Mike Smith d/b/a Wasilla Concrete v. Raymond Kofstad, individually and d/b/a Busch Concrete, and Marguerite Kofstad, 206 P.3d 441 (April 24,2009)

Smith obtained a default judgment against Raymond Kofstadt, d/b/a Busch Concrete for $41,589.41 in September 1995 which was recorded the next month in the Palmer Recording District where Raymond and Marguerite owned a home as tenants by the entirety. Raymond died in January 2001. Almost ten years after the original judgment, Smith sought the permission of the Court to execute on the judgment required by AS 09.35.020 if more than five years have elapsed after entry of judgment and no previous execution has been issued. The reason given by Smith for failure to previously execute was that Raymond Kofstad had no assets. The District Court rejected this argument finding that there had been no attempt to find assets. The Superior Court affirmed.

The Supreme Court aflirmed on an alternative ground: because the ownership of the property upon which the judgment creditor sought execution passed by operation of law to the judgment debtor’s spouse upon the judgment debtor’s death, the effort to execute is futile. While the judgment debtor is alive, the judgment creditor may take action to sever a tenancy by the entirety by obtaining a levy and sale of the judgment debtor’s interest in the property. The purchaser at the sale may have the property partitioned or the individual’s interest severed. The Court footnotes the possible application of the homestead exemption and expresses no opinion on when in the execution process a tenancy by the entirety is actually severed.

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