities and all the present and anticipated property and income of the individual, including that which is exempt.

History.

I.C.,§ 11-604, as added by 1978, ch. 348, § 1, p. 909; am. 1982, ch. 326, § 2, p. 807; am. 1996, ch. 309, § 1, p. 1014; am. 2017, ch. 303, § 8, p. 799.

Cross References.

Homestead exemption,§ 55-1001 et seq.

Amendments.

The 2017 amendment, by ch. 303, deleted former subsection (3), which read: “The exemptions allowed by this section shall be lost immediately upon the commingling of any of the funds or amounts described in this section with any other funds”.

Effective Dates.

Section 13 of S.L. 1982, ch. 326 provided that the act should take effect on September 26, 1982.

Alimony.

Debtor’s delay in claiming exemption in alimony payments did not prejudice the trustee, estate or creditors, and based on the divorcing parties’ intent that the alimony was for debtor’s support and not part of the property settlement, court overruled trustee’s objection to the exemption. In re Rogers, 349 B.R. 667 (Bankr. D. Idaho 2005).

Trustee failed to meet his burden under Fed. R. Bankr. P. 4003(c) of proving that a Chapter 7 debtor improperly claimed an alimony exemption under subsection (1) of this section where (1) the payments were received under an agreement that labeled the payments alimony; (2) the significant disparity between the parties’ relative incomes indicated that the debtor required support; and (3) the entire sum was reasonably necessary for the debtor’s support when she filed her petition, and the entire sum would be reasonably necessary in the future, as the debtor would be a full-time college student for several years and would have student loans to repay when she graduated. In re Grimmett, 2010 Bankr. LEXIS 968 (Bankr. D. Idaho Mar. 24, 2010).

Annuity.

Because debtors did not show that the wife was a dependent of her former spouse, they could not exempt annuity payments under paragraph (1)(c). However, the annuity payments were exempt under§ 41-1836, but debtors were held to the statutory cap of $1,250 per month because their income was likely to exceed their expenses. In re Baldwin, 2012 Bankr. LEXIS 5376 (Bankr. D. Idaho Nov. 13, 2012).

Because debtors did not show that the wife was a dependent of her former spouse, they could not exempt annuity payments under paragraph (1)(c). However, the annuity payments were exempt under§ 41-1836, but debtors were held to the statutory cap of $1,250 per month because their income was likely to exceed their expenses. In re Baldwin, 2012 Bankr. LEXIS 5376 (Bankr. D. Idaho Nov. 13, 2012).

Bodily Injury Award.

The term “bodily injury,” as it appears in the personal bodily injury exemption statute, refers to an actual physical injury, not to pain and suffering consisting only of mental and emotional trauma. In re Hanson, 226 Bankr. 106 (Bankr. D. Idaho 1998).

Bankruptcy court treated a Chapter 7 debtor’s motion to set aside the court’s order sustaining a creditor’s objection to the debtor’s claim that the first $25,000 of any recovery she received in a personal injury action that she filed in state court was exempt from creditors’ claims as a motion seeking relief due to excusable neglect, and it granted the motion. Idaho law allowed the debtor to shield damages she was awarded for bodily injury up to a maximum of $25,000, there was only a minimal delay between the date the court entered its order and the date the debtor filed her motion, and it would have been unfair to penalize the debtor because her attorney failed to respond when the creditor objected to the debtor’s claim. In re Becker, 393 B.R. 233 (Bankr. D. Idaho 2008).

Commingling.

Although an inmate’s account is similar to a bank account into which earnings may have been deposited, if the inmate has made no effort in tracing his alleged wages, which he claims are exempt from garnishment under§ 11-207, the funds are commingled; thus, any exemption would fail under this section. Hooper v. State, 127 Idaho 945, 908 P.2d 1252 (Ct. App. 1995) (see 2017 amendment).

Prior to the 2017 amendment of this section, the exemption allowed by this section was lost immediately upon the commingling of any of the funds or amounts described in this section with any other funds. Hopkins v. Bridger (In re Bridger), 2017 Bankr. LEXIS 2459 (Bankr. D. Idaho Aug. 30, 2017).

Dependents.

The exemption in paragraph (1)(c) benefits not only the current dependents of the deceased, but also any former dependents. As the parties had stipulated that debtor was, albeit long ago, a dependent of the decedent; the court found that the requirement that debtor “was or is” a dependent of the decedent, her mother, was met. In re Duran, 2017 Bankr. LEXIS 1813 (Bankr. D. Idaho June 26, 2017).

Health Savings Account.

Deposits in health savings account on the date of the bankruptcy petition were not exempt as benefits paid or payable by reason of disability or illness. In re Stanger, 385 B.R. 758 (Bankr. D. Idaho 2008).

Life Insurance.

Contention of debtors that because the children’s lives were insured by life insurance policies, the policies belonged to the children and not the estate failed since there was no evidence that such policies actually belonged to the debtors’ children and the children did not have the right to designate the policy beneficiaries or to “cash out” the policies, as both of these rights belonged to the debtors; thus, insurance policies were non-exempt property of the estate. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994).

Retirement Benefits.

