CREDIT BUREAU OF EASTERN IDAHO, Inc., an Idaho corporation, Plaintiff-Appellant,
JESSE ACEDO, Party Aggrieved-Respondent, and CHARLEANE A. HERMOSILLO and JESSE HERMOSILLO, husband and wife, Defendants.
from the District Court of the Seventh Judicial District,
State of Idaho, Madison County. Hon. Gregory W. Moeller,
District Judge. Hon. Mark Rammell, Magistrate.
of the district court, on intermediate appeal from the
magistrate, affirming orders granting third-party claim of
exemption and awarding attorney fees on intermediate appeal,
Driscoll & Assoc., PLLC, Idaho Falls, for appellant.
Bryan N. Zollinger argued.
Covert, Idaho Falls, for respondent.
these consolidated appeals, Credit Bureau of Eastern Idaho,
Inc. (CBEI) appeals from the orders of the district court, on
intermediate appeal from the magistrate, granting Jesse
Acedo's third-party claim of exemption and the district
court's order awarding attorney fees on intermediate
appeal. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hermosillo and her child incurred medical expenses that
were unpaid. The unpaid debt was assigned to CBEI. In an
effort to collect on that debt, CBEI filed a complaint in
April 2009. The complaint named the defendants as
"Charleane A. Hermosillo and John Doe, wife and
husband." When the complaint was served at
Charleane's address, it was delivered to Jesse Acedo. The
process server submitted an affidavit of service indicating
that the complaint was served on "Jesse Hermosillo -
Husband - (John Doe)." CBEI, therefore, moved to amend
the complaint to reflect the defendants' names as
"Charleane Hermosillo and Jesse Hermosillo, wife and
husband." After neither defendant answered the
complaint, CBEI sought and obtained a default judgment
against "Charleane A. Hermosillo and Jesse Hermosillo,
wife and husband" in the amount of $6, 291.78. Of the
$6, 291.78, $3, 381.57 was for the principal on the debt, $1,
147.16 was for interest, $1, 585.05 was for attorney fees,
and $178.00 was for fees.
a week of obtaining the judgment, CBEI filed an application
for order of continuing garnishment and an affidavit in
support of writ of execution. The magistrate entered an order
"against the employer of Charleane Hermosillo" for
garnishment of "Charleane Hermosillo's disposable
earnings from H-K Contractors." Because CBEI did not
receive any money from its writ of execution,  it filed an
application for an order of examination. The magistrate
entered an order of examination directed to Charleane
Hermosillo and a separate order of examination directed to
Jesse Hermosillo. The examinations were scheduled for August
to an affidavit filed by CBEI's counsel, Jesse Acedo met
with counsel on August 5, 2009, and Jesse informed counsel
that his surname was Acedo, not Hermosillo, "that he and
Charleane Hermosillo had a child together" and that
"a majority of the bills that were a cause of this
action were for the child of Jesse and Charleane
Hermosillo." Two weeks later, on August 19, 2009, CBEI
filed an application for order of continuing garnishment
requesting an order of garnishment against "Jesse
Hermosillo a.k.a. Jesse Acedo." The affidavit in support
of writ of execution filed with the application was for $6,
489.41, reflecting $197.63 in additional fees and interest
added since the original judgment was entered. The magistrate
entered an order for continuing garnishment in that amount
against "Jesse Hermosillo a.k.a. Jesse Acedo's
disposable earnings from H-K Contractors."
September 2009, Acedo's attorney sent CBEI a letter
advising CBEI that it was improperly garnishing Acedo's
wages for a judgment that was not entered against him. In
response, CBEI sent a letter to Acedo's attorney stating
that the amount attributable to "Jesse's child"
was $1, 400.42 plus $214.86 in prejudgment interest plus
"prorated" fees and costs, including $565.39 in
attorney fees, $112.36 in costs, and $46.41 in post-judgment
interest for a "total amount" of $2, 339.44.
March 2010, $3, 543.68 of Acedo's wages from H-K
Contractors had been garnished for payment on the judgment.
That same month, CBEI filed an application for order of
continuing garnishment in relation to Charleane Hermosillo.
