Posted: May 15, 2013
Rules of Civil Procedure
URCP 007. Pleadings allowed; motions, memoranda, hearings, orders. Amend. Adopts expedited procedures for resolution of specified motions related to disclosure and discovery. If approved, similar provisions currently in the Code of Judicial Administration will be deleted.
URCP 058A. Entry of judgment; abstract of judgment. Amend. Requires the party preparing the judgment to promptly serve a copy of the signed judgment on the other parties and promptly file proof of service with the court. Proposed in conjunction with proposed amendments to URAP 4.
URCP 058B. Satisfaction of judgment. Amend. Requires the creditor to file a satisfaction of judgment upon the debtor’s request.
URCP 064D. Writ of garnishment. Amend. Extends a writ of continuing garnishment to one year, unless a second or subsequent writ is served.
One problem with extended writs of continuing garnishments out to a year is the issue of interest. When you apply for the writ you state the interest to the date of application. If the writ continues for a full year, it effectively freezes the interest on it for that full year as well. While this may seem nominal given statutory interest currently, another rate may govern the judgment pursuant to agreement of the parties. This would be problematic. The rule should fix this somehow.
The page limit in the “expedited procedures” proposed to be added to Rule 7 of the Utah Rules of Civil Procedure is too restrictive.
The proposed page limit is four pages. URCP 7(g)(1). This is not enough room to state “the relief sought and the grounds for relief sought . . . with particularity.” Id. 7(g)(1)(D).
My fear is that the parties will not have enough space to adequately explain binding precedents to the court, and the court will make incorrect decisions.
Parties certainly don’t have to use the maximum amount of pages permitted if they don’t want to. Why restrict it so much?
I am objecting to URCP 058B. I am a court employee and I find that many debtor’s don’t even know what a satisfaction of judgment is, let alone to request one be filed. I am of the opinion that it should stay mandatory that a satisfaction of judgment should be filed by the creditor when the judgment is paid off.
Re: URCP 58A(d) & URAP 4(g) (cross-posted)
1. It appears that the requirement to serve a notice of judgment under URCP 58A(d) only applies to “the party preparing the judgment.” Likewise, URAP 4(g) requires a party seeking to reinstate the period for filing the appeal to show that “the party responsible for serving the judgment did not promptly serve a copy of the signed judgment . . . .” It seems this rule is unclear as to what happens if the Court prepares the judgment itself. Does any party have a responsibility to notify the other parties in such a circumstance? Does the Court have a responsibility to notify the parties of the entry of the judgment? As URAP 4(g)(iii) specifies a “party,” does this mean that relief is unavailable if the court prepared the judgment?
2. When read with URCP 58A(d), URAP 4(g)(iii) seems to require that notice not be served under URCP 5 in order for a party to obtain relief. As service under URCP 5 is not the same as delivery or actual notice, this seems like it may be inconsistent with the intent of URAP 4(g), which otherwise appears to apply an excusable neglect standard. Did the committee intend to restrict the ability of a party to obtain relief under URAP 4(g) if the party preparing the judgment served notice under Rule 5, but the party seeking relief did not receive actual notice and was otherwise reasonably diligent in monitoring the proceedings? Or is it the intent to allow the party preparing the judgment to guarantee that the time limit for appeal cannot be reset regardless of excusable neglect?
3. Both URCP 58A(d) and URAP 4(g)(iii) use the term “promptly serve.” If the intent of URAP 4(g)(iii) is to allow the party preparing the judgment to guarantee that the time limit for appeal cannot be reset, (see paragraph 2), perhaps a specific time such as “7 (or 14) days after entry of judgment” would be better. Notices served after that time would be probative for the purpose of actual notice under URAP 4(g)(i), but would not be an absolute bar.
Day Shell & Liljenquist, L.C.
Re: Rule 64D – GARNISHMENTS – IN MY EXPERIENCE, THOSE WHOSE ASSETS NEED BE GARNISHED TO PAY A JUDGMENT NORMALLY DO NOT HAVE THAT INCOME ALLOWING JUDGMENTS TO BE RETIRED IN EVEN 12 MONTHS WORTH OF GARNISHMENTS. I BELIEVE 3 YEARS WOULD BE MORE PRACTICAL. OTHERWISE, PREPARATION AND FILING OF 3 GARNISHMENTS WOULD BE NECESSARY UNDER THE PROPOSED RULE. THE PROPOSED RULE IS A GOOD STEP FORWARD, BUT IF YOU ARE GOING TO DO IT, A GARNISHMENT LIFE MORE LIKELY TO BE SUFFICIENT TO COMPLETELY RETIRE THE JUDGMENT WOULD BE EVEN BETTER DON’T YOU THINK? ALSO, THE COMMENTATOR BRINGING ATTENTION TO CHANGING JUDGMENT INTEREST HAS A GOOD POINT. PROVISION TO ALLOW INTEREST ALLOWED BY LAW AT THE TIME OF THE GARNISHMENT WOULD SOLVE THE QUESTION.