Benefits paid or payable by means of disability or illness are exempt from execution or attachment to the extent reasonably necessary for the support of the debtor and his dependents. However, retirement benefits, payable by reason of disability coupled with length of service, are not accorded the same protection. Desfosses v. Desfosses, 120 Idaho 27, 813 P.2d 366 (Ct. App. 1991).

While the benefits of early retirement incentive program of school district were not a pension or an annuity, it was a “similar plan” that provided retirement benefits to those individuals accepted in the program based on age and length of service; thus, since debtor had no other source of income afforded by regular employment, these funds were necessary for his support and were exempt property under provisions of former subsection (1)(e) of this section. In re Carlson, 192 Bankr. 755 (Bankr. D. Idaho 1996).

Right to Payment of Money.

Real property may be exempt under subdivision (1)(b) of this section where the underlying right is a right to payment of money; real property transferred in satisfaction of future child support obligations would be exempt where the property was to be sold and the proceeds used to pay the children’s obligations. In re Russell, 163 Bankr. 584 (Bankr. D. Idaho 1994). Proceeds from the sale of a debtor’s marital homestead were not exempt under subsection (1)(b) of this section as funds necessary to make support payments to his ex-spouse because: (1) the statute provides an exemption of support monies to the extent necessary for the support of a debtor and his dependents, and, thus, it does not allow an exemption for funds paid out by a debtor to benefit another; (2) the statute only exempts money received for support, and here, the funds were received as sale proceeds; and (3) while it was true that the debtor’s ex-spouse had a priority claim under 11 U.S.C.S. §§ 507(a)(1) and 726, allowing the debtor to use the sale proceeds to pay support payment would essentially allow him to use an asset of his bankruptcy estate to prefer a particular creditor at the expense of other creditors. In re Marriott, 427 B.R. 887 (Bankr. D. Idaho 2010).

The debtor was not allowed, under paragraph (1)(b), to exempt unpaid child support that she was owed, because her children were adults and did not rely on her for support, and the exemption is only for present and future needs of a spouse or minor children. In re Mathews, 565 B.R. 662 (Bankr. D. Idaho 2017).

Decisions Under Prior Law

Commingling.

Act of a debtor in procuring a third person to draw the debtor’s wages from his employer and to hold them subject to the call of the debtor does not constitute such commingling of wages with other funds to defeat debtor’s right of exemption. Elliott v. Hall, 3 Idaho 421, 31 P. 796 (1918) (see 2017 amendment).

Am. Jur. 2d.

C.J.S.

Federal References.

Sections 401, 403, 408, 408A, 409, and 457 of the Internal Revenue Code, cited throughout this section, are compiled as 26 U.S.C.S. §§ 401, 403, 408, 408A, 409 and 457.

Compiler’s Notes.

Effective Dates.

Section 2 of S.L. 2004, ch. 167 declared an emergency. Approved March 23, 2004.

Bankruptcy.

Income that is arguably exempt under this section may nonetheless be considered when assessing a debtor’s ability to fund a chapter 13 plan. In re Soto, 2012 Bankr. LEXIS 2632 (Bankr. D. Idaho June 8, 2012).

For the purposes of this exemption statute, “employee benefit plan” is defined expansively to include “any plan or arrangement” described in one of six sections of 42 USCS § 408, which governs the establishment and operation of IRAs. Accordingly, in Idaho, a bankruptcy debtor may exempt his or her interest in a qualified IRA. In re Smith, 570 B.R. 844 (Bankr. D. Idaho 2017).

Bankruptcy Planning.

Bankruptcy court denied a bankruptcy trustee’s objections to Chapter 7 debtors’ actions two weeks before declaring bankruptcy, where debtors withdrew $12,000 cash value from a life insurance policy, claimed exemption for the $4,872 remaining in the policy under§ 11-605(10), and purchased two $6,000 IRAs and claimed exemption for them under this section. The debtors were allowed to maximize their exemptions before they declared bankruptcy and did not commit fraud on their creditors. In re Thomas, 477 B.R. 778 (Bankr. D. Idaho 2012).

Claim of Partial Exemption.

The manner in which the debtors’ exemption was asserted suggested that part of the value in a 401(k) was not claimed exempt and, thus, remained part of the bankruptcy estate. That value had to be considered in evaluating whether the plan met the requirement that unsecured creditors in a chapter 13 receive as much as they would should debtors liquidate under chapter 7. In re Hobart, 452 B.R. 789 (Bankr. D. Idaho 2011).

College Savings Accounts.

Hardship Withdrawal.

Although Idaho residents who declared bankruptcy are allowed under this section to exempt money that was in a college savings account they established under§§ 33-5401 through 33-5410 from creditors’ claims, a Chapter 7 debtor was not allowed to exempt money she contributed to three college savings accounts less than 365 days before she declared bankruptcy, plus dividends and capital gains that were paid during that 365-period, because she created her college savings accounts under Virginia, not Idaho, law. In re Acarregui, 572 B.R. 247 (Bankr. D. Idaho 2017). Hardship Withdrawal.