Additional payments of $1, 012.97 were made on the judgment
from subsequent garnishments from Acedo's wages,
voluntary payments from Acedo,  and $196.10 garnished from
Charleane Hermosillo's wages. By February 2012, a total
of $4, 556.65 was paid on the judgment. Due to accruing
interest and fees associated with CBEI's collection
efforts, the balance due in February 2012 was $2, 862.41.
March 2012, Acedo filed a third-party claim of exemption
after he received a notice of garnishment from his credit
union advising him that $2, 378.00 from his checking and
savings accounts was being held subject to the writ of
execution and garnishment filed by CBEI on the judgment
entered against "Charleane Hermosillo and Jesse
Hermosillo, wife and husband." The accompanying
documents prepared by CBEI and submitted by the sheriff to
the credit union represented that Jesse Acedo was an alias
for Jesse Hermosillo, that the court had entered judgment
against "Charleane Hermosillo and Jesse Acedo," and
that the clerk of court issued a writ of execution against
"Charleane Hermosillo and Jesse Acedo" on August
24, 2011. CBEI objected to Acedo's claim of
exemption. In a supporting affidavit, counsel for CBEI
averred that the credit union contacted him in March 2012
"to confirm that they had attached the correct
account" to the garnishment because "[n]either the
names Charleane and Jesse Hermosillo nor Jesse Acedo was the
correct name of the account holder for the account number
listed on the notice of garnishment, which was taken from the
checks remitted to [counsel's] office."
Counsel's "assistant confirmed Jesse's social
security number with the social security number of the
account holder and it matched." The credit union
thereafter "attached the accounts based on his social
security number[, ] not his name."
magistrate held a hearing on Acedo's third-party
exemption claim. The minutes of that hearing reflect that the
magistrate ordered "the money be held in trust - until
this gets figured out" and stayed continuing
garnishment. The minutes also indicate the motion for
exemption was "denied" and the matter was "set
aside" for lack of service. CBEI subsequently submitted
an order stating Acedo's claim of exemption was denied
and requiring that "the funds attached by the writ of
execution" be retained in a trust account for twenty-one
days after the date of the hearing "to allow defendant
sufficient time to file any motions desired"; the
magistrate signed that order on April 24, 2012. Two days
later, $2, 378.00 was garnished from Acedo's credit union
accounts, and one day after the garnishment, CBEI recorded a
satisfaction of judgment.
moved to set aside the April 24, 2012 order, asserting it did
not accurately reflect the magistrate's ruling at the
exemption hearing and that the order was submitted to the
court without notice to Acedo. The magistrate set the April
24, 2012 order aside. Acedo subsequently filed a motion to
set aside the judgment, which the magistrate granted. The
magistrate concluded that the judgment was void as to Acedo
because he was not properly served. The magistrate directed
CBEI to return all funds obtained from Acedo as part of the
judgment. CBEI appealed to the district court. On
intermediate appeal, the district court held that the
magistrate "correctly concluded the default judgment was
void due to defects in the pleadings served," but the
magistrate erred in failing to make a finding that the motion
to set aside was timely under I.R.C.P. 60(b)(4). The district
court, therefore, remanded to the magistrate for further
proceedings consistent with the district court's
appellate decision. The district court also awarded CBEI
costs, pursuant to I.A.R. 40, but not attorney fees.
remand, Acedo filed a renewed third-party claim of exemption
rather than pursuing his previous motion to set aside the
judgment. The magistrate granted Acedo's request for a
third-party exemption and ordered "the funds attached
and obtained from Jesse Acedo be returned immediately,"
excluding previous garnishments and voluntarily payments. The
magistrate stated: "The returned funds are in the amount
of $2, 378.00." The magistrate denied the parties'
requests for attorney fees on the third-party claim of
exemption. CBEI again appealed to the district court. The
district court affirmed the magistrate, concluding that
Acedo, as a third-party, had no standing to set aside the
judgment and was exempt from the judgment.Thereafter, the
district court awarded costs and attorney fees to Acedo
pursuant to I.A.R. 40 and I.C. § 12-120. CBEI appeals
the district court's decision affirming ...