Why Aren't Debtors Claiming Exemptions After Judgments?

[ryan]

I'm puzzled...As I understand it, civil judgment exemptions in my state are the same as exemptions for BK. And, they allow $4000 in wild card assets to be exempt. They can be bank acct funds or other real or personal property.

But when I am in court, (which is alot) I see debtor after debtor, who has a judgment against them going to court to plead for release of their levied bank funds. They almost beg the judge to not let the creditor have the frozen funds....and they lose. At least every time I've been there.

Are these people just uninformed? ..why aren't they asserting this apparent right to have these funds (at least up to $4K) protected? ...most of the levy orders in court I've seen have been for amounts under $4000.

[tyson24]

I did not fill out the paperwork in an effort to ignore my situation, which I have been doing for a long time now. If I would have had good advice from an attorney instead of bad, I would have fought the summons in the first place. I guess I had my head under a rock. With them garnishing me now, I am forced to pay attention. I was just stupid.

[Freddy03]

Which they had that exemption in FL...LOL

I think the only rule we have for bank levys are they have to wait 6 months to levy if it's a joint account.

[Freddy03]

my mistake I just looked up FL law and 1k (either property or wages) can be exempted

[GoingDown]

Ryan, a lot of times the debtor is ignorant about the exemptions. And unfortunately, Justices of the Peace (small claims court) and even judges (superior court) are often ignorant about the exemptions, and even worse, many of them are biased against debtors and against anyone representing themselves in court.

They certainly make no effort to help the debtor by informing them of their exemption amounts, nor will they lift a finger to assert the defense of the statute of limitations even when it should be obvious to the judge that the debt is so old it is obviously beyond the statute of limitations. They leave that up to the debtor.

As always, the best way to protect your money is to never leave it in a checking account or savings account when someone files a lawsuit against you.

[tyson24]

The day I got the judgments, all direct deposits were ceased. We now cash checks and only deposit what is needed into my account and pay bills from that.

[treehugger1]

I think goingdown has it correct. Either the debtors or the judges are ignorant. It is probably up to the debtor to declare his/her exemption and state the correct code.

I hear what you are saying about the wild card. Oregon has an exemption that states up to $7500 of exempt cash is still exempt when placed in a bank account. I think it is stupid to test this by keeping exempt funds in an account, but to each his/her own. I also hear of folks in my county who have 25% wage garnishment and have also had their bank accounts levied. Much of the time the money in their bank accounts is exempt (under the $7500 rule) but they simply don't know this. I sense that in my district the judges do know this, but they choose to take an "impartial" point-of-view. The defendant needs to know and exercise their right. It is not up to the judge to educate them.

I also agree that many local judges simply do not understand exemptions in their states. I would guess that prior to the 2005 BK rules changes, issues of exemptions probably seldom came up in consumer cases in local courts. These were handled in the bankruptcy courts. With more and more bankrupt people willing to walk away and not declare BK, the more ignorance we are likely to see from both consumers and the benches. I'm not saying this is bad. It just means there is a paradigm shift that needs attention.

[catleg]

I think tree and goingdown are correct, in civil court the presumption is that you are required to assert your own rights (and even then you may get walked all over). Here in NJ there was an item on the calendar for the commmittee of the Special Civil Part (debt collection court, for all practical purposes) stating "should we as part of the garnishment process explicitly advise defandants of their statutory exemption amount of $1000". The conclusion was NO, everything is just fine as it is now.

[seFlaDude]

Florida has far more than $1000 exemption,
I. FLORIDA CONSTITUTION
A. Art X, Sec 4 (a) - Homestead - 160 acres outside a municipality or ½ acre in a
municipality.
B. Art X, Sec 4 (b) - $1,000.00 in value of personal property.
II. FLORIDA STATUTES CHAPTER 222
A. Florida Statute 222.05 - Mobile home on leased land.
B. Florida Statute 222.11 - Wages due the head of a family.
C. Florida Statute 222.14 - Cash surrender value of life insurance policies and annuities.
D. Florida Statute 222.18 - Disability benefits.
E. Florida Statute 222.201 - Property listed in 11 USC §522(d)(10).
F. Florida Statute 222.201 - Social security, unemployment compensation, veteran’s
benefits, alimony and child support.
G. Florida Statute 222.21 - U.S. pensions, tax qualified retirement, profit sharing and stock
plans.
H. Florida Statute 222.22 - Florida prepaid college trust fund, medical savings accounts.
I. Florida Statute 222.25 - Motor vehicles, professional prescribed health aids, EIC tax
refunds, additional $4,000.00 of personal property for those not claiming or benefitting
from homestead Exemption.
III. OTHER FLORIDA STATUTES
A. Florida Statute 112.215 - Government Employee benefits.
B. Florida Statute 112.363 - Public employee’s health insurance.
C. Florida Statute 121.131 - Public employee retirement benefits.
D. Florida Statute 122.15 - County and state officers and employees retirement benefits.
E. Florida Statute 175.241 - Fireman retirement benefits.
F. Florida Statute 185.25 - Police retirement benefits.
G. Florida Statute 238.15 - Teacher retirement benefits.
H. Florida Statute 440.22 - Worker’s compensation.
I. Florida Statute 497.456 - Pre-need funeral contract, consumer protection trust fund.
J. Florida Statute 620.153 and 620.8307 - Partner’s interest in partnership property.
K. Florida Statute 632.619 - Fraternal benefit society benefits.
L. Florida Statute 769.05 - Damages for injury or death at work, hazardous occupation.
M. Florida Statute 960.14 - Crime victim’s compensation awards.
IV. FLORIDA COMMON LAW EXEMPTIONS
A. Property by entireties.
B. Beneficial interest in a spendthrift trust.