Chapter 7 debtors’ claim of exemption under this section for funds acquired through a hardship withdrawal from a retirement plan was disallowed. The funds from the distribution were deposited in the debtors’ money market account and neither continued to be held in an employee benefit plan nor were paid to the debtors on account of one of the statutory conditions — by reason of age, illness, disability, or length of service. In re Carlson, 2009 Bankr. LEXIS 3319 (Bankr. D. Idaho Aug. 20, 2009).

Lack of Objection.

Exemption was allowed for the transfer of debtors’ assets to an IRA under this section because the trustee made no objection under federal Bankruptcy Rule 4003(b). Gugino v. Orlando (In re Ganier), 403 B.R. 79 (Bankr. D. Idaho 2009).

Spousal Support.

A spouse owed support under an agreement drawn up separate from the divorce proceedings may use a qualified domestic relations order to reach the defaulting spouse’s 401(k) savings to enforce a judgment under that agreement. Kesting v. Kesting, 160 Idaho 214, 370 P.3d 729 (2016).

Cross References.

Homestead exemption,§ 55-1001 et seq.

Amendments.

The 2008 amendment, by ch. 57, substituted “five thousand dollars ($5,000)” for “three thousand dollars ($3,000)” in subsection (3).

The 2010 amendment, by ch. 223, in the section catchline, inserted “and disposable earnings”; in the introductory paragraph in subsection (1), substituted “seven hundred fifty dollars ($750)” for “five hundred dollars ($500)” and “seven thousand five hundred dollars ($7,500)” for “five thousand dollars ($5,000)”; in subsection (3), substituted “two thousand five hundred dollars ($2,500)” for “one thousand five hundred dollars ($1,500),” inserted “business equipment,” and substituted “seven thousand dollars ($7,000)” for “five thousand dollars ($5,000)”; added subsection (4) and redesignated subsequent subsections accordingly; in subsection (8), substituted “seven hundred fifty dollars ($750), or less” for “less than five hundred dollars ($500)”; and added subsection (12).

The 2015 amendment, by ch. 112, rewrote subsection (9), which formerly read: “Any unmatured life insurance contract owned by an individual, other than a credit life insurance contract”; deleted former subsection (10), which read: “An individual’s aggregate interest, not to exceed five thousand dollars ($5,000) in any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the individual under which the insured is the individual or a person of whom the individual is a dependent”; and redesignated former subsections (11) and (12) as present subsections (10) and (11). The 2020 amendment, by ch. 232, substituted “one thousand dollars ($1,000)” for “seven hundred fifty dollars ($750)” near the middle of the introductory paragraph in subsection (1); in subsection (3), substituted “ten thousand dollars ($10,000)” for “two thousand five hundred dollars ($2,500)” near the beginning, and substituted “ten thousand dollars ($10,000)” for “seven thousand dollars ($7,000)” at the end; substituted “An individual is entitled to an exemption of all arms, uniforms and accoutrements” for “All arms, uniforms and accouterments” at the beginning of subsection (6); in subsection (7), substituted “An individual is entitled to an exemption of a water right” for “A water right” at the beginning and substituted “five thousand dollars ($5,000)” for “one thousand dollars ($1,000)” at the end; in subsection (9), substituted “An individual is entitled to an exemption of any life insurance” for “Any life insurance” at the beginning; rewrote subsection (10), which formerly read: “An individual’s aggregate interest in any tangible personal property, not to exceed the value of eight hundred dollars ($800)”; and substituted “two thousand five hundred dollars ($2,500)” for “one thousand five hundred dollars ($1,500)” near the end of the first sentence in subsection (11).

Effective Dates.

Section 2 of S.L. 1983, ch. 16 declared an emergency. Approved March 7, 1983.

Section 3 of S.L. 2000, ch. 231 declared an emergency. Approved April 12, 2000.

Section 2 of S.L. 2010, ch. 223 declared an emergency. Approved March 31, 2010.

Section 3 of S.L. 2020, ch. 232 declared an emergency and made the amendments to this section applicable to bankruptcy petitions filed on and after March 23, 2020. Approved March 23, 2020.

Earnings.

Firearms.

Commissions that a debtor received after she declared Chapter 7 bankruptcy, when an insured renewed a policy that the debtor had sold to the insured before she declared bankruptcy, were property of her bankruptcy estate, because the right to receive those commissions existed pre-petition and the debtor was not required to perform personal services postpetition to receive renewal commissions. However, to the extent that the first-year commissions and the first-year advances that the debtor received pre-petition were property of her bankruptcy estate, 75% of those payments were exempt from creditors’ claims under§ 11-207 and the debtor could exempt the balance of those earnings, and part of her renewal commissions, under this section. In re Lott, 2018 Bankr. LEXIS 2126 (Bankr. D. Idaho July 19, 2018). Firearms.

Since subsection (1)(a) of this section allows the exemption of one firearm per debtor, debtors may claim one firearm each. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (see 1999 amendment).

Firearms could qualify as household goods provided debtor could establish the weapon was actually used in such a way as to facilitate the daily operation and support of the household. In re Mason, 254 B.R. 764 (Bankr. D. Idaho 2000) (see 1999 amendment).

Furnishings and Appliances.

Subsection (1)(a) of this section does not allow debtors to exempt any furnishings and appliances but only those furnishings and appliances which are reasonable. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (“reasonable” test deleted by 1999 amendment).

