Olsen v. State

2016 UT App 194

THE UTAH COURT OF APPEALS

BRADLEY J. OLSEN,
Appellant,
v.
STATE OF UTAH AND UTAH STATE TREASURER,
UNCLAIMED PROPERTY DIVISION,
Appellees.

Opinion
No. 20150490-CA
Filed September 15, 2016

Third District Court, Silver Summit Department
The Honorable Kara Pettit
No. 140500267

P. Bryan Fishburn, Attorney for Appellant
Sean D. Reyes, Michael K. Green, and Thom D.
Roberts, Attorneys for Appellees

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and DAVID N. MORTENSEN concurred.

VOROS, Judge:

¶1 This appeal involves a judgment creditor’s attempt to
obtain his judgment debtor’s unclaimed property held by the
State. Appellant Bradley J. Olsen obtained a judgment of just
under $10,000 against a judgment debtor. The Unclaimed
Property Division of the Utah State Treasurer’s Office (the
Division) held just under $275,000 belonging to the judgment
debtor. With an eye on the larger prize, Olsen held an execution
sale and purchased the judgment debtor’s rights to the
unclaimed $275,000. When the Division refused to pay Olsen the
entire $275,000, Olsen sued. The district court granted summary
judgment to the Division. We affirm.
Olsen v. State

BACKGROUND

¶2 This case began with a county tax sale of a building lot in
Summit County. After satisfying the outstanding tax obligation
and related expenses, the County, as required by law, forwarded
the excess proceeds of the sale—nearly $275,000—to the
Division. In addition to owing the County back taxes, the
property owner owed his homeowners association $3,776.50. The
homeowners association assigned the claim to Olsen, and Olsen
obtained a default judgment against the property owner in the
sum of $9,697.28.

¶3 Based on that judgment, Olsen arranged for a constable to
conduct an execution sale. The constable purported to sell the
property owner’s rights in the $275,000 held by the Division,
described as ‚all claims and rights, including any right of action,
to all value of funds held by the Utah State Treasurer Unclaimed
Property Division, ID #2265464.‛ Olsen, the sole bidder at the
sale, purchased the property owner’s interest in the $275,000 by
credit-bidding the amount of his judgment plus fees and costs, a
total of just over $10,000.

¶4 Olsen then filed a claim with the Division for the entire
$275,000. The Division denied the claim on the ground that
Olsen was not ‚the sole owner‛ of the $275,000, but rather a
judgment creditor and therefore entitled only to the amount of
his judgment. Olsen sought judicial review in the district court.
On cross-motions for summary judgment, the district court ruled
for the Division and against Olsen. The court ruled that Olsen
could not attach or execute on the funds held by the State under
controlling law, specifically Utah Code section 63G-7-603
(LexisNexis 2014), and Fisher v. Fisher, 2003 UT App 91, 67 P.3d
1055.

ISSUES AND STANDARD OF REVIEW

¶5 On appeal, Olsen asserts five claims to support his
position that he is entitled to the entire $275,000 held by the

20150490-CA 2 2016 UT App 194
Olsen v. State

Division. But Olsen’s claims all represent various facets of a
single contention, namely, that the district court erred in ruling
that a judgment creditor must proceed against the judgment
debtor’s unclaimed property by filing a claim pursuant to the
Unclaimed Property Act and not by writ of execution. ‚An
appellate court reviews a trial court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.‛
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and
internal quotation marks omitted).

ANALYSIS

¶6 The Unclaimed Property Act creates an interest-bearing
trust fund known as the ‚Unclaimed Property Trust Fund.‛ Utah
Code Ann. § 67-4a-405(1) (LexisNexis 2011). The fund consists of
all abandoned or unclaimed property received under the Act,
including proceeds from the sale of abandoned property. Id. The
fund is administered by a deputy state treasurer known as the
Administrator. Id. § 67-4a-102(1). At the end of each fiscal year,
the Administrator pays any legitimate claims, pays enumerated
costs and fees, estimates the amount of money needed to pay
future claims, transfers any unclaimed restitution for crime
victims to the Crime Victim Reparations Fund, and transfers the
remaining balance to the Uniform School Fund. Id. § 67-4a-405.

¶7 The principal question on appeal is whether, as the State
contends, the Act creates an exclusive method for a judgment
creditor to obtain the unclaimed property of the judgment
debtor. We conclude that it does.

¶8 The Act provides that ‚*w+henever property is paid or
delivered to the administrator under this act, the owner may
receive from the administrator the principal amount turned over
to the state.‛ Id. § 67-4a-401. It broadly defines owner to include
‚a creditor, claimant, or payee in the case of other intangible
property.‛ Id. § 67-4a-102(21)(c). And it defines intangible property

20150490-CA 3 2016 UT App 194
Olsen v. State

to include money. Id. § 67-4a-102(15)(a)(i). Read together, these
sections provide that a creditor may claim and receive from the
Administrator the principal amount of the debt owed to that
creditor.

