In Gloor v. BancorpSouth Bank, No. 2140914 (Ala. Civ. App. April 1, 2016), the Alabama Court of Civil Appeals held that a creditor may revive and collect on an unpaid judgment that is older than 10 years, further clarifying a significant protection afforded to financial institutions charged with recovering past due amounts owed by judgment debtors.
In January 2004, BancorpSouth Bank obtained a judgment against Thomas W. Gloor, III. In January 2015, the Bank filed and served on Gloor a motion seeking the revival of the judgment pursuant to Ala. Code § 6-9-190, et seq. The Bank supported its motion with an affidavit from one of its corporate officers stating that he was familiar with the record pertaining to the recovery of the debt and judgment owed by Gloor, that the judgment remained unpaid, and that despite the Bank’s collection efforts an unpaid balance remained. Gloor filed a motion to strike the affidavit and to quash service of the motion; however, he made no attempt to show that he had actually satisfied the judgment. After a hearing, the trial court concluded that the motion and affidavit demonstrated that the 2004 judgment remained unpaid and entered a judgment allowing the Bank’s requested revival. Gloor appealed, arguing that: (1) the trial court lacked subject matter jurisdiction to act on the revival motion because no filing fee had been paid; (2) the trial court lacked personal jurisdiction because the Bank did not serve him with process pursuant to Rule 4 of the Alabama Rules of Civil Procedure; and (3) that the trial court erred in determining that the Bank’s corporate officer’s affidavit was sufficient to establish that the Bank had not been paid the amount due under the 2004 judgment.
The Alabama Court of Civil Appeals rejected each of Gloor’s arguments and affirmed the trial court’s judgment allowing the Bank’s revival of the 2004 judgment. First, the Court explained that the motion to revive the 2004 judgment was simply a motion to reinvest the Bank with the power of execution on a judgment it had already obtained in the same proceeding. Accordingly, the Court held that the Bank’s post-judgment revival motion did not involve the commencement of a new action to which the filing fee statutes apply. For the same reasons, the Court rejected Gloor’s argument that the Bank was required to serve him with the revival motion under Rule 4. Finally, the Court noted that, in a motion for revival of a judgment, proof of nonpayment sufficient to overcome the statutory 10-year presumption of payment of judgments may be provided in the form of an affidavit from a corporate officer with responsibility for recovery of debts who would have personal knowledge derived from his employment of whether the judgment creditor had been paid the monies due under its judgment. Thus, the Bank’s proof of non-payment was sufficient to rebut the statutory presumption of payment.