Heirlooms.

Court sustained a Chapter 7 trustee’s objection to debtors’ claim that a boat was exempt as an heirloom under paragraph (1)(c), where their deceased son purchased the boat from his aunt and they acquired the boat from his probate estate and intended to hold it until his son reached the age of majority, as this was not a multi-generational transfer. In re Merrill, 2012 Bankr. LEXIS 4451 (Bankr. D. Idaho Sept. 24, 2012).

Insurance Policies.

The trustee’s objection to the Chapter 7 debtor’s exemption under this section was sustained to the extent that it contested exemption of accrued dividends or interest under, or loan value of, the insurance policies in excess of $5,000 in the aggregate, but such objection would otherwise be overruled. In re Oxford, 274 B.R. 887 (Bankr. D. Idaho 2002) (see 2015 amendment).

Exemptions under former subsection (10) [now repealed] may only be taken by those who own an unmatured life insurance policy, and, even then, only if the person claiming the exemption is the insured or a dependent of the insured. Although parents own insurance policies on various minor children, they may not claim an exemption in those policies, and wife cannot claim an exemption on a policy owned by her husband. In re Steiner, 459 B.R. 748 (Bankr. D. Idaho 2010) (see 2015 amendment).

Wife who declared Chapter 7 bankruptcy properly claimed the exemption allowed by former subsection (10) [now repealed] of this section in the cash surrender value of a policy that insured her life, even though her husband owned the policy, because she had an ownership interest in the policy under Idaho’s community property law. The husband purchased the policy on his wife’s life after their marriage, and they paid all premiums due on the policy using community property funds. In re Thompson, 2011 Bankr. LEXIS 2654 (Bankr. D. Idaho July 11, 2011) (see 2015 amendment).

Bankruptcy court denied a bankruptcy trustee’s objections to Chapter 7 debtors’ actions two weeks before declaring bankruptcy, where debtors withdrew $12,000 cash value from a life insurance policy, claimed exemption for the $4,872 remaining in the policy under former subsection (10) [now repealed], and purchased two $6,000 IRAs and claimed exemption for them under§ 11-604A. The debtors were allowed to maximize their exemptions before they declared bankruptcy and did not commit fraud on their creditors. In re Thomas, 477 B.R. 778 (Bankr. D. Idaho 2012) (see 2015 amendment). Trustee acted properly when he filed an objection to the debtor’s claim that the cash value of five insurance policies that the debtor owned was exempt from creditors’ claims under former subsection (10) [now repealed] and obtained an order which allowed him to liquidate all five policies and pay the debtor $5,000 out of $75,033 in proceeds that he received from the insurance company. Although the debtor could have claimed that the policies were exempt under subsection (9), he failed to do so. The trustee was not obliged to divine that the debtor intended to rely on subsection (9), when he claimed exemptions under former subsection (10) [now repealed]. In re Wisdom, 478 B.R. 394 (Bankr. D. Idaho 2012) (see 2015 amendment).

Subsections (9) and former (10) [now repealed] were intended by the legislature to protect two different types of interests in unmatured life insurance contracts: subsection (9) exempts the life insurance policy, while former subsection (10) [now repealed] exempts the life insurance policy’s cash value. In re Wisdom, 478 B.R. 394 (Bankr. D. Idaho 2012) (see 2015 amendment).

If a debtor exempts a life insurance policy under subsection (9), the trustee cannot surrender the policy. Instead, the trustee may exercise other rights under the policy, such as directly borrowing the loan value of the policy leaving the debtor with the insurance policy in place, but encumbered by the loans, subject to the debtor’s right to exempt $5,000 of the loan value, dividends, or interest. Wisdom v. Gugino (In re Wisdom), 490 B.R. 412 (D. Idaho 2013), aff’d, 649 Fed. Appx. 583 (9th Cir. 2016) (see 2015 amendment).

If a debtor wishes to exempt an insurance policy under subsection (9), he must actually claim that exemption. Debtor does not implicitly exempt an insurance policy under subsection (9), when he only claims an exemption under former subsection (10) [now repealed]. Wisdom v. Gugino (In re Wisdom), 490 B.R. 412 (D. Idaho 2013), aff’d, 649 Fed. Appx. 583 (9th Cir. 2016) (see 2015 amendment).

Mobile Home.

A mobile home may be claimed as a homestead exemption in bankruptcy proceedings, but may not be claimed as a personal property exemption. In re Rogers, 225 Bankr. 755 (Bankr. D. Idaho 1998).

Where the debtor sought to claim an exemption in a mobile home that she owned with her mother, pursuant to subsection (10) of this section and 11 U.S.C.S. § 522(b)(3)(B), she failed to show that her interest in the mobile home was exempt from process under§ 11-609. In re Antonie, 432 B.R. 843 (Bankr. D. Idaho 2010), aff’d, 447 B.R. 610 (D. Idaho 2011).

Motor Vehicles.

This section does not preclude debtors from applying each of their exemptions to the same motor vehicle, or each individual exemption to a separate motor vehicle. In re Jackson, 147 Bankr. 49 (Bankr. D. Idaho 1992).