¶9 We agree with the State that the claims procedure created
by the Unclaimed Property Act constitutes a creditor’s exclusive
remedy to obtain the debtor’s unclaimed property. The
Unclaimed Property Trust Fund is a creature of statute. The Act
creates the Fund and specifies who may make a claim against it,
how much they may claim, and how they make the claim. We
accordingly view the Unclaimed Property Act as designed to
‚fill the void that existed at common law‛ and thus to be ‚a
complete and self-contained solution‛ to the problem of
unclaimed property. Cf. Adkins v. Uncle Bart's, Inc., 2000 UT 14,
¶ 16, 1 P.3d 528 (citation and internal quotation marks omitted)
(addressing the Dramshop Act). And indeed, in the present case,
the remedy provided by the Act allows Olsen to claim the entire
amount of the judgment debtor’s obligation to him.

¶10 Not only has the legislature provided a straightforward
and adequate method for a judgment creditor to make a claim
against a judgment debtor’s unclaimed property, it has
foreclosed other avenues of relief, including a writ of execution.
Section 63G-7-603(2) provides, ‚Execution, attachment, or
garnishment may not issue against a governmental entity.‛ Utah
Code Ann. § 63G-7-603(2) (LexisNexis 2014).

¶11 Olsen argues that he ‚did not proceed by writ of
execution, attachment, or garnishment against the Division.‛
Instead, he maintains, ‚he elected to proceed against [the
judgment debtor], in [the judgment debtor’s+ capacity as a
judgment debtor, and execute on a right that [the judgment
debtor] owned.‛ At the execution sale Olsen purchased ‚all
claims and rights, including any right of action, to all value of
funds held by the Utah State Treasurer Unclaimed Property
Division, ID #2265464.‛ Olsen draws a distinction between the
right ‚to all value of funds‛ and the funds themselves. In our

20150490-CA 4 2016 UT App 194
Olsen v. State

view, this distinction cuts too fine. The Division is holding the
judgment debtor’s money: specifically, the $275,000 generated
from the tax sale on the judgment debtor’s property. At the
execution sale, Olsen argues, the constable purported to sell that
money at a steep discount to Olsen, who then demanded it from
the Division.

¶12 True, the money belongs to the judgment debtor, not the
State. But section 603 applies whether the State owns the
property or merely possesses it: ‚We have previously held that a
writ of garnishment served on a government agency to obtain
property in the possession of, but not owned by, that
government agency ‘issues’ against that entity for purposes of
section 63G-7-603.‛ Asset Acceptance LLC v. Utah State Treasurer,
2016 UT App 25, ¶ 12 n.8, 367 P.3d 1019 (citing Fisher v. Fisher,
2003 UT App 91, ¶¶ 13–14, 67 P.3d 1055 (holding that an
attorney lien could not issue against property held by a state
entity but owing to a third party)). Accordingly, we conclude
that for purposes of subsection 63G-7-603(2), the writ of
execution issued against the Division violates that statute.1

¶13 Olsen maintains that he stands in the same position as he
would if the judgment debtor had assigned to him the right to
collect the cash held by the Division, in which case, he asserts, he
would be entitled to claim the entire $275,000. We disagree. As

1. In any event, a writ of execution is not the appropriate writ for
obtaining a judgment debtor’s funds in the hands of a third
party. A writ of execution is available to seize ‚property in the
possession or under the control of the defendant.‛ Utah R. Civ.
P. 64E(a). A writ of garnishment is available to seize ‚property of
the defendant in the possession or under the control of a person
other than the defendant.‛ Id. R. 64D(a). The distinction matters
here, because the funds Olsen sought to execute on belonged to
the judgment debtor, but were not in the judgment debtor’s
possession or control. Consequently, they were not the proper
subject of a writ of execution.

20150490-CA 5 2016 UT App 194
Olsen v. State

explained above, subsection 63G-7-603(2) prohibits executions
on property owned by private individuals but possessed by the
Division. Accordingly, the statute governs the present case. But
the statute does not prohibit assignments of property owned by
private individuals but possessed by the Division. And because
no such assignment occurred here, we express no opinion on
that circumstance.

¶14 Finally, Olsen contends that any challenge to the
execution sale constitutes an impermissible collateral attack on
his judgment remedies. We have not in the past viewed the
application of section 63G-7-603 as an impermissible collateral
attack on a post-judgment writ, and we decline to do so now.
See, e.g., Asset Acceptance, 2016 UT App 25, ¶¶ 11–14. To do so
would render the statute a nullity, and we avoid ‚*a+ny
interpretation which renders parts or words in a statute
inoperative or superfluous.‛ Monarrez v. Utah Dep't of Transp.,
2016 UT 10, ¶ 11, 368 P.3d 846 (alteration in original) (citation
and internal quotation marks omitted).

CONCLUSION

¶15 For the foregoing reasons, the judgment of the district
court is affirmed.

20150490-CA 6 2016 UT App 194