When a Tennessee sheriff serves a levy of execution on a debtor's bank account, can the sheriff charge the $40 levy-of-execution fee or only the $20 fee for collecting money to satisfy a judgment?

Plain-English summary

Representative Karen D. Camper asked which sheriff fee applies when a sheriff serves a levy of execution on money sitting in a bank account: the $40 fee in Tenn. Code Ann. § 8-21-901(a)(2)(A) for "levy of an execution on property," or the $20 fee in subsection (B)(i) for "collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process."

The AG concluded the $40 fee applies. Funds in a bank account are still "property" of the judgment debtor for execution purposes, so a levy on those funds is a levy of execution on property. When two statutory provisions could both apply, the specific controls the general (State v. Davis, 173 S.W.3d 411 (Tenn. 2005)). Subsection (A) addresses the specific situation of "a levy of an execution"; subsection (B) is the more general catch-all. The $20 fee in (B) applies to collection attempts that are not properly characterized as a levy of execution, such as a pure garnishment.

The AG flagged a separate practical wrinkle in footnote 2: funds deposited into a bank account are typically not the depositor's personal property anymore but a chose in action against the bank for the deposit. So in many cases the proper process to reach those funds is supplemental proceedings (garnishment of the bank) rather than a true execution levy. Whether $40 or $20 applies in a given case turns on the actual process the sheriff uses.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Tenn. Code Ann. § 8-21-901(a)(2). Sets sheriff fees for executing process on money and property.

• Subsection (A): $40 "[f]or a levy of an execution on property or levy of an attachment or other process to seize property for the purpose of securing satisfaction of a judgment yet to be rendered or for executing a writ of replevin or writ of possession."
• Subsection (B)(i): $20 "[f]or collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process, in civil cases each time collection is attempted."

What counts as a "levy of execution." Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437, 443 (Tenn. Ct. App. 1994), describes a levy of execution as "the officer's act of appropriating or singling-out the debtor's property for the satisfaction of a debt." Under Tenn. R. Civ. P. 69, a levy is effective "when a sheriff with a writ of execution exercises control over the judgment debtor's personalty."

Funds as property. Tenn. Code Ann. § 26-1-103 authorizes enforcement of money judgments by execution, and treatises confirm that a writ of execution may be exercised upon any legal or equitable interest of the judgment debtor in any type of property.

Specific controls general. State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005), restates the well-settled canon that "specific statutory language will control over general statutory language."

The bank-account complication (footnote 2). Under general property law, money deposited into a general bank account becomes the bank's property; the depositor holds only a chose in action against the bank for the deposit. Johnson v. Serv. Mgmt., 459 S.E.2d 900, 902 (S.C. 1995). The traditional rule is that a depositor's bank funds can be reached only through supplemental proceedings such as garnishment, not direct execution levy. So in practice, the choice between the $40 and $20 fee turns on whether the sheriff's process is properly characterized as a levy of execution on the deposited funds (treated as the debtor's property) or as a garnishment of the bank.

Common questions

Q: A sheriff served a levy on a bank account to collect on my judgment. How much can the sheriff charge?
A: According to this opinion, $40 if the process is properly a levy of execution on the funds as property of the judgment debtor. If the process used is more accurately a garnishment of the bank without a true execution levy, the $20 fee under § 8-21-901(a)(2)(B) applies.

Q: Are bank account funds really "property" for execution purposes?
A: For purposes of § 8-21-901(a)(2)(A), the AG read funds in a bank account as property of the debtor that can be levied upon. The opinion acknowledges the property-law complication that deposited money technically becomes a chose in action against the bank, which is why some collection actions on bank funds use garnishment instead of a true execution levy.

Q: Why does the specific-controls-general rule matter here?
A: Subsection (B)(i) literally reaches "collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process," which on its face would include a sheriff's execution on a bank account. Subsection (A) is more specific to "a levy of an execution." Under State v. Davis, the specific provision (A) governs when both could literally apply.

Q: When does the $20 fee apply?
A: For collection attempts that are not properly characterized as a levy of execution, including garnishment and other processes used in addition to or instead of an execution levy.

Q: Is this answer the same if the sheriff serves the levy multiple times?
A: The opinion does not directly address per-attempt charging, but subsection (B)(i) speaks in terms of "each time collection is attempted." Counties should look to the literal terms of the statute and any local rule.

