© Bruce C. Ward October 1999
The 1999 Kansas legislature passed several laws which benefit those in the collection business. These laws took effect on July 1, 1999. These laws were passed as a result of the joint efforts of the Kansas Credit Attorneys Association and the Kansas Collectors Association, who work closely together not only during the time when the legislature is in session but all year. The two groups share the expenses of a lobbyist and meet at least once a week during the legislative session. A summary of the new laws is as follows: 1. Bad Checks. This was HB 2221 This amends K.S.A. 61-1725 to provide that the provisions of K.S.A. 60-2610 and 60-2611 apply to suits brought under Chapter 61. The purpose of this was to clarify the law and to remove any doubt that the bad check law was intended to apply to suits brought under Chapter 61. 2. Evictions. This was HB 2222. This amends K.S.A. 61-2305 to provide that a landlord may bring an action for possession only and bring a subsequent action for rent. Many attorneys believe that the law prior to this amendment required that any rent which was due at the time of filing must have been included in the action for possession or the claim for rent is waived. If this is true, this causes a problem for attorneys under the federal Fair Debt Collection Practices Act (15 U.S.C. Sec, 1692, et. seq.) if the claim for rent is joined with the claim for possession and certain requirements under the federal act are not met. The amendment will solve the problem. Presumably, landlords will now bring one action for possession (i.e., the eviction) and a subsequent action for all rent and damages due. There is a potential conflict between K.S.A. 61-2305 as amended and 61-2309 which was not amended. KCAA and KCA will address this in the year 2000 legislature. 3. Foreign Judgments. This was SB 306 which eventually became House Substitute for SB 306. This amends K.S.A. 60-3002 which is part of the Uniform Foreign Money Judgments Recognition Act. The amendment will: a. Make it easier to register a foreign judgment in Kansas by allowing a certified copy of the judgment to be filed. b. Provide that if at the time the judgment is filed in Kansas, it is enforceable in the jurisdiction where it was originally rendered, the Kansas statute of limitations on judgments in Kansas shall not apply. The part dealing with the statute of limitations would in effect overrule Johnson Bros. Wholesale Liquor Co. v. Clemmons, 661 P. 2d 1242, 233 Kan. 405 (Kan. 1983) and other cases following it. These cases have held that the Kansas statute of limitations on a foreign judgment begins to run when the judgment is originally rendered in the foreign jurisdiction, rather than looking to the statute of limitations of the state where it was rendered. 4. Garnishment Notice. This deals both with garnishment and execution and was originally introduced as HB 2371, HB 2428 and HB 2332. The content of these bills was subsequently amended into House Substitute for SB 306. The purpose for this is to correct a potential constitutional problem with Kansas law. Many federal and some state courts have held that when there is a taking of property by garnishment or execution, the judgment debtor is entitled to: a. notice of any exemption that may apply to the taking. b. notice of the procedure by which the debtor can claim any exemption. c. the right to a hearing to assert any exemption claimed. Kansas law before the amendment did not fully provide for the above. The amendment to the garnishment statutes is the same for Chapter 60 and 61. Here is a summary of the changes: (1) If money or wages are seized by a garnishment as disclosed by the garnishee's answer, the clerk shall send to the defendant a copy of the answer and a notice of exemptions and right to hearing within 10 days after the date the answer is filed. The garnishee shall disclose on the answer form the last known address for the defendant according to their records. (2) The content and form of the notice is specified in the amendment. There is a separate form for wage and non-wage garnishment. The form for the order and answer has also been changed slightly. (3) The defendant shall have 10 days after service of the notice within which to file a request for hearing to assert any claim to exemption. The defendant shall obtain from the clerk or court a hearing date and mail or deliver to the plaintiff (or attorney) a copy of the request for hearing showing the hearing date. (4) Any hearing requested shall be held within 5 to 10 days after request is filed. (5) The burden is on the defendant to show that some or all of the property subject to the garnishment is exempt. The court shall enter such order or orders as is appropriate. The amendment to the execution statutes is similar. The notice of exemptions and right to hearing shall be served on the defendant with the writ of execution. The procedure thereafter is identical to that for garnishment. The content and form of the notice is slightly different from the one for non-wage garnishment. KCAA
& KCA also sought to amend K.S.A. 60-2310 (d) in HB 2209 to eliminate
the prohibition on the use of wage garnishment on assigned accounts by
deleting subparagraph d in its entirety. This bill was assigned to
the House Judiciary Committee. It passed out of the committee but
there was opposition when considered on the floor and it was referred back
to Judiciary for further review. The bill remains in Judiciary and
will be considered again next year.
The Kansas Credit Attorneys Association (KCAA) will hold its annual convention in Topeka on November 9-10, 1999, at the Capital Plaza Hotel. It will be held at the same time as the annual meeting for the Kansas Collectors Association (KCA). At least one day is planned for joint meetings between the two groups. The
complete schedule for the convention is posted at the KCAA
website.
I have installed a new e-mail system in our office which gives each person in the office access to e-mail via the Internet. I would like to begin using e-mail in correspondence with my clients wherever possible. I have begun a process of soliciting consent from my clients to do this. I believe that e-mail is an efficient and inexpensive way for an attorney and client to communicate. Studies have shown that parties using e-mail can reasonably expect their communications to be delivered and that the privacy of those communications will not be compromised, even when using unencrypted e-mail. The bar associations of at least 6 states have approved the use of unencrypted e-mail between an attorney and client. Only one state (Iowa) has required the use of encryption. Kansas has not taken a position. If
you want to see what the American Bar Association thinks about the issue,
follow these links:
If you have questions or
comments about this, please let me know at: bruce@brucewardlaw.com.
Thanks.
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