Amayo v MJ Company [2001] FMSC 37; 10 FSM Intrm. 433 (Pon. 2001) (19 October 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Amayo v. MJ Co.,
[2001] FMSC 37; 10 FSM Intrm. 433 (Pon. 2001)

[2001] FMSC 37; [10 FSM Intrm. 433]

ALFREDO AMAYO, and ELSA AMAYO, individually,
and as next friends of ALFIE AMAYO, APRIL
AMAYO, and JILLEEN AMAYO,
Plaintiffs,

vs.

MJ COMPANY, RON PANGELINAN and IOANIS
PANUELO dba IP ENTERPRISES,
Defendants.

CIVIL ACTION NO. 1999-091

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: October 19, 2001

APPEARANCES:

For the Plaintiffs:
Daniel J. Berman, Esq.
P.O. Box 1491
Kolonia, Pohnpei FM 96941

For the Defendant:
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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HEADNOTES

Appeal and Certiorari ; Stay
When a supersedeas bond from a qualified surety is presented to the court, the appropriate vetting and assessment of financial information by a competent surety will have taken place, thus obviating the need for a court to engage in that process. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 434 (Pon. 2001).

Appeal and Certiorari ; Stay; Attachment and Execution
In the absence of a supersedeas bond, a judgment creditor generally has, within specified statutory limits, a right to a writ of execution upon entry of judgment. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 434 (Pon. 2001).

Appeal and Certiorari ; Stay
When no stay has been ordered in a pending appeal, alien judgment-creditors may suggest,

[10 FSM Intrm. 434]

although no rule or other authority requires this, that any sums resulting from a levy on the judgment be deposited with the court in an interest bearing account, and the court, aware of the creditors' great financial distress resulting from the injury sued upon may order a portion of the money deposited to be paid over to plaintiffs' counsel. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 435 (Pon. 2001).

Attachment and Execution
A writ of garnishment is the equivalent of a writ of execution in terms of the end sought, which is satisfaction of the judgment. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 435 (Pon. 2001).

Courts; Remedies
Where a remedy exists, the FSM Supreme Court has general power under the Judiciary Act of 1979 to effect that remedy. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 435 (Pon. 2001).

Attachment and Execution
In the event that judgment creditors wish to execute on any bank accounts or other debts owed to the judgment debtor, they should present the court with a form of writ of garnishment directed to the garnishee debt-holder, which will specify that 1) upon receipt of the writ, the garnishee will freeze payment of all accounts, debts, or other money owed to the judgment debtor pending further order of court; and 2) that within three days of the writ's service, the garnishee will file with the court a response showing what debts it owes to the judgment debtor. Upon review of the response, the court will then issue a turnover order if appropriate, after determining any competing claims that the garnishee may have to those accounts. Amayo v. MJ Co., [2001] FMSC 37; 10 FSM Intrm. 433, 435-36 (Pon. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

The court has received the parties' comments in response to the court's order of October 11, 2001.

a. The supersedeas bond

Having carefully considered the concerns and comments expressed by both parties in response to the order, the court concludes that the proposed mortgage would not provide "absolute security" pending appeal for the judgment creditors. Neither would it provide a lesser degree of security that would be "acceptable" in the sense discussed in the order and memorandum of October 11, 2001, at 4. Amayo v. MJ Co., [2001] FMSC 36; 10 FSM Intrm. 427, 429 (Pon. 2001). Specifically, the court sees wisdom in plaintiffs' contentions that difficulties arise when a court, whose expertise is presumably legal and not financial, attempts to assess financial data, at least without the benefit of input on the specific questions presented from a qualified financial expert or experts. Implicit in Rule 62 of the FSM Rules of Civil Procedure is that where a supersedeas bond from a qualified surety is presented to the court, the appropriate vetting and assessment of financial information by a competent surety will have taken place, thus obviating the need for a court to engage in that process. A second valid point, if self-evident, is that in the absence of a supersedeas bond, a judgment creditor generally has, within specified statutory limits, a right to a writ of execution upon entry of judgment. "Every court, at the request of the party recovering any civil judgment in that court for the payment of money, shall issue a writ of execution against the personal property of the party against whom the judgment has been rendered, except as provided in section 1415 of this chapter." 6 F.S.M.C. 1407 (emphasis added).

