In the Gospel of John, we read about the story of Jesus and Lazarus. Jesus and Lazarus were very close friends but Lazarus became sick and died. After being in the grave for four days, Jesus raised Lazarus from the grave. John 11: 1-44. It is a wonderful story of the love of two friends; of power and hope. Jesus’ actions were miraculous, and there was cause of great celebration since what was once dead was alive again. Unfortunately, there is no such miracle that can resurrect an expired judgment lien. Once a judgment lien has expired, it must be recreated.
The life of judgment lien is tied directly to the life of the judgment itself. Without a judgment, a judgment lien does not exist. It is well-settled that a judgment lasts only ten (10) years from the date it was first issued. Judgments can be extended or renewed for an additional ten- (10) year period provided the judgment creditor moves the court, within ten years of the judgment’s entry, for an “order requiring the judgment debtor to show cause why the judgment should not be extended.” Tenn.Rules Civ.Proc., Rule 69.04.
To preserve the judgment, the creditor merely needs to file the motion for show cause order within ten-year period, not that debtor be served with show cause order before this ten-year period has expired. Tenn.Rules Civ.Proc., Rule 69.04. In re Hunt, 323 B.R. 665 (W.D. Tenn. 2005). Furthermore, the extension of the judgment takes effect from the expiration of ten years from the effective date of the original judgment rather than from the date of the court order granting the extension. Cook v. Alley, 419 S.W.3d 256 (Tenn. Ct. App. 2013). However, if the judgment has expired, the creditor cannot revive the judgment by filing a motion; instead the creditor must file a scire facias action for revival. A scire facias action will lie to revive a judgment but “it is considered in law an action and it is treated as a new suit and not merely a continuation of the former; it is a judicial writ founded on some matter of record, a recognizance, judgment, etc., on which it lies to obtain execution, or for other purposes; and, because the defendant may plead thereto, it is considered in law a new action.” 16 Tenn. Jur. Judgments and Decrees § 72 (1998).
While an action for scire facias is tantamount to a revival of a judgment, it is a discreet judgment in and of itself; distinct from the prior judgment it seeks to revive. It is true that once a scire facias is granted that it equates to a revival of the original judgment, but it does not equal a revival or resurrection of a judgment lien. See McIntosh v. Paul 74 Tenn. 45 (1880).
Prior to 2000, a judgment lien lasted only for three (3) years from the date it was created or the expiration of the ten- (10) year life of the judgment, whichever occurred first. As of May 17, 2000, T.C.A. § 25-5-101(b) extended the life of a judgment lien from three (3) years to ten (10) years (or the remaining length of the judgment). Therefore, the judgment lien properly created lives only as long as the judgment; no more.
So the question now becomes how to ensure that the judgment lien is preserved. First, the creditor must make sure that the underlying judgment is protected and extended. This is accomplished through the aforementioned motion to show cause why the judgment should not be extended. Once the motion is granted, the creditor must record a copy of the order extending the judgment in the records of the register of deeds where the creditor originally recorded the judgment to create the lien. T.C.A. § 25-5-101(b). By doing this, the creditor preserves not only the lien but the lien’s priority.
Now we turn to the more serious scenario of what happens if the judgment has expired? As stated, the judgment lien does not survive the death of the judgment itself. If this happens, the creditor is forced to file a scire facias action to first revive the judgment. Once the judgment is revived, the creditor must recreate the judgment lien. Tennessee case law holds that a judgment lien is not extended by a revival of the underlying judgment. See, e.g., Davidson v. Shearon, 1 Tenn. Cas. 304 (1874). As a result, the entire process of recording an abstract with the scire facias and original judgment must take place. The problem here is that the creditor, by having to “start over”, loses the priority it previously had before the judgment expired. Loss of priority can be devastating since any other liens created subsequent to the creation of the judgment lien would accede to a higher place in the pecking order.
It is critical for creditors to monitor their judgments to make sure that they do not expire and risk the loss of priority. One never knows when a debtor will acquire new found wealth or property, and while resurrection of a judgment is possible, there is no resurrection for the judgment lien; only recreation with a significantly high price tag.
For more information about this topic or any others, please contact Ronn Steen. He can be reached at (615) 465-6010 or by email at [email protected]