When a Virginia sheriff serves a debtor interrogatories summons or garnishment summons under a writ of fieri facias, must the sheriff also levy on the debtor's tangible property at the same time, and what fees apply?

Plain-English summary

After getting a money judgment, a Virginia judgment creditor's primary collection tool is a writ of fieri facias (fi. fa.). The writ authorizes the sheriff to levy on (seize) the debtor's tangible personal property to satisfy the judgment. The fi. fa. also creates a lien on the debtor's intangible property (bank accounts, debts owed to the debtor) as soon as the writ is delivered to the sheriff.

But not every fi. fa. collection action ends in a physical levy. Creditors often follow up with two other tools:

• Debtor interrogatories. A summons calling the debtor into court to answer questions under oath about what assets they have, so the creditor can decide what to go after.
• Garnishment. A separate civil action against a third party who is believed to hold money or property that the debtor is entitled to (employer for wages, bank for accounts, etc.).

The Sheriff of Amherst County asked whether, when he served an interrogatories or garnishment summons on a debtor or garnishee, he was required to also levy on the debtor's tangible property at the same time. And he asked what fees applied.

The AG answered: no levy is required when serving interrogatories or garnishment summonses, because those are distinct proceedings from the fi. fa. itself.

Fi. fa. authorizes a levy and the sheriff is "commanded to make the money therein mentioned out of the goods and chattels" of the debtor. The sheriff must return the writ with notation about whether a levy occurred (§ 8.01-483). But Virginia law has long contemplated that levying is a distinct step (Walker v. Commonwealth, 59 Va. (18 Gratt.) 13 (1867)) and that not every fi. fa. results in a levy (Rowe v. Hardy, 97 Va. 674 (1899)). The decision whether to direct a levy belongs to the creditor.

Garnishment is a separate civil action, not a process of execution (Levine's Loan Office, Inc. v. Starke, 140 Va. 712 (1924)). It depends on the existence of a fi. fa. lien but doesn't itself require a new levy. The garnishment summons is "notice of the lien" (In re Lamm, 47 B.R. 364 (Bankr. E.D. Va. 1984)).

Interrogatories are a discovery mechanism to identify what property the debtor has. By design they happen before the creditor decides whether to proceed by levy or by garnishment. The Code expressly requires no levy.

Fees under § 17.1-272 distinguish:

• $12 for "[m]aking a return of a writ of fieri facias where no levy is made"
• $25 for "[l]evying an execution" or levying on money, bank notes, goods or chattels under § 8.01-478
• $12 for serving general civil process

A judgment creditor who asks the sheriff to levy upon property when serving interrogatories or garnishment should be charged the $25 levy fee, not the $12 process-serving fee.

Currency note

This opinion was issued in 2011 (responding to a 2010 request). 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.

Sheriff fees in § 17.1-272 have been amended multiple times since 2010, and the dollar amounts cited in this opinion are out of date. The conceptual distinctions among fi. fa., interrogatories, and garnishment are stable, but anyone calculating fees today must use the current fee schedule.

Common questions

What's a writ of fieri facias?
A judgment creditor's writ commanding the sheriff to satisfy a money judgment by seizing and selling the debtor's tangible personal property. It also creates a lien on the debtor's intangible personal property as soon as it is delivered to the sheriff.

What's a "levy"?
The process by which the sheriff sets specific property apart from the debtor's general property and places it in the custody of the law, pending sale to satisfy the execution. Walker v. Commonwealth, 59 Va. (18 Gratt.) 13 (1867).

Why aren't garnishments a kind of levy?
Because garnishment is treated as "substantially an action at law" between the judgment creditor and a third party (the garnishee). Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759 (2000); Lynch v. Johnson, 196 Va. 516 (1954). It has its own service of process, its own form requirements, its own evidence and judgment phases. The garnishment summons does not create a lien; the fi. fa. created the lien when delivered to the sheriff. The garnishment is just notice and the mechanism for enforcing the lien against the third party.

When can a creditor get a fi. fa.?
Twenty-one days after judgment is entered. The creditor asks the clerk of the court that entered judgment, and the clerk issues the writ and delivers it to the sheriff.

When does the lien attach?
On tangible personal property, when the sheriff actually levies (§ 8.01-478), and the levy must occur before the writ's return date. On intangible personal property, when the fi. fa. is delivered to the sheriff.

What is the sheriff supposed to write on the return?
Whether the money has been or cannot be made, how a copy of the writ was served, whether a levy was made and when, and any payments received (§ 8.01-483).

