Cite as George v. Kephas, Kosrae St.(1992)

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     This matter comes before me on plaintiff's motion for order in aid of judgment directing defendant to pay his debt plus interest accrued and/or order defendant's house sold to the highest bidder with proceeds going to plaintiff to satisfy this judgement debt. Hearing was held on February 6, 1992 on the motion for Order in Aid of Judgment.

     This Court issues the following opinion and denies plaintiff's motion for Order in Aid of Judgement.


     Defendant purchased, through an oral loan agreement, a pick up truck from plaintiff in the amount of five thousand and fifty dollars. Defendant promised to pay plaintiff in one month for said truck. Defendant defaulted on the oral loan. Judgment was rendered on September 22, 1987 in favor of plaintiff for $5,759. The judgment allowed defendant to pay $100 a month

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until the debt was satisfied. Defendant stopped making payments and is currently residing in Ebeye, Marshall Islands.


     A.      Although In Rem jurisdiction can exist against an absent defendant if it were shown that the land and house were owned solely by defendant. Plaintiff has not proven ownership of this land.

     B.      Forced sale of the land in question would create an undesirable and unjust result.

C.      There is no adequate basis for this court to issue a writ of execution to sell the land and house to satisfy plaintiffs' judgment debt.


     A.      Kosrae State Code Section 6.2410 (Exceptions), subsection (3) states:

     " .... the following are exempt from attachment and execution:

(3) interest in land, except that the Court may order sold or transferred pursuant to an order in aid of judgment, an interest held solely by a judgment debtor in his own right if the Court finds that justice requires and that after the sale or transfer the debtor would have sufficient land remaining to support himself and those persons directly dependent on him according to custom and law;"

     This section excludes interests in land unless it is shown that the land is owned solely by defendant. No evidence was presented to indicate that defendant is the sole owner of this parcel of land. In fact, plaintiff offered no evidence to prove ownership of the house and land at all. Plaintiff cannot expect the court to consider issuing a writ of execution to sell said land without undisputed assurance of proof of ownership from the Land

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Commission. Further, this court could not issue a writ of execution for land belonging to any of defendants family or land owned jointly by defendant and anyone else (including another member of his family). This court finds that it is unjust for any of defendants family to suffer for defendant's judgment debt. Plaintiff did not adequately identify defendant's assets at the most recent hearing.

     This section of the Kosrae State Code explains that land may be sold only if sufficient land remains to support defendant and his dependents. Therefore, even if plaintiff had shown that defendant solely and individually owns the land, only a portion of it could have been sold. Defendant may continue to hold enough land to support himself and his dependents. It is not clear whether the court could partition the land so that defendant and his dependants could retain a sufficient portion for their needs.

     B.       Forced sale of said land would create an unjust and undesirable result. Section 6.2409 (Order in aid of judgment) specifically speaks to notice to defendant and subjecting defendant to an examination by the court in order to determine a just method to satisfy the debt. This defendant has not received notice or been examined by the court. It appears that the purpose of this statute is to allow defendant an opportunity to participate in a hearing in order to arrive at a fair and equitable remedy. The following language of Kosrae State Code illustrates this intent:

Section 6.2409 (Order in aid of Judgement) subsection (1) states, inapplicable part,

" ....After notice to the opposite party, the Court holds a hearing on the question of the debtor's ability to pay ...."

     Subsection (2) of the same section states,

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     " ....debtor is subject to examination by the court."

     Since defendant has never received notice of this claim against him, this court applies the concept held in Lonno v. Trust Territory (III) 1 FSM Intrm. 279 (1983). That is, the courts generally disfavor default judgments and readily set them aside rather than deprive a party of the opportunity to contest a claim on the merits.

     The loss of defendants family home would be an undesirable result. This court will not penalize defendant's family for defendant's unpaid debt. In Hadley v. Board of Trustees 3 FSM Intrm. 14 (Pon. S. Ct. Tr. 1985), the court denied an application for default judgment based on custom and tradition. The relief sought was for the court to issue a writ of mandamus compelling respondent to void the lease to a lot and eject occupants therefrom. The court felt that application of the rule would yield an undesirable result.