Citations and references

Statutes and rules:

• Tenn. Code Ann. § 8-21-901(a)(2)(A), (B)(i)
• Tenn. Code Ann. § 26-1-103
• Tenn. R. Civ. P. 69

Cases:

• State v. Davis, 173 S.W.3d 411 (Tenn. 2005)
• Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437 (Tenn. Ct. App. 1994)
• Johnson v. Serv. Mgmt., 459 S.E.2d 900 (S.C. 1995)

Secondary authority:

• 30 Am. Jur. 2d Executions and Enforcement of Judgments §§ 128, 129, 167 (2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-047.pdf

Original opinion text

Determining the Fees to which a Sheriff is Entitled for a Levy of Execution

Question

Tennessee Code Annotated § 8-21-901(a)(2) establishes the fees to which a sheriff is entitled for executing particular types of processes on money and property. May a sheriff charge the $40 fee provided for a levy of execution on property when the sheriff serves a levy of execution on funds held in a bank account?

Opinion

Yes.

ANALYSIS

Tennessee Code Annotated § 8-21-901 sets out the various fees to which a sheriff is entitled for the performance of particular functions. Several provisions of § 8-21-901 address the fees to which a sheriff is entitled for collecting money or seizing property to satisfy a judgment. Specifically, § 8-21-901(a)(2) provides:

(A) For a levy of an execution on property or levy of an attachment or other process to seize property for the purpose of securing satisfaction of a judgment yet to be rendered or for executing a writ of replevin or writ of possession $ 40.00

(B)(i) For collecting money to satisfy a judgment, whether by execution, fieri facias, garnishment or other process, in civil cases each time collection is attempted $ 20.00

When a sheriff serves a levy of execution on money belonging to an individual, including funds held in a bank, his actions fall within the plain meaning of paragraph (A). A levy of execution on specific funds belonging to an individual is a levy of execution on "property." See Tenn. Code Ann. § 26-1-103 ("All judgments and decrees of any of the judicial tribunals of this state for money may be enforced by execution."); 30 AM. JUR. 2D Executions and Enforcement of Judgments § 128 (2017) ("A writ of execution may be exercised upon any legal or equitable interest possessed by the judgment debtor in any type of property[.]"). Accordingly, as long as the levy is properly characterized as the "levy of an execution" within the meaning of § 8-21-901(a)(2)(A), a sheriff may charge a $40 fee for providing this service.

Under paragraph (B) of § 8-21-901(a)(2), a sheriff is entitled to a $20 fee for each "attempt[]" to "collect[] money to satisfy a judgment." A levy of execution that a sheriff uses to collect funds to satisfy a judgment would also appear to fit within the more general language of paragraph (B). But paragraph (A) is a specific statutory provision governing the appropriate fee "[f]or a levy of an execution," and, as such, controls the more general provision of paragraph (B). See State v. Davis, 173 S.W.3d 411, 415 (Tenn. 2005) ("[S]pecific statutory language will control over general statutory language."). Paragraph (A) thus provides the appropriate fee for a levy of execution: $40. And Paragraph (B) provides for a $20 fee for other attempts to collect money to satisfy a judgment that are not properly characterized as a levy of execution, including garnishment and other processes employed by a sheriff in addition to or instead of a levy of execution.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Karen D. Camper
State Representative
32 Legislative Plaza
Nashville, TN 37243

¹ A "levy of execution is the officer's act of appropriating or singling-out the debtor's property for the satisfaction of a debt." Keep Fresh Filters, Inc. v. Reguli, 888 S.W.2d 437, 443 (Tenn. Ct. App. 1994); see also 30 AM. JUR. 2D § 167 (2017) ("The levy of a writ of execution is an act in the course of a judicial proceeding, which is the process whereby a sheriff or other state official empowered by a judicial directive seizes or brings within his or her control a judgment debtor's property for the purpose of satisfying a judgment."). Under Rule 69 of the Tennessee Rules of Civil Procedure, a levy is effective "when a sheriff with a writ of execution exercises control over the judgment debtor's personalty."

² Typically, "money deposited by a judgment debtor into a general account cannot be reached through execution and levy but only through supplemental proceedings." 30 AM. JUR. 2D Executions and Enforcement of Judgments § 129 (2017). That is because "funds on deposit . . . are no longer the personal property of the depositor; instead the depositor has a chose in action against the bank for recovery of the deposit." Johnson v. Serv. Mgmt., 459 S.E.2d 900, 902 (S.C. 1995). Accordingly, when a sheriff seeks to satisfy a judgment through funds held by a bank account, the manner in which a bank is holding those funds and the particular process or processes used to levy or seize those funds will determine whether the appropriate fee is $40 for a levy of execution or $20 for an attempt to collect money more generally.