Colorado § 13-54.5-109 - Hearing on objection or claim of exemption.

§ 13-54.5-109. Hearing on objection or claim of exemption.

(1) (a) Upon the filing of an objection pursuant to section 13-54.5-108 (1)(a) or the filing of a claim of exemption pursuant to section 13-54.5-108 (1)(b), the court in which the judgment was entered shall set a time for the hearing of such objection or claim, which shall be not more than fourteen days after filing. The clerk of the court where such objection or claim is filed shall immediately inform the judgment creditor or his or her attorney of record and the judgment debtor or his or her attorney of record by telephone, by mail, or in person of the date set for such hearing.

(b) The certificate of the clerk of the court that service of notice of such hearing has been made in the manner and form stated in paragraph (a) of this subsection (1), which certificate has been attached to the court file, shall constitute prima facie evidence of such service, and such certificate of service filed with the clerk of the court is sufficient return of such service.

(2) Upon such hearing, the court shall summarily try and determine whether the amount of the judgment debtor's exempt earnings was correctly calculated by the garnishee or whether the property held by the garnishee is exempt and shall enter an order or judgment setting forth the determination of the court. If the amount of exempt earnings is found to have been miscalculated or if said property is found to be exempt, the court shall order the clerk of the court to remit the amount of over-garnished earnings, or the garnishee to remit such exempt property, to the judgment debtor within seven days.

(3) Where the judgment debtor moves the court to hear an objection or claim of exemption within the time provided by section 13-54.5-108 (3) and the judgment giving rise to such claim has been satisfied against property or earnings of the judgment debtor, the court shall hear and summarily try and determine whether the amount of the judgment debtor's earnings paid to the judgment creditor was correctly calculated and whether the judgment debtor's property sold in execution was exempt and shall issue an order setting forth the determination of the court. If such amount of earnings is found to have been miscalculated or if such property is found to be exempt, the court shall order the judgment creditor to remit the amount of the over-garnished earnings or such exempt property or the value thereof to the judgment debtor within seven days.

(4) Any order or judgment entered by the court as provided for in subsections (2) and (3) of this section is a final judgment or order for the purpose of appellate review.

Source: L. 84: Entire article added, p. 474, § 1, effective January 1, 1985. L. 2012: (1)(a), (2), and (3) amended, (SB 12-175), ch. 208, p. 827, § 17, effective July 1.

ANNOTATION

Failure to comply with a court order does not supersede requirement to set a hearing pursuant to subsection (1)(a). The court may not sanction a party for his or her failure to comply with a court order by refusing to set a hearing on an objection or claim of exemption. The setting of a hearing is mandatory, not discretionary. Borrayo v. Lefever, 159 P.3d 657 (Colo. App. 2006).

Under § 5-12-102, a garnishor is entitled to postjudgment interest on a garnishment amount based on the garnishee's unreasonable delay in paying the sums due. There is no basis to treat a garnishee against whom a judgment is entered differently from a defendant against whom another judgment is entered. Thompson v. Catlin Ins. Co. (UK) Ltd., 2018 CO 95, 431 P.3d 224.