Rule 64B Contest of claim of exemption -- Garnishment of money, choses in action or personal property.

Committee Comments on 1985 Adoption

The decision in Green v. Harbin, Civil Action No. 82-C-5598-NE, pending in the United States District Court for the Northern District of Alabama, as of the time of this committee’s proposal regarding this rule was submitted to the Supreme Court makes it necessary to modify the timetable governing a contest of a claim of exemption. The requirements of the Alabama Rules of Civil Procedure generally apply to such proceedings. See Rule 81(a)(3), Alabama Rules of Civil Procedure. Therefore, for example, the provisions of Rule 5 for service of a copy of pleadings filed with the Court on all parties and proof of such service by a certificate of service are applicable and afford a mechanism through which the plaintiff will receive notice of the defendant’s claim of exemption and the court file will reflect the fact of service on the plaintiff. The plaintiff is required to institute a contest of the claim within ten (10) days after notice of the claim. Section 6-10-26, Code of Alabama (1975). Where notice of the defendant’s claim of exemption is served on plaintiff by mail, plaintiff is entitled to three (3) additional days in which to institute a contest. Rule 6(e). The time period of fifteen (15) days for dissolution or modification is considered adequate to cover the ten (10) day time period plus time that might elapse through service by mail.

Committee Comments to October 1, 1995, Amendment to Rule 64B

The amendment is technical. No substantive change is intended.

Committee Comments to Amendment to Rule 64B Effective May 6, 2015

This amendment deletes what was the last sentence of Rule 64B, which read: "Notice of the garnishment must be in writing and may be given by the plaintiff or garnishee, but must be served by the sheriff contemporaneously with the service of process of garnishment on the garnishee." The requirement of service of notice of garnishment by the sheriff made it difficult to implement electronic filing of garnishments. The sentence was out of place in Rule 64B, which pertains to claiming exemptions, so its deletion does not leave a void. Service of notice of garnishment is covered elsewhere: When the defendant has not appeared, Rule 64A provides for service; when the defendant has appeared, Rule 5 provides for service.

District Court Committee Comments

The addition of subparagraph (dc) confirms, in compliance with Rule 1(a), Ala. R. Civ. P., that this rule is applicable in the district courts.

Note from the reporter of decisions: The order amending Rule 64A and Rule 64B, Alabama Rules of Civil Procedure, effective October 1, 2010, and adopting the Committee Comments to Amendment to Rule 64A Effective October 1, 2010, the District Court Committee Comments to Rule 64A, and the District Court Committee Comments to Rule 64B is published in that volume of Alabama Reporter that contains Alabama cases from 40 So. 3d. Note from the reporter of decisions: The order amending Rule 64B, effective May 6, 2015, and adopting the Committee Comments to Amendment to Rule 64B Effective May 6, 2015, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.