In Chapter 7 proceedings, since there was no written loan agreement between the debor and her creditor father, there was no perfected security interest which could be avoided by the bankruptcy trustee, and, thus, debtor was entitled to a $3000 motor vehicle exemption from proceeds of the sale of her vehicle. In re Seibold, 351 B.R. 741 (Bankr. D. Idaho 2006) (now $7000).

Bankruptcy court sustained a Chapter 7 trustee’s objection to a debtor’s claim that an all-terrain vehicle (ATV) that the trustee recovered from a person who bought the ATV from the debtor was the debtor’s property, and that $800 of the ATV’s value was exempt from creditors’ claims. In re Ady, 2010 Bankr. LEXIS 3077 (Bankr. D. Idaho Aug. 25, 2010). An all-terrain vehicle does not qualify for Chapter 7 exemption. The restricted license plate did not allow it to be driven on most Idaho roads, nor were any safety mechanisms required to obtain such a license; it remained non-exempt even after the amendments to the license and registration requirements for ATVs under§ 67-7122. In re Bosworth, 449 B.R. 104 (Bankr. D. Idaho 2011).

The motor vehicle exemption in subsection (3) does not include off-road vehicles, recreational vehicles, or those vehicles whose operation on the public highways would be illegal. In re Haworth, 604 B.R. 394 (Bankr. D. Idaho 2019).

Once the trustee has shown that a 1937 Ford is not properly equipped to operate on Idaho roads, he has met his burden to prove that the Ford does not qualify as a motor vehicle for purposes of the exemption in subsection (3). The burden, then, shifts to the debtors to demonstrate that the exemption is proper. In re Haworth, 604 B.R. 394 (Bankr. D. Idaho 2019).

Musical Instruments.

Subsection (1) of this section does not limit the number of musical instruments a debtor may exempt nor does it provide that the value of the exempt instruments when totaled may not exceed $500. In re Rushdi, 174 Bankr. 126 (Bankr. D. Idaho 1994).

Pets.

The fact that an animal does not physically reside within a debtor’s house should not be determinative of whether that animal is to be classified as a household pet, since many people keep their pets outside while still regarding them as a part of the family’s domestic setting. In re Gallegos, 226 Bankr. 111 (Bankr. D. Idaho 1998).

Where a family kept a horse in their rural home as their only pet, used it for purely personal purposes, and expended modest amounts on its upkeep, they could claim a household pet exemption. In re Gallegos, 226 Bankr. 111 (Bankr. D. Idaho 1998).

A family horse could be claimed as a household pet, since any attempt to abuse that exemption, such as claiming a thoroughbred race horse as a pet, would have been bridled not only by the “personal use” requirements, but by the dollar limitation contained in the statute. In re Gallegos, 226 Bankr. 111 (Bankr. D. Idaho 1998).

Reasonably Necessary.

Whether a particular item of household furnishings and appliances is reasonably necessary depends in part upon local custom and usage which may change over time. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (“reasonably necessary” requirements abolished by 1999 amendment).

VCRs, televisions and stereos are now so prevalent in local households, they are reasonably necessary household furnishings and appliances and may be claimed as an exemption under subsection (1)(a) of this section; however, more than one TV or VCR should not be reasonably necessary to furnish a household and, thus, debtors will not be allowed to exempt any additional TVs, VCRs, or stereo entertainment units. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (“reasonably necessary” requirements abolished by 1999 amendment).

While an exemption for utility, patio furniture and an entertainment cabinet will be allowed under subsection (1)(a) of this section, sporting goods, bowling balls, golf clubs, fishing equipment, camping equipment, video games and cameras are recreational items and recreational equipment is not reasonably necessary for the household and is, therefore, not exempt. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (“reasonably necessary” requirements abolished by 1999 amendment). Since a computer, computer system and software are luxury items as compared to reasonably necessary household items, claims for exemption of these items will not be allowed; however, a computer desk which is serviceable as an ordinary desk would be exempted. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (“reasonably necessary” requirements abolished by 1999 amendment).

Creditor’s contention that debtors’ television, stereo and VCR are not exempt household furnishings or appliances runs contrary to long-standing rulings recognizing that these kinds of items may be exempted as reasonably necessary household appliances. In re Kinnemore, 181 Bankr. 516 (Bankr. D. Idaho 1995) (“reasonably necessary” requirements abolished by 1999 amendment).

What may be considered reasonable and necessary furnishings and appliances in a bankruptcy proceeding is determined in part by local custom and usage. In re Andrews, 225 Bankr. 485 (Bankr. D. Idaho 1998) (“reasonably necessary” requirements abolished by 1999 amendment).

A certain amount of decorative items and hand tools are reasonable furnishings for a household, although a specific item of art which had a significant value or which was not commonly found in most households might be outside the scope of the statute. In re Andrews, 225 Bankr. 485 (Bankr. D. Idaho 1998) (“reasonably necessary” requirements abolished by 1999 amendment).

Tools of Trade.

Karaoke machine could not be exempted as a “tool of the trade”; debtor could still pursue his profession without the use of the Karaoke machine, as it was not essential in protecting and continuing debtor’s living as a bar or restaurant manager. In re Fancher, 168 Bankr. 712 (Bankr. D. Idaho 1994).