Style notes re: URCP 7(g)
Line 83: consider replacing “paragraph” with “subdivision.” 
Line 84: consider inserting “Motion” before “length and content” to make it consistent with the header of (g)(2).
Lines 84 & 101: As the amount of space is limited and the court is likely to get motions to strike for violating the length requirements from zealous litigants, it may be wise to specify what sections count against the page limit and what sections do not. For example, the committee may want to include the caption and signature line in the portions that do not count against the page limit.
Lines 87-98 & 103-110: this seems like an odd order—it seems more logical to put the relief requested at the front and the certifications at the end of the motion.
Line 92: the word “and” should be deleted, as the next item is not the last item of the list.
Lines 93-94: As this language exactly tracks the language for motions apart from memoranda, it seems possible that this will create confusion as to whether a statement of facts or supporting authority is allowed. Consider using something like the following two subparagraphs in its place:
– (g)(1)(D) a statement of the precise relief sought;
– (g)(1)(E) a brief recitation of relevant facts, supporting authority, and argument justifying the relief sought;
Line 94: replace the period at the end of the line with a semicolon.
Lines 98 & 110: It seems awkward to insert a prohibition together with a list. Consider moving out of the list and incorporating it into paragraph (g)(1) or just allowing it to dangle after the list. Alternatively, you could separate the attachment requirements from lines 95-98 & 106-110 into a paragraph separate from the content of the motion and response:
– (g)(3) Attachments. Except as required by law, only the following exhibits or other papers may be attached or included with a discovery motion or response:
– (g)(3)(A) Discovery papers. The moving party shall attach to its motion a copy of the request for discovery, the disclosure, or response at issue. A party opposing the motion may attach to its response a copy of the request for discovery, the disclosure, or the response at issue if it is needed and was not attached by the moving party.
– (g)(3)(B) Proposed order. Each party shall submit a proposed order consistent with its position on the motion to the court concurrently with the filing of its motion or response.
Line 99: As the “days are days” approach has not been incorporated into the Rules yet, consider replacing “7” with “5.”
Lines 99-108: This list seems unnecessary and perhaps confusing—consider using the language in UCJA 4-502(2)(C) and just require the opposition to “briefly address pertinent issues raised in the [motion].”
Lines 106-108: this language seems out of place as the opposition has not sought relief.
Lines 113-117: This wording just seems a bit awkward: consider revising to something like the following after the words “paragraph (i)”:
– (g)(3) . . . Upon receiving a request to submit for decision, the court shall promptly:
– (g)(3)(A) decide the motion on the pleadings and papers submitted by the parties;
– (g)(3)(B) schedule a hearing or telephone conference; or
– (g)(3)(C) order additional briefing and establish a briefing schedule.
Line 113: The reference to “paragraph (i)” appears to be a typographical error; consider revising to “subdivision (d)”
Day Shell & Liljenquist, L.C.
 Bryan A. Garner, Guidelines for Drafting and Editing Court Rules § 3.2(A) (5th ed. 2007) (indicating that divisions set off with lowercase letters should be referred to as subdivisions).
I agree with the changes to the garnishment rule (R 58B) making garnishments effective for 1 year and the expedited discovery rule added to Rule 7 — effectively converting and amending the Statement of Discovery Issues CJA rule to a URCP rule.
The time for responding to a discovery motion should be identified as calendar days or court days. As is, looks like 7 court days, which makes little sense and, if not served by hand, means two weeks in practice.
A specification of the number of words for the argument section of a discovery motion may be more effective than a page limit, especially as the proposal provides for a response that is effectively longer than the moving papers. It is unclear how a dispute about 6 or more items could be done within the page limits and still give the Judge fair notice of the nature of the dispute and party positions.
We support the extension of time for a garnishment. We believe this will cut down on the costs of collection for all parties, as well as reduce the work load for the court in issuing writs of garnishment. We would also support a garnishment length of 3 years or until the debt is paid in full.
We also agree that it would be helpful to address the accrual of interest while the garnishment is in place. This could be done by adding an additional subsection to (l) Writ of Continuing Garnishment that states, “A writ of continuing garnishment includes collection of interest as allowed by law that accrues after the initial service of the writ without obtaining a separate writ.”