TCAP CORP. v. Gervin

185 P.3d 589
CourtWashington Supreme Court
DecidedJune 5, 2008
Docket81005-2
StatusPublished
Cited by7 cases

This text of 185 P.3d 589 (TCAP CORP. v. Gervin) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TCAP CORP. v. Gervin, 185 P.3d 589 (Wash. 2008).

Opinion

185 P.3d 589 (2008)

TCAP CORPORATION, f/k/a Transamerican Capital Corporation and Cadles of Grassy Meadows II, Respondents,
v.
George GERVIN and Joyce Gervin, Appellants,
401 Group, a Washington limited partnership, an interested party.

No. 81005-2.

Supreme Court of Washington, En Banc.

Argued March 11, 2008.
Decided June 5, 2008.

*590 Michael Bradley Gillett, Gillett Law Firm, Seattle, for Appellants.

Christopher Eller Allen, Morton McGoldrick PS, Tacoma, Joanne Henry, Sloan Bobrick & Kesling, University Place, for Respondents.

Robert G. Sieh, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Seattle, Amicus Curiae, for 401 Group.

SANDERS, J.

¶ 1 In 2006 and 2007 TCAP Corporation, f/k/a Transamerican Capital Corporation (TCAP), the plaintiff-creditor, sought and was granted two different writs of execution in an attempt to collect an outstanding judgment entered against George Gervin, the defendant-debtor. These writs ordered the sheriff to seize and sell Gervin's entire limited partnership interest in the 401 Group in an execution sale. This case requires us to determine whether the registered foreign judgment was enforceable even though the Texas judgment upon which it was based had expired.

¶ 2 We hold a registered foreign judgment in Washington expires, and therefore becomes unenforceable, under RCW 6.17.020(7)[1] when the underlying foreign *591 judgment expires. Accordingly, we hold the writs of execution were issued on an expired judgment and are therefore invalid. We reverse the trial court and quash the outstanding writs of execution.[2]

FACTS AND PROCEDURAL HISTORY

¶ 3 This case involves a procedural history so extensive even the barristers of Bleak House would blush.[3] This case begins 24 years ago when the defendant-debtor, George Gervin, signed a $250,000 promissory note for the benefit of Summit Savings Association in exchange for promised securities from the bank's president. Gervin never received the securities, however, and the bank's president was successfully prosecuted for this fraud. Notwithstanding this fraud Gervin remained responsible for repayment of the loans. This outstanding debt was reduced to judgment in Collin County, Texas, on February 27, 1989. The intervening 19 years have been marked by extensive litigation in Texas and Washington at the state and federal levels.

¶ 4 Plaintiff-creditor TCAP Corporation[4] registered the foreign judgment in the Pierce County Superior Court clerk's office on October 17, 1996 as required by RCW 6.36.025.[5] That year the Pierce County Superior Court entered an "Order Charging Partnership Interest." Clerk's Papers (CP) at 4-5. This order stated, "the managing partner of 401 Group . . . shall pay all of defendant George Gervin's share of the distributions of income and all other amounts coming due to defendant George Gervin, to the plaintiff. . . ."[6] CP at 5. This charging order remained in effect throughout the events of this case but failed to produce income sufficient to satisfy the outstanding judgment.

¶ 5 In 1997 Gervin filed for relief under chapters 7 and 13 of the United States Bankruptcy Code. In 1998 the bankruptcy court entered an order determining Gervin's outstanding IRS (Internal Revenue Service) liens had priority over the TCAP judgment, and both the IRS liens and the TCAP judgment survived the bankruptcy action. In 2000 the IRS filed a motion requesting disbursement of the funds accumulated by the partnership. The motion was granted and the funds disbursed. This satisfied the IRS liens, leaving the registered foreign judgment as the only outstanding judgment.

¶ 6 In 2001 the Texas judgment against Gervin, which served as the basis of the registered foreign judgment, expired and could not be revived. Although this fact determines the issue before us, the parties continued litigating attempts to execute on the debt.

¶ 7 In 2004, three years after the Texas judgment expired, Gervin's wife filed an adversary complaint in federal bankruptcy court for the Western District of Texas. The bankruptcy court enjoined TCAP from executing *592 against Gervin's interest in the 401 Group on several occasions for periods of months over the next several years.

¶ 8 Also in 2004 the Pierce County Superior Court entered an "Order Directing Sale of Partnership Interest" on TCAP's motion. This order directed the issuance of a "Writ of Execution" to the Pierce County Sheriff's Department to sell Gervin's interest in the 401 Group.

¶ 9 In 2006, two years after the Pierce County order and five years after the underlying judgment expired, TCAP filed a writ of execution ordering the Pierce County Sheriff's Department to execute on Gervin's entire limited partnership interest in the 401 Group. The day before the execution sale a federal judge in Texas enjoined the sale for 45 days. The registered foreign judgment celebrated its 10-year anniversary during this stay.[7]

¶ 10 Gervin filed a motion to quash the writ of execution, claiming the writ purported to sell an interest that could not be executed upon, and the 10-year Washington judgment lifetime expired. Pierce County Superior Court denied this motion, holding the writ complied with the provisions of the Washington Limited Partnership Act, chapter 25.10 RCW, and the judgment lifetime could be equitably tolled under Hensen v. Peter, 95 Wash. 628, 164 P. 512 (1917). That same day Gervin filed his notice of appeal, challenging the denial of the motion to quash the writ of execution, and moved the Court of Appeals to stay execution until the appeal was resolved.

¶ 11 Over the next several months state and federal courts enjoined TCAP from enforcing the writ against Gervin. The injunctions were not continuous, however, leaving periods of time during which TCAP could attempt to enforce the writ. Eventually, the writ was returned unfulfilled, but the trial court issued a new writ of execution. Gervin moved to quash that writ on the same grounds as the previous writ. The trial court denied Gervin's motion again and Gervin appealed.

¶ 12 The Court of Appeals consolidated Gervin's appeals. Pursuant to RAP 4.4[8] the case was transferred from the Court of Appeals before determination, and we directly review the trial court decision.

STANDARD OF REVIEW

¶ 13 Statutory construction is a question of law and is reviewed de novo. Qwest Corp. v. City of Bellevue, 161 Wash.2d 353, 358, 166 P.3d 667 (2007).

ANALYSIS

¶ 14 Judgments and their enforcement are governed by statute in Washington. See Hutton v. State, 25 Wash.2d 402, 407, 171 P.2d 248 (1946). Under the Uniform Enforcement of Foreign Judgments Act, chapter 6.36 RCW, creditors holding a judgment against a debtor from another jurisdiction can enforce that judgment in Washington. RCW 6.36.025. Once the foreign judgment is filed with the clerk's office of a superior court, or alternatively a district court, in this state, it becomes a registered foreign judgment.

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Bluebook (online)
185 P.3d 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tcap-corp-v-gervin-wash-2008.