[justbroke]

It is up to a Debtor, or defendant, to claim his/her rights under the law. It's not up to the Judge to remind them that F.S. 222.25(4) or some other statute gives them certain rights. It's simply a problem with the pro se defendant who doesn't understand the process or law.

It's a shame, but in Florida, many people go to their foreclosure hearing and beg the judge that they need their home. The judge asks them, "well, have you been paying", and of course, the answer is "no". Then the hammer comes down and the foreclosure judgment is entered. Had they said, "I object to this proceeding because the Movant is not a party in interest and lacks locus standi to prosecute this complaint."... a different outcome would ensue.

Is that the Judge's fault?

[ryan]

Is that the Judge's fault?

No, I see what you're saying. I guess my tendency to to do volumes of research has helped me, and others lack of research is hurting them. Knowledge, if acted upon can be very powerful, as they say.

I have seen judges in some cases appear to do a bit of 'hinting' to the defendant as to a course of action that might help them. Some defendants catch the judge's drift and answer the 'right' way. Many however, are tone deaf and answer in ways that usually seal their fate. ...its just too bad.

[Freddy03]

Florida has far more than $1000 exemption,
I. FLORIDA CONSTITUTION
A. Art X, Sec 4 (a) - Homestead - 160 acres outside a municipality or ½ acre in a
municipality.
B. Art X, Sec 4 (b) - $1,000.00 in value of personal property.
II. FLORIDA STATUTES CHAPTER 222
A. Florida Statute 222.05 - Mobile home on leased land.
B. Florida Statute 222.11 - Wages due the head of a family.
C. Florida Statute 222.14 - Cash surrender value of life insurance policies and annuities.
D. Florida Statute 222.18 - Disability benefits.
E. Florida Statute 222.201 - Property listed in 11 USC §522(d)(10).
F. Florida Statute 222.201 - Social security, unemployment compensation, veteran’s
benefits, alimony and child support.
G. Florida Statute 222.21 - U.S. pensions, tax qualified retirement, profit sharing and stock
plans.
H. Florida Statute 222.22 - Florida prepaid college trust fund, medical savings accounts.
I. Florida Statute 222.25 - Motor vehicles, professional prescribed health aids, EIC tax
refunds, additional $4,000.00 of personal property for those not claiming or benefitting
from homestead Exemption.
III. OTHER FLORIDA STATUTES
A. Florida Statute 112.215 - Government Employee benefits.
B. Florida Statute 112.363 - Public employee’s health insurance.
C. Florida Statute 121.131 - Public employee retirement benefits.
D. Florida Statute 122.15 - County and state officers and employees retirement benefits.
E. Florida Statute 175.241 - Fireman retirement benefits.
F. Florida Statute 185.25 - Police retirement benefits.
G. Florida Statute 238.15 - Teacher retirement benefits.
H. Florida Statute 440.22 - Worker’s compensation.
I. Florida Statute 497.456 - Pre-need funeral contract, consumer protection trust fund.
J. Florida Statute 620.153 and 620.8307 - Partner’s interest in partnership property.
K. Florida Statute 632.619 - Fraternal benefit society benefits.
L. Florida Statute 769.05 - Damages for injury or death at work, hazardous occupation.
M. Florida Statute 960.14 - Crime victim’s compensation awards.
IV. FLORIDA COMMON LAW EXEMPTIONS
A. Property by entireties.
B. Beneficial interest in a spendthrift trust.

Thanks - I guess I was just posting as to my own situation what can be exempted. I did not know that Government Wages are exempt. Learn something new everyday Thanks again.

[WhatMoney]

Thanks - I guess I was just posting as to my own situation what can be exempted. I did not know that Government Wages are exempt. Learn something new everyday Thanks again.

Government wages are not exempt - only some benefits are exempt, same as in private industry. Benefits are not wages.

[SweetGeorgia]

Even Georgia has exemptions outside of bankruptcy. But exemption is not a defense to a garnishment here. Your son-in-law's creditor seized your disability payment because his name's on your bank account? Too bad. Your defenses are (1) amount is incorrect (2) garnishment not served properly or (3) underlying judgment was unlawful.

I was amazed to learn that other states let you claim exemptions ahead of time (what a smart and efficient plan! Would never fly here.)

[HHM]

Bottom line, there is a difference between "having rights" and "enforcing rights". The U.S. court system is adversarial in nature, meaning each side is responsible for asserting their own rights and claims; no one is going to do it for you. The debtor has rights to exemptions, but must "claim" those exemptions. In the end, the fact that anyone would let it get that far is the disturbing part, 99% of those people should be filing BK, they are just poorly informed about their options.