Writ of Executions NC bank levy

[WhatMoney]

On the AOC-CV-415 form above, this is all it says about exempting earnings (quoted below). But where and what is this "prompt procedure" for doing the challenge? Since it's not on the form CV-415, do you attach an affidavit using 1-326 statute, or request an exemption hearing using AOC-CV-408? Since the form doesn't even include a line for exempt social security or unemployment benefits, there is clearly some other form or procedure used to recover your exempt bank account cash after the levy. Geez, NC has some screwed up legal procedures. Glad I live in a state where the court procedures are clear and the forms are complete. Damn NC lawyers must have done this for job security.

NOTE TO JUDGMENT DEBTOR: The Clerk of Superior Court cannot fill out this form for you. If you need assistance, you should talk with an
attorney. THERE ARE CERTAIN EXEMPTIONS UNDER STATE AND FEDERAL LAW THAT YOU ARE ENTITLED TO CLAIM IN ADDITION TO
THE EXEMPTIONS LISTED BELOW. These exemptions may include social security, unemployment, and workers' compensation benefits and earnings for your personal services rendered within the last 60 days. There is available to you a prompt procedure for challenging an attachment or levy on your property.

[catleg]

Yeah I see what you mean about that.
Sure looks like this court form was designed to obfuscate things.
The OP should probably have been served with some kind of notice about the prompt procedure; did she or he get anything?
(In fact this form should have been served on him/her).
Do you think the bank account could also be covered using the $5000 wildcard exemption on the AOC CV 415 form (paragraph 8)?
The OP can also make a written request for a hearing on the exemptions before the court clerk.
If nothing else I would shoot for that just to buy some time.
I guess there is no form for any of this (no surprise there, why make anything easy for debtors?)
On the other hand, no form means they have to accept pretty much anything written down. Good luck to them. :-)

[GoingDown]

This thread is a perfect example of why you should only keep as much money in a checking or savings account that you can afford to lose once someone files a lawsuit against you.

If you had been using cash instead of a checking / savings account right now you wouldn't be going through all of this right now.

If your employer offers paper checks, get them instead of direct deposit. Otherwise ask them if they will do the direct deposit to a pre-paid visa debit card and just make sure you withdraw the money promptly on pay day.

[flyinbroke]

My company offers up the payroll card. Never sees the inside of a bank, can go directly to the card. May be worth looking into, for those facing a suit.

[GoingDown]

My company offers up the payroll card. Never sees the inside of a bank, can go directly to the card. May be worth looking into, for those facing a suit.

Yes, if they offer that, definitely go for it. Great idea!

A creditor would have a difficult time ever figuring it out.

And once again, don't talk to creditors and collection agencies. That's how they get a lot of their information, which they will then turn around and use against you.

[DinD]

Hello everyone. I'm still spending a lot of time on the phone.

I spoke with my bank today, however was refused access to their legal department as they do not speak to customers ?! Anyway, the customer service person told me that the levy may be lifted if the sheriff submits a "letter of release" to them. I am not sure what the letter entails.

I also spoke with the clerk of courts, I have filled out the form that you guys mentioned. The clerk told me that all they do is pass the paperwork to the sheriff's office and it's on him to properly attempt to collect. She wasn't quite getting what I was asking her and told me I did not need to submit an affidavit, and that nobody ever before has had the problem I'm having atm. Then I tried asking in the following manner: What would one do if they feel that exempt property was taken from them. She said they could not give out legal advice. I responded that I don't need legal advice, but simply procedural advice as to any forms I may need to submit. She continued to say- you need to speak with the sheriff's office.

At this point I've decided to write a letter and fax/email the sheriff's office as our phone conversations were not getting anywhere. I used a lot of pertinent info from this thread which has been very very helpful. It appears that indeed, the sheriff is the one that can fix this. I've been calling the sheriff's office-much to all the receptionists' chagrin (I think everyone in the courthouse and sheriff's office pretty much hates my guts at this point)

This is all very interesting to me. First of all the court clerk not knowing what one might need to do in this case, and further saying this has never happened before- I find this unbelievable.

