Durham v. Somerset County et al

Filing 172

MEMORANDUM AND ORDER denying 170 Motion of defendant to Limit Application for Writ of Execution. Signed by Judge William M Nickerson on 4/14/2015. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JAMES “TROY” DURHAM
v.
ROBERT N. JONES

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Civil Action No. WMN-10-2534

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MEMORANDUM AND ORDER
Plaintiff and Judgment Creditor James “Troy” Durham was
awarded $1,112,200 in judgment by a jury against Defendant and
Judgment Debtor Robert N. Jones.

With attorneys’ fees and costs

and post-judgment interest, the judgment against Jones now
amounts to more than $1,500,000.

In an effort to recover his

judgment, Durham completed an Application for Writ of Execution,
ECF No. 169, against Jones’ real property at 26708 Mount Vernon
Road, Princess Anne, Maryland 21853.

As part of his

application, Durham checked the box indicating that the U.S.
Marshal, when levying the property, is to “exclude others from
access to it or uses of it.”

Durham has filed a Motion to Limit

Application for Writ of Execution, ECF No. 170, on the ground
that Maryland Rule 2-642(a) – which governs the levying of a
writ upon real property – “does not authorize the Plaintiff to
request that the U.S. Marshal exclude others from real
property.”

The Application for a Writ of Execution that Durham
completed is drafted pursuant to Maryland Rule 2-641(a).

Rule

2-641(a) requires that a writ include instructions to the
levying body (in this case, the U.S. Marshals) specifying:
(1) the judgment debtor’s last known address, (2) the
judgment and amount owed under the judgment, (3) the
property to be levied upon and its location, and (4)
whether the sheriff is to leave the levied property
where found, or to exclude others from access to it or
use of it, or to remove it from the premises.
Rule 2-641(a).

The Maryland Rules provide that, unless

expressly provided otherwise, property is defined as “real,
personal, mixed, tangible or intangible property of every kind.”
Maryland Rule 1-202(u).

Then, Rule 2-642 establishes the action

that the U.S. Marshal needs to take in order to successfully
levy the writ upon a judgment debtor’s property.

Here, the

Rules make a distinction between real property and personal
property, providing one method for the Marshal to levy upon real
property and four methods to levy on personal property.

Compare

Maryland Rule 2-642(a) (directing the Marshal to levy by
“posting a copy of the writ and the schedule in a prominent
place on the property”) with Maryland Rule 2-642(b) (providing
that the Marshal may levy by removing the property from the
premises, affixing a copy or the writ and schedule to the
property, and posting in a prominent place near the items, with
or without affixing individual labels).

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Jones argues that since

the Rule governing levy upon real property is silent as to
exclusion, Durham should not be allowed to direct the U.S.
Marshal to exclude him, his son, and his girlfriend from the
property on Mount Vernon Road.
The Maryland Court of Special Appeals, however, has held
that excluding a judgment debtor from levied real property is
permissible process.

In Humphrey v. Herridge, the Court

rejected the judgment debtor’s argument that the requirement of
directing the sheriff as to property disposition in Rule
641(a)(4) only applied to personal property.
(Md. Ct. Spec. App. 1995).

653 A.2d 491, 495

In reaching its conclusion, the

Court determined that Rule 2-641(a) intended to embrace both
personal and real property by its use of the generally defined
term of “property.”

Id. at 494.

Further, since “[a] writ of

execution may direct the sheriff to levy upon real or personal
property,” the judgment creditors “made proper use of the [levy]
process in a manner contemplated by law.”

Id. at 495.

Accordingly, Durham’s request to the Marshal to exclude others
from the Mount Vernon Road Property is permissible under the
Maryland Rules and Jones’ motion must be denied.
Accordingly, it is this 14th day of April, 2015, ordered
that:
(1)

Defendant Robert N. Jones’ Motion to Limit Application
for Writ of Execution, ECF No. 170, is DENIED; and
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(2)

The Clerk of Court shall transmit a copy of this
Memorandum and Order to all counsel of record.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

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