Brief ⁽¹⁾

House Sub. for SB 504 would enact the new Code of Civil Procedure for Limited Actions which makes several changes to the current law. Major provisions of the bill are as follows.

• Jurisdictional Limits. The jurisdictional limits under Chapter 61 will be raised from the current $10,000 to $25,000 for tort cases and secured claims. There is no dollar limit on unsecured contract claims which remains unchanged from current law.



• Electronic Filing. Courts may chose to accept cases for filing under an electronic filing procedure or the traditional method or a combination of either method.



• Court Location. Courts will be allowed to conduct court business in locations other than a traditional courtroom or courthouse.



• Pleadings and Other Papers. The only required pleadings would be a petition which must be signed by the plaintiff. Provisions governing an answer by the defendant are outlined in the bill. A new provision would require the Kansas Supreme Court to determine, by rule, the content and form of all pleadings and other papers filed.



• Service of Court Papers. Service of certain required documents would be allowed by: personal service; first class mail, certified mail, or registered mail; or leaving a copy with the clerk of the court, if no address is known.



• Service of Process. In-state service of process would be made: by the sheriff of the county in which the action is filed unless a party elects to undertake responsibility for service and notifies the clerk; return receipt delivery which can include service by certified mail, priority mail, commercial courier service, overnight delivery service, or other reliable personal delivery service; and personal and residence service.



• Garnishment Process. Service of a garnishment process could be made by:

• First class mail. The return will show the nature of the process, the date the process was mailed, and the name and address on the envelope containing the process.



• Telefacsimile Communication. The return will show the nature of the process, the time and date of the transmittal, the telephone number of the transmitting machine, and the telephone number of the receiving machine.



• Internet Electronic Mail. The return will show the nature of the process, the time and date of the transmittal, the Internet address of the transmitting person, and the Internet address of the receiving person.





• Pretrial Procedure. The bill allows for a pretrial hearing to clarify the issues for trial and explore the possibilities of settlement. Current law has no such provision.



• Default Judgement. The bill clarifies and consolidates current law regarding when a default judgment may be taken and when a default judgment may be set aside.



• Master Journal Entry. Judgements could be entered by a single journal entry or by a master journal entry or judgement covering several cases.

• Bank Garnishment. Within 10 days of service upon a garnishee, the garnishee will complete the answer and send it to the clerk of the court. The clerk will send a copy of the answer to the judgment creditor. The bank then makes payment directly to the judgement creditor. The percentage of a bank account that can be tied up is reduced from 150 percent (current law) of the judgement balance to 110 percent.



• Wage Garnishment. Within 15 days of the end of each month, the garnishee will complete the answer and send the answer to the clerk of the court who will mail a copy of the answer to each judgment creditor. The garnishee will send payments to the court who will, in turn, send the required payments to the judgment creditors. Wage garnishments would be continuing and remain in effect until the judgement is paid or the garnishment is released, whichever is sooner. Upon satisfaction of the judgement, the party for whom the garnishment is issued shall file a release with the clerk of the court and provide a copy to the defendant and garnishee.



• Real Property. The provisions regarding executions and orders of sale upon real property would be prohibited under the Code of Civil Procedure for Limited Actions.



• Garnishment Remedies. Upon nonpayment of funds or property held under garnishment, the court could find a garnishee in contempt and punish the garnishee by a fine or imprisonment or both or may enter judgement against the garnishee for amounts deemed reasonable and proper including expenses and attorney fees of the judgement creditor. Failure to appear in response to an order for a hearing in aid of execution will result in a contempt citation.



• Replevin and Foreclosure of Security Interests. Changes in these provisions are designed to create more useful statutes and to change legal phrases to plain English. Few substantive changes are contained in these sections. The most substantive change is changing the bond amount from the amount of plaintiff's claim to double the fair market of the property in dispute.

The effective date is delayed until January 1, 2001.

The House Committee of the Whole amendments inserted the clerk of the court involvement provisions; inserted the measures regarding the return after service of process; and inserted the prohibitions regarding real estate under the Code of Civil Procedure for Limited Actions, among other things. In addition, the House Committee of the Whole added the delayed effective date.

Background

Recodification of Chapter 61, Civil Procedure for Limited Actions, provisions were originally contained in 2000 HB 2697. Those who appeared in support of HB 2697 included conferees representing the Kansas Judicial Council, the Kansas Collectors Association, and Kansas Credit Attorneys Association, the Kansas Sheriffs Association, and a Shawnee County District Court Judge. Opposition to HB 2697 was expressed on behalf of the Kansas Bankers Association, the Heartland Community Bankers Association, and the Kansas Land and Title Association.

The fiscal note indicates no fiscal impact on state operations.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html