To the people saying don't keep money in your bank account: I agree. It was unwise. However, I will keep trying to figure this out. I really think they themselves do not know what the law means, and it is one big blaming game/minimum responsibility charade.

[WhatMoney]

That court clerk sounds like a real dimwit. You should ask the sheriff, since the court seems to be totally stupid, how you claim an exemption for Social Security Retirement benefits, when a judgment creditor illegally seizes a bank account that is only from social security direct deposit and is therefore always exempt from levy.

It appears whatever procedure you would use to release SS funds, exempt under both state and federal laws, would be the same as you should use to release your 60 days earnings.

There is this form AOC-CV-408 that gives notice for a court hearing to get a judge to order the release of exempt property:
NOTICE OF HEARING
ON EXEMPT PROPERTY
http://www.nccourts.org/forms/Documents/254.pdf

But this is the form the court sends to you once the hearing time is determined. There appears to be no form to request a hearing. You may have to reopen the case to get a hearing, more attorney work.

Someone is giving you the giant runaround here - these releases are not that uncommon. I'll bet any consumer attorney could get it done with a phone call, after you pay him his fee of course. Your sheriff doesn't sound too honest either. If he's really the one to release exempt funds, he damn well knows how to do it in the case of social security funds. He probably gets a kickback from the attorneys for doing so, and since you don't have a good old boy attorney, he's acting dumb. I hope you keep at this - it would be worth it to pay one of those good ol' boy attorneys his $400 fee to get your $4000 back. Sounds like typical state corruption game to me.

[catleg]

Here is some more information:

The key question for the moment appears to be "were you served with the notice of exemptions" form before they froze the account"? Your next question to the sheriff might be for proof of service of the AOC-CV-406 form.

Linky

The following is a summation of the process that is required for the plaintiff or judgment creditor to pursue the execution of a judgment awarded against a defendant or judgment debtor:

After the Small Claim or District Court case is heard and a judgment is obtained, it is entered in the public record. The plaintiff (judgment creditor) is required to wait 30 days before beginning the collection process on a District Court judgment and 10 days on a Small Claim judgment.

After the waiting period has passed the plaintiff may come to the Clerk of Superior Court's Office Civil Division and pick up a Notice of Rights to Have Exemptions Designated. This information must be read very carefully to ensure that all of the necessary steps are taken to execute judgments.

Forms Available On-Line
Adobe Acrobat Reader required

For Judgments prior to January 1, 2006
AOC-CV-406 and AOC-CV-407

For Judgment after January 1, 2006
AOC-CV-406 and AOC-CV-415

These forms must be officially served either by certified mail or the Sheriff's Office.

SERVICE BY THE SHERIFF’S OFFICE: A fee is required by the Sheriff’s Office for service. The current fee is $15.00 (subject to change by the Legislature). The Sheriff Office accepts cash, certified check, or money order. The Sheriff's fee applies to the service of the, Writ of Possession, and Writ of Executions. You can contact the Sheriff’s Office at (910) 323-1500 to verify these fees.

When the defendant/debtor is an individual: After the defendant is served they have 20 days to return the document to the Clerk of Superior Court's Office.
When the defendant/debtor is a company: The 20 days is waived and the creditor may collect on the company immediately.

The Clerk thereafter determines which property is exempt and which property can be collected and provides notice to the defendant and plaintiff. When the plaintiff receives exempt property/judgment amount, the execution process begins.

Forms Available On-Line
Adobe Acrobat Reader required

Writ of Execution
AOC-CV-400

The execution amount is cross referenced with the amount granted by the judge.

And also, here is an appellate case dealing with the exemption process.

And this is the opinion in Harris v Hinson from 1987 that is always cited.