The mere fact that a debtor uses an item in the earning of his livelihood is not sufficient to allow an exemption of the item under subsection (3) of this section; however where an employer expends money for the purpose of allowing an employee to work at home, those items actually used by the debtor to work at home may be considered tools of the trade and therefore exempt under this section. In re Biancavilla, 173 Bankr. 930 (Bankr. D. Idaho 1994) (see 2010 amendment).

Chapter 7 debtor, who previously designed furniture for a living and hoped to return to that occupation when he was physically and financially able to do so, was not entitled to claim an exemption for his woodworking tools as “tools of the trade” because the tools were not needed for his current, successful position as a window salesman. In re Moore, 349 B.R. 44 (Bankr. D. Idaho 2005).

Chapter 7 debtors, a physician and an accountant, were not entitled to an exemption under subsection (3) of this section for farm equipment as tools or implements because farming could not be considered the debtors’ occupation and it did not generate income necessary for the debtors’ continued financial support. In re McHugh, 2010 Bankr. LEXIS 2105 (Bankr. D. Idaho May 27, 2010). Where debtor had formerly worked as a carpenter, but was currently working laying concrete, a tool trailer and a compressor, and other tools formerly used in his carpentry work, were not necessary for the debtor’s continued financial support and, therefore, were not exempt under subsection (3). The debtor’s concrete work provided an adequate income to meet his family’s basic needs at the present time. In re Blackburn, 2011 Bankr. LEXIS 178 (Bankr. D. Idaho Jan. 19, 2011).

Decisions Under Prior Law

Family Portraits.

“Pictures and albums,” referring to family photographs, may be construed to mean family portraits and their necessary frames. McMillan v. United States Fire Ins. Co., 48 Idaho 163, 280 P. 220 (1929).

Farmers.

It is not necessary that claimant should be actually engaged in farming at time exemption is claimed, where evidence shows that it was his former and expectant occupation. Aslett v. Evans, 48 Idaho 206, 280 P. 1036 (1929).

Hay being fed by a farmer to his animals is entitled to exemption although the farmer wanted to sell it and buy other hay at place to which he intended to move. Aslett v. Evans, 48 Idaho 206, 280 P. 1036 (1929).

Public Buildings.

It is universal rule, in absence of specific provision therefor, that general statutes granting mechanics’ liens are not construed to include public buildings. Boise-Payette Lumber Co. v. Challis Indep. Sch. Dist. No. 1, 46 Idaho 403, 268 P. 26 (1928).

Tools of Trade.

Polyartist or jack of all trades may claim exemption of tools appropriate to more than one trade if he uses them in his business and the total value does not exceed the statutory limit. In re Robinson, 206 F. 176 (D. Idaho 1913).

Electric motor and lathe may properly be classed as implements and exempt when used by a mechanic in his business. In re Robinson, 206 F. 176 (D. Idaho 1913).

Am. Jur. 2d.

C.J.S.

ALR.

Construction and application of exemption for firearms under state law. 46 A.L.R.6th 401.

Compiler’s Notes.

The bracketed insertion in the first sentence was added by the compiler to correct the word used in the enacting legislation.

This section was enacted with a subsection (1), but no subsection (2).

Alimony.

Husband can not claim as objection to payment of alimony to his divorced wife that half of his present salary is community property belonging to his present wife. Humbird v. Humbird, 42 Idaho 29, 243 P. 827 (1926).

Federal References.

The federal bankruptcy act, referred to in subsection (2) of this section, is compiled as 11 U.S.C.S. § 101 et seq.

Compiler’s Notes.

The words “this act” refer to S.L. 1978, ch. 348, which is compiled as§§ 11-601 to 11-604 and 11-605 to 11-608. The bracketed insertion in subsection (1)(c) was added by the compiler to update the state agency name.

Effective Dates.

Section 70 of S.L. 1989, ch. 88 as amended by § 1 of S.L. 1990, ch. 45 provided that the act would become effective July 1, 1990.

Avoidance Under Bankruptcy.

Were it not for creditor’s lien, debtors would be entitled to an exemption in their television, stereo and VCR pursuant to§ 11-605 (1)(a). Therefore, under the U.S. Supreme Court’s instructions, subsection (1)(a)(5) of this section does not protect creditor’s lien from avoidance under the Bankruptcy Code. In re Kinnemore, 181 Bankr. 516 (Bankr. D. Idaho 1995).

Spousal Support.

This section does not distinguish between court-ordered support that is part of a final divorce decree and support provided for by an separate agreement between the divorcing parties, where the obligation is reduced to a judgment. Kesting v. Kesting, 160 Idaho 214, 370 P.3d 729 (2016).

A spouse owed support under an agreement drawn up separate from the divorce proceedings may use a qualified domestic relations order to reach the defaulting spouse’s 401(k) savings to enforce a judgment under that agreement. Kesting v. Kesting, 160 Idaho 214, 370 P.3d 729 (2016).

Compiler’s Notes.

Section 2 of S.L. 1978, ch. 348 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 3 of S.L. 1981, ch. 81 declared an emergency. Approved March 23, 1981.

Exemptions Allowed.