Background and statutory framework

Post-judgment collection in Virginia begins with the writ of fieri facias. The writ authorizes the sheriff to levy on tangible personal property and creates an immediate lien on intangible personal property upon delivery to the sheriff.

Garnishment proceedings let a judgment creditor collect against third parties who hold money the debtor is owed. A garnishment summons creates no lien by itself; it is a means of enforcing the lien created by the underlying fi. fa. (Knight v. Peoples Nat'l Bank of Lynchburg, 182 Va. 380 (1944)). A "proceeding in garnishment is substantially an action at law by the judgment debtor in the name of the judgment creditor against the garnishee." Network Solutions, 259 Va. 759 (2000).

Debtor interrogatories require a fi. fa. as a prerequisite but do not require a levy. The interrogatories help the creditor identify property before deciding whether to proceed by levy or garnishment or some other collection method.

Sheriff fees come from § 17.1-272. As of 2010, the relevant figures were: $12 for a fi. fa. return where no levy is made; $25 for levying an execution or levying under § 8.01-478; $12 for serving general civil process. The opinion notes that a judgment creditor who seeks a levy pursuant to a fi. fa. must pay separate fees for the levy and for the service of the writ.

Form documents from the Supreme Court of Virginia (Summons to Answer Interrogatories Form DC-440, Garnishment Summons Form DC-451, Writ of Fieri Facias Form DC-467) provide for documentation of the levy on the back of the form, with appropriate notations when no levy is required or no effects are located.

Citations

• Va. Code Ann. § 8.01-478 (2007)
• Va. Code Ann. § 8.01-483 (2007)
• Va. Code Ann. § 8.01-487.1 (2007)
• Va. Code Ann. § 17.1-272 (2010)
• Walker v. Commonwealth, 59 Va. (18 Gratt.) 13, 43 (1867)
• Humphrey v. Hitt, 47 Va. (6 Gratt.) 509, 526-28 (1850)
• Rowe v. Hardy, 97 Va. 674, 676-77, 34 S.E. 625 (1899)
• Knight v. Peoples Nat'l Bank of Lynchburg, 182 Va. 380, 391, 29 S.E.2d 364, 370 (1944)
• In re Lamm, 47 B.R. 364, 368 (Bankr. E.D. Va. 1984)
• Network Solutions, Inc. v. Umbro Int'l, Inc., 259 Va. 759, 768, 529 S.E.2d 80, 85 (2000)
• Lynch v. Johnson, 196 Va. 516, 521, 84 S.E.2d 419, 422 (1954)
• Levine's Loan Office, Inc. v. Starke, 140 Va. 712, 714, 125 S.E. 683, 684 (1924)
• Doug Rendleman, Enforcement of Judgments and Liens in Virginia (2d ed. 1996)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2011/10-075-Ayers.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 4, 2011

The Honorable L. J. Ayers, III
Sheriff for Amherst County
115 Taylor Street
Amherst, Virginia 24521

Dear Sheriff Ayers:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You seek clarification regarding the executions of a Summons to Answer Interrogatories and Summons in Garnishment. You specifically ask whether the execution of the Writ of Fieri Facias requires the Sheriff to levy at the same time either summons is served. You further inquire regarding the appropriate fees to which the sheriff is entitled for his service in executing these collection methods.

Response

It is my opinion that writs of fieri facias, debtor interrogatories and garnishments are distinct, though related, proceedings, so that, although the sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. It further is my opinion that the fees sheriffs may charge for these services are governed by the express terms of § 17.1-272.

Applicable Law and Discussion

Under Virginia law, after obtaining a judgment for the payment of money, a judgment creditor may institute collection proceedings upon the issuance of a writ of fieri facias. Twenty-one days after judgment is entered, the creditor may request the clerk of the court in which judgment was rendered to issue the writ. Upon receiving the request, the clerk is required to issue the writ and deliver it to the sheriff or other proper person for execution. Upon receipt of the writ, the sheriff or other executing officer is "commanded to make the money therein mentioned out of the goods and chattels of the person against whom the judgment is."

Section 8.01-483 prescribes the protocol for the execution of a writ of fieri facias:

Upon a writ of fieri facias, the officer shall return whether the money therein mentioned has been or cannot be made. If there is only part thereof which is or cannot be made, he shall return the amount of such part. With every execution under which money is recovered, he shall return a statement of the amount received, including his fees and other charges, and shall pay such amount, except such fees and charges, to the person entitled. In his return upon every execution, the officer shall also state in what manner a copy of the writ was served in accordance with § 8.01-487.1, whether or not he made a levy of the same, the date and time of such levy, the date when he received such payment or obtained such satisfaction upon such execution and, if there is more than one defendant, from which defendant he received the same.