[WhatMoney]

There is nothing in the above procedure that explains or allows you to exempt wage and other exempt government payments. Only the paragraph that these other exemptions exist, and basically to "ask an attorney".

All I can think of is an affidavit attached to the CV-406 and CV-415 documents that you return to the clerk of court. Or perhaps you need to request a court hearing to claim these common wage type exemptions. That hardly seems like the "Prompt Procedure" they refer to. The lack of information about the most common form of exemptions from a bank levy seems to be deliberate. I have never seen such obfuscation in other states' court procedures.

The Clerk thereafter determines which property is exempt and which property can be collected and provides notice to the defendant and plaintiff. When the plaintiff receives exempt property/judgment amount, the execution process begins.

Whoever the county clerk that DinD spoke to should be read what her duties are, as quoted above, since she apparently has no clue.

[catleg]

I think the key is the "Notice of Rights to Have Exemptions Designated" form. (apparently called NORDS). It should have been served on OP at least 20 days before execution of the levy. From there the clerk should be contacted with the 415 form or an affidavit about the 60 days wages. Not sure what happens if OP tossed these papers in the trash and ignored them. However I would file an affidavit with the clerk ASAP just to try and cover the bases.

[WhatMoney]

I think the key is the "Notice of Rights to Have Exemptions Designated" form. (apparently called NORDS). It should have been served on OP at least 20 days before execution of the levy. From there the clerk should be contacted with the 415 form or an affidavit about the 60 days wages. Not sure what happens if OP tossed these papers in the trash and ignored them. However I would file an affidavit with the clerk ASAP just to try and cover the bases.

Yeah, maybe the OP can explain the dates and timing of the NORDS he received. He did receive and return the forms (CV-406 and CV-415) he said. But he did not exempt 60 days of wages because he didn't know how to and the NORDS form gives no clue. Even the mention of these common exemptions was hidden in fine print on CV-406 and CV-415.

The judgment was from last summer. Say they mailed him and he returned the form 6 months ago after the judgment. First there was no place to exempt wages on the form. And second he was out of work and had no wages to claim exemption on.

So what's he supposed to do if that was the case? I do not think judgment creditors send out the NORDS form 20 days before they are going to levy an account. Apparently they can send it out, get a reply, and wait 6 months before they actually get the writ of garnishment. So if your situation changes after you reply to the form, you lose all rights to exemptions, even Social Security?

Talk about a law designed to screw the debtor! I guess that's why they say on the form: "You may wish to consider hiring an attorney to help you with this proceeding to make certain that you receive all the protections to which you are entitled".
Note the word "hiring" as in spend $$$ to do something rather simple. I still believe the NC attorneys lobbied for this procedure to increase their income and to screw the public.

[catleg]

You won't get any argument from me there.

In my opinion the NJ web site of pro se help is a lot like this, just enough to give the casual observer the illusion of a level playing field.

[DinD]

Hello everyone.

I have filled out the 415 form last year, but have not filled out the 406 form, nor have I gotten a 406 form. I'm in NY (I work here) so I'm having a friend rummage through papers/mail in NC and find anything and everything from the sheriff's office. When I spoke with the clerk last time they said the 406 form is what you get if you need help filling out your exemptions. My next mission is to get a hold of the sheriff and ask him about the 406 form and fax him and the clerk an affidavit. From what I understand I need to list my expenses and say that I need the money to support myself and get it notarized. I keep trying the Legal Aid office, but their volume must be insane. I emailed 5-6 civil litigation attorneys last night now that the picture is a bit clearer for me, and if I can't get this resolved by myself and if I get a positive response from some or the attorneys I'm considering hiring one next week.

You guys have been incredibly helpful, thank you!

[WhatMoney]

Hello everyone.

