WVC 38 -
CHAPTER 38. LIENS.
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ARTICLE 5A. SUGGESTIONS OF SALARY AND WAGES OF PERSONS ENGAGED IN
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For purposes of this article:
(1) "Salary" and "wages" shall be given their ordinary
meaning but in any event shall include compensation measured
partly or wholly by commissions, percentages or share of profits
or by other sums based upon work done or results produced whether
or not the judgment debtor is given a drawing account.
(2) The term "suggestee execution" shall mean an execution
differing from an ordinary execution upon a judgment only in that
it is directed against money due or to become due to the judgment
debtor from the suggestee as therein set out.
(3) The term "judgment creditor" shall include the owner of
a money decree.
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§38-5A-2. Salary or wages subject to suggestion only as provided
in this article.
Salary or wages payable to any person engaged in private
employment, whether due and owing or to become due and owing,
shall be subject to suggestion by judgment creditors only as
provided by this article.
§38-5A-3. Application for suggestee execution against salary or wages; extent of lien and continuing levy; exemption; priority among suggestee executions.
(a) A judgment creditor may apply to the court in which the judgment was recovered or a court having jurisdiction of the same, without notice to the judgment debtor, for a suggestee execution against any money due or to become due within one year after the issuance of such execution to the judgment debtor as salary or wages arising out of any private employment. If satisfactory proof shall be made, by affidavit or otherwise, of such facts and the fact that the amount due or to become due as salary or wages after the deduction of all state and federal taxes exceeds in any week fifty times the federal minimum hourly wage then in effect, the court, if not a court of record, or if a court of record the clerk thereof, shall issue a suggestee execution against the salary or wages of the judgment debtor and upon presentation of such execution by the officer to whom delivered for collection to the person or persons from which such salary or wages are due and owing or thereafter may become due and owing to the judgment debtor, the execution and the expenses thereof shall become a lien and continuing levy upon the salary or wages due or to become due to the judgment debtor within one year after the issuance of the same, unless sooner vacated or modified as hereinafter provided, to an amount equal to twenty percent thereof and no more, but in no event shall the payments in satisfaction of such an execution reduce the amount payable to the judgment debtor to an amount per week that is less than fifty times the federal minimum hourly wage then in effect. Only one such execution shall be satisfied, at one time, except that in the event two or more such executions have been served and satisfaction of the one having priority is completed without exhausting the amount of the salary or wages then due and payable that is subject to suggestion under this article the balance of such amount shall be paid in satisfaction, in the order of their priority, of junior suggestee executions against such salary or wages theretofore served.
(b) The suggestee execution by the judgment creditor provided in this section shall include, to the extent possible, the present address, the last four digits of the Social Security number and date of birth of the judgment debtor, which information shall be made available for the purpose of properly identifying the judgment debtor whose salary or wages are being levied upon.
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§38-5A-4. Notice to judgment debtor; time for service on
A certified copy of an execution issued under this article
against salary or wages shall be served upon the judgment debtor.
Such service shall be made by the court or the clerk of the court
who issued the execution by mailing the copy to the judgment debtor
or his or her agent authorized to accept service of process by
certified mail, return receipt requested. The day and hour of such
mailing shall be clearly noted on the face of the original
execution and the clerk of the court or the officer to whom it is
delivered for collection shall not make service upon the suggestee
until the expiration of five days from that time.
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§38-5A-5. Service of suggestee execution upon suggestee; payments
in satisfaction of execution; action for failure or
refusal to pay; payments to be made every ninety
(a) Service of a suggestee execution against salary or wages
may be made by the clerk of the circuit court or the magistrate
court clerk, as the case may be, by sending a copy of the suggestee
execution to the suggestee by certified mail, return receipt
requested, with delivery restricted to the addressee as provided by
subdivision (1), section (d) of rule four of the Rules of Civil
Procedure for trial courts of record. If the registered mail is
unclaimed or otherwise is not accepted or is refused by the
suggestee, then service of the suggestee execution shall be made in
the same manner as a summons commencing an action is served in
accordance with the Rules of Civil Procedure for trial courts of
That if the suggestee is located in a county
other than the county where the suggestee execution issues, the
clerk may mail the suggestee execution by first class mail to the
sheriff of the other county for such service. If the service is
made on a corporation, limited liability company or other person or
entity through the Secretary of State, it shall be submitted along
with the fee required by section two, article one, chapter
fifty-nine of this code.
