Can a circuit court clerk refuse to docket a certified copy of a federal bankruptcy court judgment because it isn't labeled an 'abstract of judgment'?

Plain-English summary

The Clerk of the Winchester Circuit Court asked whether he could refuse to docket a certified copy of a final judgment order from a U.S. Bankruptcy Court because that document was titled a "certified copy" rather than an "abstract of judgment."

The AG concluded that the clerk has no such authority. So long as the certified copy contains the information that § 8.01-449 requires (court and case number, date and amount, interest from-date, costs, party names with required identifiers, alternative value of any specific property, credits applied), the certified copy qualifies as an authenticated "abstract of judgment" for docketing purposes under § 8.01-446. The clerk has a mandatory duty to docket conforming documents, not a discretionary one.

The reasoning starts with what a circuit court clerk is. The clerk is a constitutional officer under Article VII, § 4 of the Virginia Constitution, but the clerk has no inherent powers. The duties of the office are prescribed by general law or special act. A clerk has wide latitude to manage office operations, but if a statute specifies how a duty must be performed, the clerk must comply.

Section 8.01-446 directs the clerk to "docket, without delay" any qualifying judgment "rendered in this Commonwealth by any other court of this Commonwealth or federal court" when an interested person delivers an authenticated legible abstract of it. Section 8.01-477 explicitly extends this to federal district court judgments. The Code does not define "abstract of judgment," so the AG used the plain meaning: Black's Law Dictionary defines it as a "copy or summary of a judgment that, when filed with the appropriate public office, creates a lien on the debtor's nonexempt property." A certified copy of a federal court judgment fits that definition. The label on the document does not control.

The clerk does retain explicit statutory authority to reject documents in two circumstances: if the abstract is illegible, or if the judgment fails to contain the information § 8.01-449 requires. Outside those grounds, the duty to docket is mandatory.

Currency note

This opinion was issued in 2010. 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.

The judgment-lien statutes in Title 8.01 have been amended since 2010. The list of required identifiers in § 8.01-449 has changed over time as the General Assembly has adjusted privacy and identification requirements. Anyone presenting or reviewing a foreign judgment for docketing today should look at the current text.

Common questions

What's the practical effect of docketing a judgment in a Virginia circuit court?
Docketing creates a lien on the debtor's real estate in that locality, allowing the creditor to collect against the debtor's land. Without docketing, the judgment exists but does not encumber Virginia real property.

Is a federal bankruptcy court judgment treated differently from a state court judgment for docketing?
Section 8.01-477 puts federal court judgments on the same footing as state court judgments for docketing purposes. They go on the same docket, under the same rules, with the same requirements.

What if a clerk thinks the document doesn't look like a standard abstract?
Form is not the test. Content is. If the document contains the information § 8.01-449 demands and is properly authenticated and legible, it must be docketed. The clerk does not get to require a particular template.

Can a clerk reject a document for technical issues?
Yes, but only on the two grounds the statute identifies: illegibility, or missing required information under § 8.01-449. Anything else, the clerk's duty is to docket "without delay."

Why did the clerk ask this in the first place?
The opinion doesn't supply the specific dispute, but the question is recurring. Bankruptcy court judgments come out of federal court in their own format, which often does not match the standard Virginia abstract form. Creditors and clerks sometimes disagree about whether that matters. The AG's answer is that it doesn't, as long as the substance is right.

Background and statutory framework

The constitutional and statutory framework:

• Va. Const. art. VII, § 4. Establishes the office of clerk of court; duties prescribed by general law or special act.
• § 8.01-446. The core docketing statute. Directs clerks to docket "without delay" qualifying judgments on delivery of an authenticated legible abstract. Reserves clerk authority to reject only for illegibility or non-conformance with § 8.01-449.
• § 8.01-449(B). Specifies the contents required in an abstract: court and case number; date and amount; interest from-date; costs; party names with addresses, dates of birth, and last four digits of SSN for parties against whom judgment is entered; alternative value of specific property; amount and date of credits applied.
• § 8.01-477. Federal court judgments docketed in the same manner as Virginia state court judgments.

Plain meaning of "abstract of judgment": A "copy or summary of a judgment that, when filed with the appropriate public office, creates a lien on the debtor's nonexempt property." (Black's Law Dictionary.) The definition is content-based, not format-based.

