When a Tennessee sheriff levies on a debtor's bank account to satisfy a judgment, is the $40 levy-of-execution fee allowed instead of the $20 collection-of-money fee?

Plain-English summary

This is the companion opinion to AG Opinion 17-47, issued the same day in response to a similar request from Representative Raumesh Akbari. The legal analysis is identical: when a Tennessee sheriff serves a levy of execution on funds held in a bank account to satisfy a judgment, the proper fee is the $40 "levy of execution on property" fee under Tenn. Code Ann. § 8-21-901(a)(2)(A), not the $20 "collecting money to satisfy a judgment" fee under subsection (B)(i).

The reasoning rests on three points. First, deposited funds are property of the judgment debtor that can be reached by execution. Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437, 443 (Tenn. Ct. App. 1994); Tenn. Code Ann. § 26-1-103. Second, the specific provision controls the general one when both literally apply. State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005). Subsection (A) is specific to "a levy of an execution"; subsection (B) is the broader catch-all for collection attempts. Third, the $20 fee in (B) still has work to do: it applies to collection attempts that are not properly characterized as a levy of execution, such as a stand-alone garnishment.

The AG noted in footnote 2 a practical wrinkle. Under traditional property law, money deposited into a general bank account becomes a chose in action against the bank rather than property the depositor still holds. So whether $40 or $20 applies in a given case may turn on whether the sheriff's process is properly a levy of execution on the funds (the debtor's property) or a garnishment served on the bank.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tenn. Code Ann. § 8-21-901(a)(2). Two competing fee provisions for sheriff activity related to judgments on money and property.

• (A): $40 "[f]or a levy of an execution on property or levy of an attachment or other process to seize property for the purpose of securing satisfaction of a judgment yet to be rendered or for executing a writ of replevin or writ of possession."
• (B)(i): $20 "[f]or collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process, in civil cases each time collection is attempted."

What is a levy of execution. Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437, 443 (Tenn. Ct. App. 1994): "The officer's act of appropriating or singling-out the debtor's property for the satisfaction of a debt." Under Tenn. R. Civ. P. 69, a levy is effective "when a sheriff with a writ of execution exercises control over the judgment debtor's personalty."

Money judgments enforced by execution. Tenn. Code Ann. § 26-1-103 expressly provides that "[a]ll judgments and decrees of any of the judicial tribunals of this state for money may be enforced by execution." 30 Am. Jur. 2d Executions § 128 (2017): "A writ of execution may be exercised upon any legal or equitable interest possessed by the judgment debtor in any type of property."

Specific controls general. State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005): "[S]pecific statutory language will control over general statutory language." Both fee provisions could literally apply to an execution levy on bank funds, but subsection (A) is specifically about a levy of execution, while subsection (B) is the general catch-all for collection.

Funds on deposit as a chose in action. The footnote-2 caveat: under property law, "funds on deposit . . . are no longer the personal property of the depositor; instead the depositor has a chose in action against the bank for recovery of the deposit." Johnson v. Serv. Mgmt., 459 S.E.2d 900, 902 (S.C. 1995). The traditional rule is that bank-deposit funds are reached through garnishment or supplemental proceedings rather than direct execution levy, so in practice the choice between the $40 and $20 fee depends on which process the sheriff actually uses.

Common questions

Q: My company has a Tennessee money judgment. We told the sheriff to levy on the debtor's bank account. The sheriff billed $40. Is that correct?
A: According to this opinion, $40 is the correct fee if the sheriff's process is properly characterized as a levy of execution on the funds. The opinion treats deposited funds as the debtor's property reachable by execution.

Q: When does the $20 fee apply instead?
A: When the collection process used is not properly a levy of execution. Pure garnishment of a third party (such as a bank), without an underlying execution levy, falls into subsection (B)(i).

Q: Are funds in a bank account actually "property" of the debtor?
A: Property law treats the depositor's interest as a chose in action against the bank, not as the deposited cash itself. The AG read § 8-21-901(a)(2)(A) broadly enough to cover a sheriff's levy on those funds when the process is a true execution levy, but the opinion's footnote 2 flags that supplemental proceedings or garnishment may be the technically appropriate process in many cases.