[10 FSM Intrm. 435]

Today is Friday, October 19, 2001. Panuelo will have ten days starting from Monday, October 22, 2001, to obtain a supersedeas bond under Rule 62 of the FSM Rules of Civil Procedure. The tenth day will be Thursday, November 1, 2001. In the event that no supersedeas bond is tendered to the court by the close of business on that day, a writ of execution or garnishment, as the case may be, shall issue.

Plaintiffs, who acknowledge that they are aliens and in order to address concerns about recapture of any amounts paid to them in the event Panuelo prevails on appeal, suggest that any sums resulting from levy should be deposited in an interest bearing account with the court pending appeal. The court concludes that this suggestion is a good one, although no rule or other authority of which the court is aware requires this. But plaintiffs also point to their great financial distress resulting from the plaintiff's paralysis, which is the injury sued upon. To balance these competing concerns, the court hereby orders ninety percent (90%) of any amounts realized from levy that total $100,000 or less be deposited in an interest bearing account with the clerk of court in Pohnpei. The remaining 10% will be turned over to plaintiffs' counsel. Of any accruing total exceeding $100,000, ninety-five percent (95%) will be deposited with the clerk of the court, and five percent will be turned over to plaintiff's counsel.

b. The writ

Puzzlement exists about the fact that in response to part VII of this court's order and memorandum of September 19, 2001, plaintiffs submitted a form of writ that is substantially the same as the form of writ previously tendered. This may have resulted from the court's failure to specify the defect in the writs. The forms of writ previously submitted specify bank accounts. Reading 6 F.S.M.C. 1407 in the context of the next section of the statute, § 1408, it is mhan open to quto question that § 1408 applies to bank accoufts of the judgment debtor. The procedure set out in §;1408 mandates the sale of the property levied upon at a public auction to the highest bidd bidder. Subjecting bank accounts to a pubction is not a meaningful eful exercise. This is all the more the case because FSM case law establishes that garnishment, the procedure intended for execution upon a debt owed to the judgment debtor exists in the FSM. Bank of Guam v. Elwise, [1988] FMSC 2; 4 FSM Intrm. 150, 152 (Pon. 1989); see also BLACK'S LAW DICTIONARY 680 (6th ed. 1990) (defining "garnishment" as "[a] proceeding whereby a plaintiff creditor, i.e., garnishor, seeks to subject to his or her claim the property or money of a third party, i.e., garnishee, owed by such party to defendant debtor, i.e., principal defendant.") A writ of garnishment is the equivalent of a writ of execution in terms of the end sought, which is satisfaction of the judgment. It is, however, the logical procedure to be followed when executing upon a judgment debtor's bank account or other property held by a third person.

Problematic is the fact that although garnishment plainly exists in the FSM, no procedures are to the court's knowledge specified by statute or rule. However, where a remedy exists, this court has general power under the Judiciary Act of 1979, 4 F.S.M.C. 101 et seq., to effect that remedy. Section 117 of 4 F.S.M.C. provides that the court "shall have power to issue all writs . . . as may be sary for the duhe due administration of justice."

Accordingly, in the event the plaintiffs wish to execute on any bank accounts or other debts owed to Panuelo, they should present to the court for issuance a form of writ of garnishment directed to the garnishee debt-holder. The writ shall specify that 1) upon receipt of the writ, the garnishee will freeze payment of all accounts, debts, or other money owed to the judgment debtor pending further order of court; and 2) that the garnishee will file with the court within three days of service of the writ a response showing what debts it owes to the judgment debtor. Upon review of the response to the writ, the court will then issue a turnover order if appropriate.

[2001] FMSC 38; [10 FSM Intrm. 436]

There was testimony at the trial in this case that certain of Panuelo's bank accounts serve as collateral for loans. If a garnishee makes a claim to those accounts, a determination of the competing claims to the accounts is a predicate to a turnover order.

To recap, in the event that a supersedeas bond is not filed with the court by the close of business on November 1, 2001, either a writ of execution and/or a writ of garnishment, provided that they are in the form specified in this order, shall issue.

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