Journal Issue Date: July/August 2021
Journal Name: Vol. 56 No. 4
Tennessee judgments are good for 10 years.1 Rule 69.04, amended by the Tennessee Supreme Court in 2016, makes the process now even easier to extend the life of a judgment.2
Rather than seeking a court order to show cause why the judgment shouldn’t be extended, the amended rule allows you to simply file a motion to extend the judgment, which is granted in 30 days if there is no opposition. A judgment debtor’s rights remain protected because the rule requires that the motion be mailed to the last known address of the judgment debtor and provides for a hearing if there is opposition to the extension. At a hearing on an objection to the extension, the judgment debtor has the burden to show why the judgment should not be extended for an additional 10 years.
Since Rule 69’s complete overhaul in 2004, our courts have answered a number of questions related to the procedure, including several following the 2016 amendment:
• The 10 years runs from entry of the judgment. A cause of action on a final judgment, that is, one that is appealable as of right, accrues on the date the judgment is entered, even though the judgment may be appealed and further action on the judgment is suspended in the trial court until the ruling of the appellate court.3
• An extension tacks on to the end of the previous 10-year period. Extensions of judgments are not new judgments in themselves. In extending a judgment, a judgment creditor simply prolongs the life of the judgment another 10 years. The Court of Appeals has thus held “[s]ince an extended judgment is not a new judgment, the lifespan of that extended judgment begins to run at the expiration of the first ten years from the effective date of the judgment.”4
• The motion to extend a judgment must be filed within the previous 10-year period. Rule 69.04’s time limit within which to file a motion to extend is mandatory.5
• If the motion is filed timely, the order may be entered outside the previous 10-year period. Rule 69.04 does not require the order extending the judgment for the additional 10-year period to be entered within the previous 10-year period.6 A word of caution — if you delay entry of the order extending the judgment beyond the previous 10-year period, you risk creating a gap in your judgment lien. Better to be diligent. Within the previous 10-year period, get an order extending a judgment entered and then register a certified copy of the order in every county where the judgment debtor has real property in order to protect the Rule 69.07(2) judgment lien priority.
• Extension of a judgment by scire facias is no longer available.7 Don Paine wrote in his August 2013 Paine on Procedure column: “You’ll find some statutes in the Code conflicting with Rule 69. But don’t worry about them. They are ‘of no further force or effect’ under Tenn. Code Ann. § 16-3-406.” The advisory commission comment to the 2004 amendment provided that the intent of the entirely rewritten Rule 69 is “to consolidate procedures established by statute, court precedent, and custom into a single orderly rule.” The advisory commission comment to the 2016 amendment further stated that the revision “eliminates the prior procedure of issuance of a show cause order by the court.” This has prompted the Court of Appeals to comment: “Rule 69.04 appears to have supplanted revival of a judgment by scire facias, a judicial writ calling for a person to show cause why a dormant judgment against that person should not be revived.”8 It is best not to take a chance with a writ of scire facias.
The process of renewing a judgment has never been easier.9 But what happens if the judgment debtor is in bankruptcy when it is time to extend a judgment?
The issue that arises is whether the bankruptcy automatic stay in 11 U.S.C. § 362(a) prevents a judgment creditor from extending a judgment under Rule 69.04. This question has yet to be answered in Tennessee. Courts outside of Tennessee, except for an outlier or two, generally hold that extending a judgment does not violate the stay.10 Courts that have addressed this issue focus on the amount of judicial involvement required and whether the extension maintains status quo. The view that extending a judgment under Rule 69.04 does not violate the stay is the better one, particularly under Rule 69.04’s motion procedure where there is little judicial involvement and the extension simply maintains the status quo. This view also promotes judicial economy and efficiency, in that many judgments or the likelihood of collecting them may be cost prohibitive to filing a motion to lift the automatic stay in bankruptcy court just to extend the judgment.
