USA v. Janet L. Arborio (2011)

MEMORANDUM OF DECISION ON CLAIM FOR EXEMPTION

On November 8, 2010, the plaintiff obtained a judgment of $12,846.46 plus costs against the defendant Janet Arborio, with an installment payment order of $35.00 per week commencing Monday, December 6, 2010.   The defendant made the first six weeks of payments on time, through the week ending Sunday, January 16, 2011.   Then for two consecutive weeks, the defendant mailed no payments to the attorney for the plaintiff.

On January 27, 2011, the plaintiff signed an Application for Financial Institution Execution and filed it with the court.   The clerk's office received the application on February 7, 2011, and sent an execution to the plaintiff on February 10, 2011.   The plaintiff caused the execution to be served on Webster Bank, where the defendant had two bank accounts, containing funds totaling $4,266.11.

Webster Bank complied with the provisions of the financial institution execution statute—Conn.  Gen.Stat. § 52–367b—in freezing the accounts, notifying the debtor, and providing her with the forms necessary to claim an exemption from execution.   The defendant has timely filed her Exemption Claim Form, and the court conducted an evidentiary hearing on March 21, 2011.

The defendant's exemption claim is not based on the nature of the funds in her accounts, but rather is based on the theory that 1) she did not violate the installment payment order, so that no execution should have issued, and 2) the exclusive remedy for a failure to comply with an installment payment order is the issuance of a wage execution pursuant to Conn. Gen.Stat. § 52–361a.

The court finds that the defendant did not comply with the installment payment order, in that she missed making timely payments for the week of January 17 and January 24, 2011.   The evidence discloses that after making payments for the weeks through January 16, the next check she mailed was on January 31, and by that time the plaintiff was missing two weeks of payments and had applied for the execution.   The defendant was not in compliance with the installment payment order and the execution was properly issued.

As for the claim that an application for a wage execution is the exclusive remedy for such noncompliance, the court is not persuaded.   The defendant relies heavily on Conn. Gen.Stat. § 52–356d(d) which provides:

An installment payment order shall not be enforced by contempt proceedings, but on the judgment debtor's default on payments thereon, the judgment creditor may apply for a wage execution pursuant to Conn. Gen.Stat. § 52–361a.

To be sure, a wage execution is one remedy that a plaintiff may elect.   And an installment payment order is a prerequisite to the issuance of a wage execution.   See Conn. Gen.Stat. § 52–361a(a).   But nowhere in the installment payment statute—Conn.  Gen.Stat. § 52–356d—or in the wage execution statute is there support for the proposition that a wage execution is the plaintiff's exclusive remedy.

Indeed elsewhere in the installment payment statute there is language that leads to the opposite conclusion.  Conn. Gen.Stat. § 52–356d(b) provides that in the case of a consumer judgment (such as the judgment here, arising out of a credit card debt), “a court may provide that compliance with the installment payment order ․ shall stay any property execution or foreclosure pursuant to that judgment ․” There would be no need to add such language authorizing the court to impose a stay of further kinds of post-judgment collection efforts if the plaintiff were not entitled to use these other post-judgment remedies in the first place.

And if a wage execution were the exclusive remedy, what of the defendant who has no wages?   It defies reason to suggest that the statutory scheme prevents a judgment creditor from seeking an execution on a non-wage-earning debtor's property or bank accounts in the event of noncompliance with an installment payment order simply because the debtor does not receive a wage.

In construing the three sets of statutes at issue—the installment payment statute, the wage execution statute, and the financial execution statute—the court has a duty not to read them in isolation from one another but rather to read them in harmony with one another.   See Nizzardo v. State Traffic Commission, 259 Conn. 131, 157, 788 A.2d 1158 (2002).   The scheme set forth in these statutes allows the plaintiff to choose an application for a wage execution as one type of post-judgment enforcement mechanism in the event of non-compliance with an installment payment order, but a plaintiff is not compelled to choose that as a first option.

Unless there is a stay imposed pursuant to Conn. Gen.Stat. § 52–356d(b), a plaintiff may use a financial institution execution to execute on the judgment debtor's property, without first electing to apply for a wage execution.

The defendant's Claim for Exemption from Execution is disallowed, and her motion is denied.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.