Under this section, Idaho debtors may access exemptions allowed under Idaho law, as well as those listed in 11 U.S.C.S. § 522(b)(3). In re Thomason, 2013 Bankr. LEXIS 886 (Bankr. D. Idaho Feb. 19, 2013).

Limitations on Exemptions.

Idaho has “opted-out” of the federal bankruptcy exemptions, and its citizens are limited to the exemptions allowed under state law. In re Millsap, 122 Bankr. 577 (Bankr. D. Idaho 1991).

Because Idaho opted out of the federal bankruptcy exemptions, a Chapter 7 debtor may utilize only the exemptions provided under state law pursuant to 11 U.S.C.S. § 522(b)(3) and this section; although Idaho’s exemption statutes are to be liberally construed in the debtor’s favor, they may not be “tortured” in the guise of liberal construction. In re Grimmett, 2010 Bankr. LEXIS 968 (Bankr. D. Idaho Mar. 24, 2010).

Where the debtor sought to claim an exemption in a mobile home that she owned with her mother, pursuant to subsection (10) of§ 11-605 and 11 U.S.C.S. § 522(b)(3)(B), she failed to show that her interest in the mobile home was exempt from process under this section. In re Antonie, 432 B.R. 843 (Bankr. D. Idaho 2010), aff’d, 447 B.R. 610 (D. Idaho 2011).

Under 11 U.S.C.S. § 522(b)(3)(A), Chapter 7 debtors who resided in Idaho were required to apply the Idaho homestead exemption,§§ 55-1001, 55-1003, and 55-1004; the debtors could not apply the Idaho homestead exemption to a home located in Washington state and could not apply Washington state homestead law to their case in Idaho. In re Harris, 2010 Bankr. LEXIS 2020 (Bankr. D. Idaho June 23, 2010).

Cited

Because Idaho has opted out of the Bankruptcy Code’s exemption scheme, debtors in Idaho may claim only those exemptions allowable under Idaho law, as well as those listed in 11 U.S.C.S. § 522(b)(3). In re Forshee, 2010 Bankr. LEXIS 3044 (Bankr. D. Idaho Sept. 16, 2010). Cited In re Peters, 168 Bankr. 710 (Bankr. D. Idaho 1994); In re Rushdi, 174 Bankr. 126 (Bankr. D. Idaho 1994); In re Crampton, 249 B.R. 215 (Bankr. D. Idaho 2000); In re Dever, 250 B.R. 701 (Bankr. D. Idaho 2000); In re Mason, 254 B.R. 764 (Bankr. D. Idaho 2000); In re Oxford, 274 B.R. 887 (Bankr. D. Idaho 2002); In re Cerchione, 398 B.R. 699 (Bankr. D. Idaho 2009); In re Thomas, 477 B.R. 778 (Bankr. D. Idaho 2012); In re Merrill, 2012 Bankr. LEXIS 4451 (Bankr. D. Idaho Sept. 24, 2012); In re Matsuura, 2013 Bankr. LEXIS 5264 (Bankr. D. Idaho Dec. 16, 2013); In re Johns, 504 B.R. 657 (Bankr. D. Idaho 2014).

Cross References.

Department of finance,§ 67-2701 et seq.

Wife of Judgment Debtor.

The spouse of the defendant, having not been a named party defendant, did not qualify as a judgment debtor and, was not within the scope of this section and, thus, her wages could not be garnished. Miller v. Miller, 113 Idaho 415, 745 P.2d 294 (1987).

Identity of Judgment Debtor.

Where interrogatory served upon bank with a writ of execution named as judgment-debtor a corporation with a name similar to bank customer, the bank should have answered either that it had no funds in the name of the judgment debtor or that it did not have funds in that name but did have funds in a similar name thereby placing the burden on the judgment creditor to take further action; absent any such affirmative action by the creditor or the court, the bank would not be entitled to treat its customer’s account as impounded. Yacht Club Sales & Serv., Inc. v. First Nat’l Bank, 101 Idaho 852, 623 P.2d 464 (1980).

Notice of Garnishment.

“Notice of garnishment,” referred to in this section, is a notice that property levied on is attached. Eagleson v. Rubin, 16 Idaho 92, 100 P. 765 (1909).

Cross References.

Director of department of labor,§ 72-1318.

Cross References.

Public employee retirement system,§ 59-1301 et seq.

Compiler’s Notes.

The abbreviation enclosed in parentheses so appeared in the law as enacted.

Debt Not Due.

If debt is not due at time of garnishment notice, it is not subject to garnishment. Everson v. Atlas Tie Co., 73 Idaho 91, 245 P.2d 773 (1952).

Defenses.

Garnishee who paid money into court upon receipt of garnishment notice, prior to accrual of debt, could not assert garnishment proceedings as a defense to suit on debt by assignee of account. Everson v. Atlas Tie Co., 73 Idaho 91, 245 P.2d 773 (1952).

Examination of Garnishee.

Where a debt claimed to be due by one person to another is attached, and such person has been examined and the existence of liability denied, the court or judge has no power to order a judgment against such alleged debtor upon such examination. Lindenthal v. Burke, 2 Idaho 571, 21 P. 419 (1889).

Garnishee’s Remedy Against Debtor.

