N.D.R.Ct.
RULE 7.1 JUDGMENTS, ORDERS AND DECREES
(d) Satisfaction of Judgment for Money When Judgment Creditor Cannot Be Found.
(1) Satisfaction by Motion to Satisfy. A judgment for money may be satisfied by the court in which the judgment was rendered, if no execution is outstanding and the time for appeal has expired, may be satisfied by the court upon written motion of the debtor supported by affidavit stating as follows:
(A) The judgment debtor may file a written motion for satisfaction with the court, supported by an affidavit executed by the judgment debtor or the judgment debtor's attorney stating the following:
a. (i) the amount, of the original judgment and the judgment balance, and accrued interest, and costs due the judgment creditor;
b. (ii) that after the exercise of due diligence the judgment creditor and the judgment creditor's attorney cannot be found or that the judgment creditor or the judgment creditor's attorney has failed or refused to deliver a satisfaction of judgment upon being tendered the amount due; and
c. (iii) that notice of the motion has been sent by mail or third-party commercial carrier to the judgment creditor and the judgment creditor's attorney at their respective last- known addresses.
(2) Order of Satisfaction. (B) Upon granting the motion, the court shall enter an order directing the clerk to receive the amount of due on the judgment with accrued interest and costs for the judgment creditor. After payment, the court shall enter an order satisfying the judgment and showing the amount deposited with the clerk.
(3) Decrees. (C) For purposes of this rule, the word "judgment" includes a decree for payment of money upon which execution could issue.
(2) Satisfaction by Affidavit. A judgment for money may be satisfied by the clerk of the court in which the judgment was rendered, if no execution is outstanding and the time for appeal has expired, as follows:
(A) The judgment debtor or the judgment debtor's attorney may execute and file an affidavit for satisfaction with the clerk stating the following:
(i) the amount of the original judgment and the judgment balance, and accrued interest and costs due the judgment creditor;
(ii) that the judgment debtor desires to pay the amount due on the judgment; and (iii) that after the exercise of due diligence the judgment creditor and the judgment creditor's attorney cannot be found or that the judgment creditor or the judgment creditor's attorney has failed or refused to deliver a satisfaction of judgment upon being tendered the amount due.
(B) Upon receipt of the affidavit and payment of the amount due on the judgment with accrued interest and costs for the judgment creditor, the clerk shall:
(i) note satisfaction of the judgment on the judgment docket and on the register of the action in which the judgment was entered;
(ii) execute under the seal of the court and deliver to the judgment debtor a certificate reciting that the amount paid in satisfaction of the judgment, with accrued interest and costs, has been received and that the judgment has been fully paid and satisfied; and
(iii) notify all persons of record in the action appearing to have any interest in, or lien upon, the judgment, including the attorney of record for the original judgment creditor, that the clerk has received the amount due on the judgment and that the judgment has been satisfied of record. The notice must be in writing and must be given by certified or registered mail to the last-known post office address of each of the persons entitled to receive the notice. The clerk must file the receipts for mailing the notice with the other papers in the action.
(B) Upon demand, the clerk shall pay the amount received in satisfaction of the money judgment, with accrued interest and costs, to the person entitled to receive payment of the judgment amount. The clerk must take duplicate receipts for payment, one to be held by the clerk and one to be filed with the other papers in the action.
(C) A discharge entered by a clerk before the time for appeal has expired is void and without prejudice to a judgment creditor or the judgment creditor's assigns.
EXPLANATORY NOTE
Rule 7.1 was amended, effective March 1, 1994; March 1, 1999; .
Rule 7.1 was amended, effective March 1, 1994, in response to GeoStar Corp. v. Parkway Petroleum, Inc., 495 N.W.2d 61, 65-66 (N.D. 1993) and Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990). The amendment to subdivision (a) requires the prevailing party to prepare a draft of the order or decree whenever the court makes a ruling other than in the course of trial. Former subdivision (a) also required the prevailing party to prepare drafts of the order, order for judgment, or decree to be entered, whenever the court made a final determination in an action.
New subdivisions (b) and (c) were added. Former subdivision (b) was changed to subdivision (d). New subdivision (b) concerns the preparation of findings of fact and conclusions of law under Rule 52(a), N.D.R.Civ.P. New subdivision (c) was added to provide notice to all parties and to prevent ex parte contact with the court.
Subdivision (d) was amended, effective March 1, 1999, to allow a notice of the motion to satisfy to be sent via commercial carrier as an alternative to mail.
Subdivision (d) was amended, effective , to incorporate the provisions of N.D.C.C. § 28-20-28, which permit a money judgment to be satisfied upon payment of the amount due to the clerk of the court in which the judgment was rendered without filing a motion for satisfaction with the court. The amendments permit a judgment debtor to satisfy a judgment for money by either filing a written motion for satisfaction with the court and paying the amount due upon entry of an order of satisfaction, or by paying the amount due to the clerk and receiving from the clerk a certificate of satisfaction.
SOURCES: Joint Procedure Committee Minutes of ; January 29-30, 1998, page 22; April 29-30, 1993, page 11; January 28-29, 1993, pages 9-10.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 28-20-28.
CROSS REFERENCE: N.D.R.Civ.P. 52 (Findings by the Court), and N.D.R.Civ.P. 60 (Relief From Judgment or Order).