I have filled out the 415 form last year, but have not filled out the 406 form, nor have I gotten a 406 form. I'm in NY (I work here) so I'm having a friend rummage through papers/mail in NC and find anything and everything from the sheriff's office. When I spoke with the clerk last time they said the 406 form is what you get if you need help filling out your exemptions. My next mission is to get a hold of the sheriff and ask him about the 406 form and fax him and the clerk an affidavit. From what I understand I need to list my expenses and say that I need the money to support myself and get it notarized. I keep trying the Legal Aid office, but their volume must be insane. I emailed 5-6 civil litigation attorneys last night now that the picture is a bit clearer for me, and if I can't get this resolved by myself and if I get a positive response from some or the attorneys I'm considering hiring one next week.
You guys have been incredibly helpful, thank you!

You don't fill out and return the CV-406 form. It just accompanies the CV-415 form that you did fill out and return last year. I'm quoting the heart of the 406 form below, just to make this thread more complete. It's easy to Google it of course (NC CV-406 and it pops right up.)

So it does look like you filled out the exemption form last summer, and now they are just getting around to the bank levy. That procedure is rather ass backwards, and makes it nearly impossible to protect exempt assets that you didn't have a year ago.

In most (all?) other states, the exemption form is included with the notice of garnishment/levy after your account is frozen. You then have 10-20 days to fill out the exemption form and return it to the judgment creditor, the sheriff or summons officer, and the court. If the creditor does not object to your claimed exemptions, the court or sheriff or creditor (depends) contacts the bank and releases the funds as exempt. If the creditor objects to your written exemption claim, the court will set a hearing date and let a judge decide. That's the NORMAL procedure. You get a chance to recover exempt property after it is garnished or levied. This NC law just blows. Now you likely will need an attorney to argue the case and hope the judge agrees. But you may have also lost your exemption rights because you didn't claim them a year ago, when you didn't have anything to exempt. Unbelievable! And it doesn't help that you are handling this from NY state. I hope you are not a damned Yankee, or you're screwed.

NOTICE OF RIGHT TO HAVE EXEMPTIONS DESIGNATED
AOC-CV-406
NOTE: Attach a copy of AOC-CV-407 if the judgment was filed before 1/1/06. For judgments filed after 1/1/06, attach AOC-CV-415.

A judgment has been entered against you in the case captioned above in which you have been ordered to
a) pay money over to the judgment creditor or
b) turn over various household belongings to the judgment creditor.

The judgment creditor (person who has the judgment against you) is now seeking to collect this judgment and has asked me to give
you notice of your rights. Under the Constitution and laws of North Carolina, you have the right to exempt from the collection of the
judgment certain of your property (in other words, to keep it from being taken from you). If you wish to keep your exempt property, you
MUST fill out the attached Motion To Claim Exempt Property and mail or take it to the Clerk of Superior Court at the address listed
below. You MUST also mail or take a copy to the judgment creditor at the address listed below. The law gives you another option of
requesting, in writing, a hearing before the Clerk to claim your exemptions. If you make a written request for a hearing, you will be notified
of the time and place of the hearing when you may claim your exemptions.

It is important that you respond to this Notice no later than twenty (20) days after it was served on you because you will lose valuable
statutory rights if you do nothing. If you do not respond, you will give up your right to statutory exemptions and the judgment creditor
may be able to take any or all of your property to satisfy the judgment. You have certain constitutional rights you may claim if
you give up your statutory rights. You may wish to consider hiring an attorney to help you with this proceeding to make certain that
you receive all the protections to which you are entitled.

NOTICE TO JUDGMENT DEBTOR: THERE ARE CERTAIN EXEMPTIONS UNDER STATE AND FEDERAL LAW THAT YOU ARE ENTITLED
TO CLAIM IN ADDITION TO THE EXEMPTIONS LISTED IN THE MOTION TO CLAIM EXEMPT PROPERTY THAT IS ENCLOSED WITH THIS
NOTICE. These exemptions may include social security, unemployment, and workers' compensation benefits and earnings for your personal services rendered within the last 60 days. There is available to you a prompt procedure for challenging an attachment or levy on your property.