(b) If the suggestee served with the execution is indebted or
will in the future become indebted to the judgment debtor for salary or wages, then during the time the execution remains a lien
on any indebtedness for salary and wages the suggestee is required
to pay over to the officer serving the same or to the judgment
creditor the percentage of the indebtedness required by section
three of this article until the execution is wholly satisfied. The
suggestee shall deduct the amounts paid from the amounts payable to
the judgment debtor as salary or wages and the deduction of these
amounts is a bar to any further action by the judgment creditor
against the wages or salary of the judgment debtor.
(c) Once every ninety days during the life of such execution
and any renewal execution the suggestee upon whom the execution or
any renewal execution is served shall pay over to the officer who
served the same or to the judgment creditor the full amount of
money held or retained pursuant to such execution or renewal
execution during the preceding ninety days.
If the suggestee upon whom the execution is served fails or
refuses to pay over to the officer serving the execution or to the
judgment creditor the required percentage of the indebtedness, as
aforesaid, he or she shall be liable to an action therefor by the
judgment creditor named in the execution and the amount recovered
in the action shall be applied in satisfaction of the execution.
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§38-5A-6. Vacation and modification of suggestee executions.
Either party may apply at any time to the court if a court
not of record, or the court or a judge thereof, if a court of
record, from which such an execution shall have issued, upon such
notice to the other party as such court or judge shall direct for
the vacation or modification of the execution. After conducting
a hearing thereon, the court or judge shall vacate the execution
if satisfaction of the same or the judgment be made out by
affidavit or otherwise, and in any case may make such
modification of the execution as shall be deemed just, and such
execution as so modified shall continue in full force and effect
until paid and satisfied, or until vacated or further so
modified. Such an execution may be vacated at any time upon the
application of the judgment creditor without notice or a hearing
and in such a case the clerk of a court of record shall have
power to vacate the execution if issued out of his court. For
the protection of the suggestee the lien of a suggestee execution
shall, as regards the suggestee, be deemed unaffected by a
vacating or modifying order prior to service of such order upon
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§38-5A-7. Renewal of suggestee executions.
A suggestee execution which shall expire wholly or partly
unsatisfied may be renewed from time to time in the manner in
which it was originally issued and for a like period. The
renewal execution shall conform to the original save that it
shall state in addition the fact that it is a renewal and shall
be issued only for the balance due on the judgment. A renewal
execution shall retain the same priority of lien as the original
if, and only if, served within a thirty-day period ending on the
date of the expiration of the life of the original or the last
previous renewal, as the case may be.
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§38-5A-8. Priority of suggestee executions over assignments.
An execution issued and served under this article shall have
priority over an assignment filed with the suggestee subsequent
to service of the notice required by section four hereof.
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A judgment debtor to whom money is due or to become due
which would otherwise be subject to suggestion under this article
may have the same exempted from levy in the manner and to the
extent provided for by article eight of this chapter. The
exemption may be claimed for sums currently accruing but must be
asserted anew as to any salary or wages which shall begin to
accrue after the next payment date. Such exemption shall not be
binding upon a suggestee unless and until a certificate of
exemption or true copy thereof shall have been delivered to him.
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§38-5A-10. Accounting for moneys collected under suggestee
It shall be the duty of the officer to whom a suggestee
execution shall be delivered to account for and pay over to the
person entitled thereto all moneys collected on such execution,
less his lawful fees and expenses for collecting the same. Such
accounting shall be made from time to time and at least once
every month from the time a levy shall have been made.
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§38-5A-11. Supreme court of appeals authorized to prescribe forms
of suggestee executions.
In aid of the better administration of this article the
supreme court of appeals is hereby authorized to prescribe forms
of suggestee executions conformable to the provisions hereof.
Forms so prescribed shall be followed in the preparation of all
suggestee executions issued under this article from and after a
date to be fixed by the supreme court of appeals in promulgating
the same, which shall not be less than thirty, nor more than
ninety days after their certification as hereinafter provided.
Copies of forms so prescribed shall be certified by the clerk of
the supreme court of appeals to the clerk of each court of record
in the state. It shall thereupon be the duty in turn of each
such clerk to furnish each court not of record within the
circuit, district, or other territorial area constituting the
territorial jurisdiction of his court, by registered mail, with
true copies of the forms and at the same time to inform such
court of the time when the action of the supreme court of appeals
in prescribing the forms shall take effect.
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The general laws governing the fees of courts and court
officers shall apply to the duties and functions performed under
this article. In no event, however, shall the fee for modifying
or vacating a suggestee execution exceed one dollar.
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§38-5A-13. Construction of article.
This article is remedial in purpose and shall be liberally
construed to that end.