Other provisions govern levying, which is the process "by which [specific] property is set apart from the general property of the defendant and placed into the custody of the law until it can be sold and applied to the payment of the execution." Virginia law clearly contemplates that levying is a distinct act and that a levy may not always occur.

Issuance of the writ of fieri facias authorizes a lien against the personal property of the debtor. A lien attaches to the debtor's tangible personal property "from the time it is actually levied by the officer to whom it has been delivered to be executed" and the levy must occur prior to the return date of the writ. Because intangible personal property, such as bonds and notes, is incapable of levy and sale, it is subject to the judgment lien once the writ of fieri facias is delivered to an authorized officer.

Garnishment proceedings are available to judgment creditors to collect against third parties who are believed to hold money to which the judgment debtor is or may be entitled. Although creditors may take advantage of this collection method "by reason of the lien of his writ of fieri facias," garnishment proceedings are separate actions, governed by their own statutory requirements, including specified rules regarding service of process, the form of the summons and the inclusion of the debtor's social security number. A garnishment proceeding "must be regarded as a civil suit, and not as a process of execution to enforce a judgment already rendered. . . . the parties have a day in court; an issue of fact may be tried by a jury; evidence adduced, judgment rendered, costs adjudged, and execution issued on the judgment." Therefore, no levy is necessary when pursuing garnishment proceedings. I further conclude not only that execution of the writ of fieri facias and service of the summons in garnishment need not occur simultaneously, but also that where the sheriff does provide both services concurrently, no levy is required with respect to the garnishment.

"Debtor interrogatories" are a means for the creditor "to ascertain the personal estate of a judgment debtor . . . to which the debtor named in a judgment and fieri facias is entitled[.]" "[U]pon the application of the execution creditor, the clerk of court from which such fieri facias issued, shall issue a summons against the execution debtor," requiring him to "appear before the court from which the fieri facias issued . . . to answer such interrogatories as may be propounded to him[.]" Clearly, issuance of a summons to answer interrogatories requires as a prerequisite the issuance of the writ of fieri facias, but the Code does not require that a levy occur. Rather, a judgment creditor may want to discover what property is available before determining whether to proceed via levy or garnishment, or another collection means.

The fee schedule provided in § 17.1-272 supports the above conclusions. It explicitly provides that the fee for "[m]aking a return of a writ of fieri facias where no levy is made" is $12, whereas the fee for "[l]evying an execution" or [l]evying upon current money, bank notes, goods or chattels of a judgment debtor pursuant to § 8.01-478" is $25. Thus, a judgment creditor who asks the sheriff to levy upon the property of the judgment debtor upon service of debtor interrogatories or garnishment summons should be charged $25 for the levy rather than the $12 fee required for serving "any person, firm or corporation, an order notice summons or any other civil process[.]" Moreover, "a judgment creditor who seeks a levy pursuant to a writ of fieri facias must pay separate fees for the levy and the service of the writ."

"A return on a writ or process is the short official statement of the officer endorsed thereon on what he has done in obedience of the writ or, or why he has done nothing" and "it is the duty of a sheriff or other ministerial officer to return all writs on the return day with a short account in writing endorsed by him thereon of the manner in which he has executed the same, or why he has done nothing." The return forms currently authorized by the Supreme Court of Virginia for the institution of debtor interrogatories and garnishment both provide for the executing officer to document the levy. In the situations where the judgment creditor requests a levy, if the officer locates property while executing the writ, the forms instruct the officer to utilize the back of Form DC-467 to inventory the property. If no effects can be located by the officer, he can simply note that fact on the back of the summons form. In instances where no levy is required, the officer simply may insert his own notation stating that fact.

Conclusion

Accordingly, it is my opinion that writs of fieri facias, debtor interrogatories and garnishments are distinct, though related, proceedings, so that, although the sheriff or other executing officer may be required to levy on the tangible personal property of a judgment debtor when executing a writ of fieri facias, no such requirement is imposed when serving a Summons for Interrogatories or Garnishment Summons. It further is my opinion that the fees sheriffs may charge for their services is governed by the express terms of § 17.1-272.

With kindest regards, I am

Very Truly Yours,

Kenneth T. Cuccinelli, II
Attorney General