IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Boyd N. Boland

Civil Action No. 11-cv-02438-PAB-BNB

ALVIN MOSCH,

PATRICIA C. MOSCH, and

DAVID K. MOSCH, each individually and d/b/a MOSCH MINING COMPANY,

Plaintiffs,

v.

JOHN HENRY, a/k/a JOHN T. HENRY a/k/a JOHN L. HENRY,

UNITED STATES REAL ESTATE CORPORATION, and any one claiming by or through any

of the named persons,

Defendants.

______________________________________________________________________________

ORDER

______________________________________________________________________________

This matter arises on the plaintiffs’ Motion for Permission for Clerk to Issue Writ of

Execution [Doc. # 167, filed 5/28/2013] (the “Motion”), which is DENIED. 

According to the Motion, the plaintiffs received a judgment, including costs, in the

amount of $51,240.62, and a judgment lien has been perfected. In addition, the plaintiffs argue:

4. While FRCP 69 is silent on the proper procedure to be

followed, it does direct that the Clerk of the Court issue a Writ of

Execution upon application of the successful judgment creditor. 

Plaintiffs now seek this Court’s permission for such action by the

clerk of the court.

5. Plaintiffs have no other effective remedy at law.

Motion [Doc. # 167] at ¶¶4-5. Finally, the plaintiffs have attached a proposed form of Writ of

Execution directed to the United States Marshal for the District of Colorado commanding that

he:

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[L]evy upon the property, goods, chattels, lanes and tenements of

the above named defendants, John Henry, aka John T. Henry, aka

John L. Henry; and United States Real Estate Corporation, and

anyone claiming by or through any of the named persons, found in

your district to enforce the payment of the judgment obtained

against said defendants John Henry, aka John T. Henry, aka John

L. Henry; and United States Real Estate Corporation, and anyone

claiming by or through any of the named persons and in favor fo

the above-named plaintiffs Alvin Mosch, Patricia C. Mosch, and

David K. Mosch, in the principal sum of $49,300.00, with costs

taxed of $1940.62, together with interest of eight (8%) per annum

from the date of the entry of said judgment on April 10, 2013. 

Said judgment now remains unsatisfied on the records of this

office.

That you make a return of the Writ of Execution, showing in what

manner you have executed the same, and upon what property of

the defendants, you have made levy and/or money received. Also

you shall include you fees which shall be taxed as costs. That you

file this Writ with the Clerk of this Court within 90 days.

Writ of Execution [Doc. # 167-1]. 

The Motion [Doc. # 167] misapprehends post-judgment collection procedures. The

United States Marshal does not act as a private litigant’s investigator to locate and execute on a

judgment debtor’s property. To the contrary, Fed. R. Civ. P. 69 provides that “[t]he procedure

on execution--and in proceedings supplementary to and in aid of judgment or execution--must

accord with the procedure of the state where the court is located. . . .” Post-judgment exection in

Colorado is controlled by Rule 69, Colo. R. Civ. P., which includes elaborate and effective tools

for a judgment creditor to discover and execute on the property of a judgment debtor. The

plaintiffs here must comply with the Colorado execution procedures as they have been adopted

through Fed. R. Civ. P. 69.

IT IS ORDERED that the Motion [Doc. # 167] is DENIED.

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Dated May 30, 2013.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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