     Section 6.2313 (Procedure for absent defendant) states that as to the absent defendant, an adjudication affects only the property or status which is the subject of the action. The subject of this action is properly the pick up truck, not land of undetermined ownership.

     C.      In a case before Pohnpei State Supreme Court, it was held that a lessor of a vehicle was required to bear the consequences of his failure to repossess a rented vehicle from lessee. Phillip v. Aldis, 3 FSM Intrm. 33, 38 (Pon. S. Ct. Tr. 1987). This case implies an inherent duty on the part of the lessor to repossess the vehicle from delinquent lessee or lessor loses out on his claim.

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     The most appropriate remedy for plaintiff would have been to repossess the pick up truck shortly after defendant breached the oral agreement. It is unclear from the facts why this was not attempted and what in fact has become of the said vehicle. Therefore, in keeping with the Phi holding, this court finds that plaintiff's case is without merit for failing to repossess the truck. It is Pohnpeian custom for one to reap the fruit of one's misdeed. In other words, it was the lessor's own fault for not repossessing the vehicle from the lessee. This court finds that Kosrae State also holds such a custom.

     Since it appears that the pickup truck is no longer available to repossess, the next logical remedy for plaintiff under these circumstances would be a garnishment of defendants wages. However, a garnishment would be unenforceable since defendant is now living in Ebeye, Marshall Islands. Even if a garnishment were ordered, the court is not assured that authorities in the Marshalls would be willing to enforce the order.

     In, Bank of Guam v. Eliwise 4 FSM Intrm. 150 (Pon 1989) the court stated that even though there were no provision for garnishment in Pohnpei state law nor any national statute explicitly providing for garnishment, garnishment of wages is an acceptable means for enforcing an unpaid judgment.

     Bank of Guam further states that the courts power to issue writs of garnishment is clearly discretionary. When garnishment is warranted, then anything beyond what is reasonably necessary for the defendant to support himself and his dependents can be garnished.

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     Although In Re Pacific Island Distributing Co. 5 FSM Intrm 576 (Pon 1988), states that Creditors with judgments more than 10 days old are entitled to writs of execution upon request, other case law indicates that writs of execution will not be granted on an automatic basis, but only when it has been shown that judgment creditors have seriously explored the possibility of satisfying the judgement through other means in order to avoid bankruptcy or economic hardship. In re Mid-Pacific Construction Co., Inc. 3 FSM Intrm. 292 (Pon 1988). In the case before us, it has not been shown that plaintiff made any effort to repossess the vehicle or collect in a timely fashion.

     Finally, this court applies the concept of Koike v. Ponape Rock Products Inc. 3 FSM Intrm 57. It is customary, in Pohnpeian traditional culture, that each wrongdoer bears the consequences of his own fault. Therefore, we could not hold defendant's family responsible for defendant's debts. And plaintiff must be held responsible for his own inaction in not repossessing the vehicle, putting the loan agreement in writing, and seeking redress earlier.


     In summary, plaintiff did not attempt to repossess the truck shortly after defendant breached his oral agreement. Plaintiff did not explore, in a timely fashion, other means such as garnishment of wages so as not to create an economic hardship. Defendant has had no actual notice of the proceeding. Forced sale of land and penalizing defendant's family would produce an undesirable and unjust result. Plaintiff's own inaction precludes his recovery.

     Plaintiff did not show that defendant solely and individually owns the house and land that they are requesting be sold. This court cannot consider

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forcing the sale of the house and land without an an undisputed assurance of defendant's individual ownership.

     In conclusion, since there is no adequate basis to issue an order in aid of judgement for which a writ of attachment could attach to the property In Rem, there is no need to issue yet another order directing Defendant to pay this judgement debt. The original judgment is still enforceable. Plaintiff may instruct public safety to serve judgment on defendant when he returns to Kosrae.


     Based upon the reasoning contained in the opinion filed herewith, Plaintiffs' motion for an order in aid of judgement directing defendant to pay his debt plus interest accrued and/or order defendants house sold to the highest bidder with proceeds going to plaintiff to satisfy his judgment debt is hereby denied.

     SO ORDERED, this 1st day of December ,1992

                    Lyndon L. Conrnelius
                    Chief Justice

     Entered on this 1st day of December, 1992.

     Clerk of Court