Mandatory language: the opinion treats the use of "shall" in § 8.01-446 as imposing a mandatory, affirmative duty to docket conforming documents.

Citations

• Va. Code § 2.2-505
• Va. Const. art. VII, § 4
• Va. Code Ann. § 8.01-446 (Supp. 2010)
• Va. Code Ann. § 8.01-449 (Supp. 2010)
• Va. Code Ann. § 8.01-477

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-083-Whittle.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

September 17, 2010

The Honorable Terry H. Whittle
Clerk of Court
Winchester Circuit Court
Frederick-Winchester Judicial Center
5 North Kent Street
Winchester, Virginia 22601

Dear Mr. Whittle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the docketing procedure provided by § 8.01-446, which requires the deliverance of "an authenticated legible abstract" of judgment, allows a circuit court clerk to refuse to docket a certified copy of a final judgment order issued by a U.S. Bankruptcy Court when such a document is presented to the clerk's office.

Response

It is my opinion that § 8.01-446 requires the clerk of court to accept such a certified copy, provided the copy otherwise provides the information required by § 8.01-449.

Applicable Law and Discussion

Article VII, § 4 of the Constitution of Virginia establishes the office of "a clerk, who shall be clerk of the court in the office of which deeds are recorded" and mandates that the duties of the office "shall be prescribed by general law or special act." As a general rule, circuit court clerks have no inherent powers, and the scope of their powers must be determined by reference to applicable statutes. There are several hundred specific statutes that prescribe the duties of the clerk, which include the recording of deeds, orders, financing statements and other instruments. The manner in which these duties are performed are a function of management, tradition, custom and local practice. Considerable deference is given to decisions made by clerks and, "in the absence of a constitutional or statutory provision to the contrary, constitutional officers have exclusive control over the operation of their offices." The clerk, as a constitutional officer, "is free to discharge his prescribed powers and duties in the manner in which he deems appropriate" unless limited by law. If a statute specifically directs the manner in which a clerk performs a duty, the clerk must comply with the statute.

Section 8.01-446 provides, in pertinent part, that "[t]he clerk of each court of every circuit shall ... docket, without delay, any judgment for a specific amount of money rendered in this Commonwealth by any other court of this Commonwealth or federal court, when he shall be required to do so by any person interested, on such person delivering to him an authenticated legible abstract of it[.]" Section 8.01-477 provides further that "judgments and decrees rendered in the circuit court of appeals or a district court of the United States within this Commonwealth may be docketed and indexed ... in the same manner and under the same rules and requirements of law as judgments and decrees of courts in this Commonwealth."

The Code does not define "abstract of judgment." I therefore accord the term its plain meaning. Black's Law Dictionary defines it simply as a "copy or summary of a judgment that, when filed with the appropriate public office, creates a lien on the debtor's nonexempt property." Similarly, an "abstract" is defined as a "statement summarizing the important points of a text," or a "concise statement of a text, esp. of a legal document; a summary." As such, entitling a document a "certified copy" rather than an "abstract of judgment" does not render it insufficient for docketing pursuant to § 8.01-446.

The Code, however, does require that the document delivered for docketing contain certain information. Pursuant to § 8.01-449(B), the following, where applicable, is necessary for the clerk to record the judgment: 1) the court and case number in which the judgment was entered; 2) the date and amount of the judgment; 3) the time from which the judgment bears interest; 4) any costs; 5) the names of all the parties as well as the addresses, dates of birth and last four social security number digits of all parties against whom judgment has been entered; 6) the alternative value of any specific property recovered by it; and 7) the amount and date of any credits applied to the judgment. Thus, provided the certified copy of judgment from the bankruptcy court contains the required information, it qualifies as an abstract of judgment under the Code of Virginia.

I note further that, although the Code does grant clerks of court the explicit authority to reject presented documents and to refuse to record them, that authority is limited to instances where either the clerk finds the "abstract" to be illegible or the judgment does not comply with the provisions of § 8.01-449. Otherwise, the Code provides that the clerk of court "shall docket, without delay" conforming documents so that the clerk has an affirmative duty to docket an authenticated judgment when presented by an interested person.

Conclusion

Accordingly, it is my opinion that, so long as the information required by § 8.01-449 is contained in the certified copy of judgment from the bankruptcy court, that certified copy constitutes an authenticated "abstract of judgment" for purposes of § 8.01-446, so that the clerk of court is required to docket it according to standard procedures.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General