Garnishee is liable to attaching creditor to amount of his indebtedness to defendant in attachment suit and, if sued by such defendant, may procure a suspension of proceedings until his liability to attaching creditor is determined by motion based on affidavit setting up garnishment. Van Ness v. McLeod, 3 Idaho 439, 31 P. 798 (1892).

Maintenance of Garnishment Proceedings.

Rule is that in order that creditor may maintain garnishment proceedings there must be subsisting right of action at law by defendant in his own right against garnishee, and latter can not be held liable unless it be shown that he is indebted to defendant at the time of commencement of garnishment proceedings. H. W. Johns-Manville Co. v. Allen, 37 Idaho 153, 215 P. 840 (1923).

Lien of attachment holds property independent of any surrender by garnishee. Sullivan v. Mabey, 45 Idaho 595, 264 P. 233 (1928).

Discharge of Garnishment.

Third parties having property or credits may discharge garnishment by delivering to officer making levy all such property or credits or sufficient money to discharge claim. Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102 (1926), overruled on other grounds, Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957 (1934).

Construction and Purpose.

Statute awards to third party no right to order of delivery, but only right that when order is made, his rights shall be protected; in other words, court takes over property not for protection of claimant but for protection of moving creditor, meanwhile seeing to it that claimant’s interests are duly guarded. Sullivan v. Mabey, 45 Idaho 595, 264 P. 233 (1928).

Proceedings Against Garnishee.

While the court may direct garnishee to submit to an examination with respect to indebtedness claimed and may, by proper order, authorize plaintiff to commence an action against garnishee, and restrain him, pending action, from transferring or disposing of his interest in debt in case he denies indebtedness, it can not direct entry of judgment against garnishee without allowing him a hearing upon issue so raised. Lindenthal v. Burke, 2 Idaho 571, 21 P. 419 (1889).

Cross References.

State controller,§ 67-1001 et seq.

State tax commission,§ 63-101.

Default Defined.

The default provided for in this section does not mean a default judgment or that judgment may be rendered against garnishee for amount claimed by plaintiff to be due from garnishee to defendant, but is a mere declaration that garnishee failed to appear and answer. Eagleson v. Rubin, 16 Idaho 92, 100 P. 765 (1909).

Judgment Against Defendant.

No valid judgment may be entered against garnishee defendant until judgment has been entered against defendant in main action. First Nat’l Bank v. Drew, 37 Idaho 470, 216 P. 1034 (1923).

Judgment Against Garnishee.

Where judgment recited that garnishee denied indebtedness to defendant and did not show exception by plaintiff to garnishee’s answer, and garnishee’s answer or plaintiff’s exception does not appear in record, there was no issue upon which judgment could be rendered against garnishee. Twin Falls Realty Co. v. Brune, 45 Idaho 579, 264 P. 382 (1928).

Application of Section.

Transfer of stock by cooperative nonprofit association to its members could be attacked in garnishment proceedings against members on ground of fraud, since purpose of this section is that all issues should be adjudicated in proceeding incident to main action to avoid a multiplicity of suits. Associated Fruit Co. v. Idaho-Oregon Fruit Growers’ Ass’n, 44 Idaho 200, 256 P. 99 (1927).

Court has right to require garnishee to appear for examination but has no authority to render judgment against him without opportunity given him to contest his liability upon hearing on issue legally raised as provided by statute. Twin Falls Realty Co. v. Brune, 45 Idaho 579, 264 P. 382 (1928).

Construction.

This section authorizes entry of judgment against garnishee only if there is unconditional and unqualified admission of indebtedness from garnishee to defendant. Blackaby v. Dunning, 40 Idaho 20, 232 P. 566 (1924).

Extension of Time Prior to Default.

Until the default of garnishee for want of an answer is filed, court possesses power to permit answer to be made or to extend or enlarge time to plead. Eagleson v. Rubin, 16 Idaho 92, 100 P. 765 (1909).

Judgment Unauthorized.

Where there is no showing in record that garnishee was served with due notice of motion for judgment, entry of judgment against him is unauthorized. Blackaby v. Dunning, 40 Idaho 20, 232 P. 566 (1924).

No Issue Joined.

Where there is nothing in judgment to show that plaintiff excepted to or denied answer of garnishee, denying liability, and where neither answer of garnishee or exception or denial thereof appears in record, there is no issue before court upon which it could render judgment against garnishee. Twin Falls Realty Co. v. Brune, 45 Idaho 579, 264 P. 382 (1928).

Mode of Assignment.

In the absence of statutory provisions prescribing mode of assignment, no particular method or form is necessary to effect a valid assignment of property, claims, or debts, so as to defeat garnishment proceedings by a creditor or assignor; if the intent of the party to effect an assignment be clearly established, it is sufficient. Porter v. Title Guar. & Sur. Co., 21 Idaho 312, 121 P. 548 (1912).

Right to Appeal.

Fact that respondent was not named as a party to the main proceedings, to which the garnishment proceedings were ancillary, is immaterial. Hanson v. Weniger, 31 Idaho 540, 173 P. 1085 (1918).

No appeal can be taken by garnishee defendant until judgment has been entered against him. First Nat’l Bank v. Drew, 37 Idaho 470, 216 P. 1034 (1923).