Q: Why are opinions 17-47 and 17-48 separate?
A: Two state representatives, Karen D. Camper and Raumesh Akbari, asked the same question. The AG issued separate opinions to each on the same date with identical analysis.

Q: Where does the specific-controls-general canon come from?
A: State v. Davis, 173 S.W.3d 411 (Tenn. 2005), is the recent Tennessee Supreme Court statement of the canon. It is a long-standing rule of statutory construction in Tennessee and elsewhere.

Citations and references

Statutes and rules:

• Tenn. Code Ann. § 8-21-901(a)(2)(A), (B)(i)
• Tenn. Code Ann. § 26-1-103
• Tenn. R. Civ. P. 69

Cases:

• State v. Davis, 173 S.W.3d 411 (Tenn. 2005)
• Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437 (Tenn. Ct. App. 1994)
• Johnson v. Serv. Mgmt., 459 S.E.2d 900 (S.C. 1995)

Companion AG opinion:

• Tenn. Op. Att'y Gen. 17-47 (October 31, 2017) (same question, different requester)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-048.pdf

Original opinion text

Determining the Fees to which a Sheriff is Entitled for a Levy of Execution

Question

Tennessee Code Annotated § 8-21-901(a)(2) establishes the fees to which a sheriff is entitled for executing particular types of processes on money and property. May a sheriff charge the $40 fee provided for a levy of execution on property when the sheriff serves a levy of execution on funds held in a bank account?

Opinion

Yes.

ANALYSIS

Tennessee Code Annotated § 8-21-901 sets out the various fees to which a sheriff is entitled for the performance of particular functions. Several provisions of § 8-21-901 address the fees to which a sheriff is entitled for collecting money or seizing property to satisfy a judgment. Specifically, § 8-21-901(a)(2) provides:

(A) For a levy of an execution on property or levy of an attachment or other process to seize property for the purpose of securing satisfaction of a judgment yet to be rendered or for executing a writ of replevin or writ of possession $ 40.00

(B)(i) For collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process, in civil cases each time collection is attempted $ 20.00

When a sheriff serves a levy of execution on money belonging to an individual, including funds held in a bank, his actions fall within the plain meaning of paragraph (A). A levy of execution on specific funds belonging to an individual is a levy of execution on "property." See Tenn. Code Ann. § 26-1-103 ("All judgments and decrees of any of the judicial tribunals of this state for money may be enforced by execution."); 30 AM. JUR. 2D Executions and Enforcement of Judgments § 128 (2017) ("A writ of execution may be exercised upon any legal or equitable interest possessed by the judgment debtor in any type of property[.]"). Accordingly, as long as the levy is properly characterized as the "levy of an execution" within the meaning of § 8-21-901(a)(2)(A), a sheriff may charge a $40 fee for providing this service.

Under paragraph (B) of § 8-21-901(a)(2), a sheriff is entitled to a $20 fee for each "attempt[]" to "collect[] money to satisfy a judgment." A levy of execution that a sheriff uses to collect funds to satisfy a judgment would also appear to fit within the more general language of paragraph (B). But paragraph (A) is a specific statutory provision governing the appropriate fee "[f]or a levy of an execution," and, as such, controls the more general provision of paragraph (B). See State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005) ("[S]pecific statutory language will control over general statutory language."). Paragraph (A) thus provides the appropriate fee for a levy of execution: $40. And Paragraph (B) provides for a $20 fee for other attempts to collect money to satisfy a judgment that are not properly characterized as a levy of execution, including garnishment and other processes employed by a sheriff in addition to or instead of a levy of execution.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Raumesh Akbari
State Representative
35 Legislative Plaza
Nashville, TN 37243

¹ A "levy of execution is the officer's act of appropriating or singling-out the debtor's property for the satisfaction of a debt." Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437, 443 (Tenn. Ct. App. 1994); see also 30 AM. JUR. 2D § 167 (2017).

² Typically, "money deposited by a judgment debtor into a general account cannot be reached through execution and levy but only through supplemental proceedings." 30 AM. JUR. 2D Executions and Enforcement of Judgments § 129 (2017). That is because "funds on deposit . . . are no longer the personal property of the depositor; instead the depositor has a chose in action against the bank for recovery of the deposit." Johnson v. Serv. Mgmt., 459 S.E.2d 900, 902 (S.C. 1995).