Alternatively, if extending a judgment does violate the automatic stay, the Tennessee Court of Appeals has recently addressed the protections afforded under the Bankruptcy Code when a state time limitation expires while the automatic stay is in place.11 Under the provisions of 11 U.S.C. § 108(c), a time limit that expires during the stay is automatically preserved until 30 days after notice of the stay’s termination. If you do not extend the judgment while a bankruptcy automatic stay is in effect, 11 U.S.C. § 108 (c) gives you 30 days after notice of the termination or expiration of the stay within which to file a motion to extend a judgment. The automatic stay does not suspend the time period, so you can only take advantage of 11 U.S.C § (c)’s 30-day extension following the termination of the automatic stay if the time for extending a judgment expires during the stay.12
You should remember a few other things about extending judgments in Tennessee. Rule 1 of the Tennessee Rules of Civil Procedure makes Rule 69 applicable to civil judgments in general sessions courts. And if you have a federal court judgment, federal courts use state procedure.13
Finally, do not forget the judgment lien. Registering a certified copy of the judgment in the register’s office of the county where the judgment debtor’s real property is located will give you a judgment lien against a judgment debtor’s realty in that county. Repeat the Rule 69.07(4) process in every county where the judgment debtor owns real property. The judgment lien is good for the time remaining on the judgment and for any extension granted by the court under Rule 69.04. If you extend the judgment, be sure to register the court’s order extending the judgment. Otherwise, the extension of the lien is not enforceable.
JONATHAN O. STEEN is a civil trial lawyer with Spragins, Barnett & Cobb PLC in Jackson, Tennessee. He has tried cases involving the appointment of a receiver for a rural critical access hospital, for breach of lease, and representing plaintiffs and defendants in property damage, personal injury and death claims. He has also argued cases before appellate courts. Steen is a past president of the Tennessee Bar Association and currently serves as a member of the TBA’s House of Delegates and Tennessee Bar Journal Editorial Board. He is a fellow of the Tennessee and American Bar Foundations.
1. Tenn. Code Ann. § 28-3-110(a)(2) and (3).
2. Tenn. R. Civ. P. 69.04, amended effective July 1, 2016.
3. Shepard v. Lanier, 241 S.W.2d 587, 590-92 (Tenn. 1951); see also Marcum-Bush v. Quinn, 2018 Tenn. App. LEXIS 166, *7 (Tenn. Ct. App. Mar. 29, 2018), app. den. Marcum-Bush v. Quinn, 2018 Tenn. App. LEXIS 415 (Tenn. Jul. 19, 2018).
4. Cook v. Alley, 419 S.W.3d 256, 260 (Tenn. Ct. App. 2013)
5. Town & Country Jewelers Inc. v. Trotter, 538 S.W.3d 508, 515-516 (Tenn. Ct. App. 2017).
6. Scott v. White, 2017 Tenn. App. LEXIS 476, *7 (Tenn. Ct. App. Sept. 2, 2016).
7. See, e.g., Tenn. Code Ann. § 25-4-101; Tenn. Code Ann. § 29-32-101 to 109; and the Tennessee common law writ of scire facias.
8. Marcum-Bush, 2018 Tenn. App. LEXIS 166 at *9 – 10.
9. See, e.g., Stewart Title Guar. Co. v. A&R Title & Closing Inc., 2017 U.S. Dist. LEXIS 142029, *1 (E.D. Tenn. August 11, 2017) (Shirley, Mag. J.) (court denied plaintiff’s request for an order to show cause as to why judgment should not be extended because Tenn. R. Civ. P. 69.04 was amended to eliminate such procedure), adopted in whole by Stewart Title Guar. Co. v. A&R Title & Closing, Inc., 2017 U.S. Dist. LEXIS 141578 (E.D. Tenn. September 1, 2017
10. Jacobs v. Brain Power Am. Inc., 2017 U.S. Dist. LEXIS 29599, *5-6 (D. Nev. March 2, 2017) (performing an act that continues the existence of a lien that is already in place does not violate the automatic stay); see also 3M Dozer Serv. v. Baker, 136 P.3d 1047, 1050 (Okla. 2006) (collecting cases).
11. McCullough v. Vaughn, 538 S.W.3d 501 (Tenn. Ct. App. 2017).
12. Id. at 507.
13. Fed. R. Civ. P. 69(a); see also In re Hunt (Lillie v. Hunt), 323 B.R. 665, 666-67 (Bankr. W.D. Tenn. 2005) (court followed procedure of Tenn. R. Civ. P. 69.04 in extending judgment).
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