are there asset exemptions on a judgment? (in CO)

[tacomeat]

ive never really found a clear answer on this.

ive had a couple people tell me they are more or less the same as for BK. they seemed to know what they were talking about so i felt comfortable with that. but i had my first consult with a BK attny the other day and i posed this same question and he said there are no formal exemptions and that creditors can go after anything i have including the following -

the 2 things i am worried about are my ira (have almost $10k in there)
and my car (have about $4500 of equity, but still owe $6k and am current on
pmts).

does anyone know if a creditor judgment can access my IRA or can force me to sell my car? (in colordao)

thanks!

[HHM]

They are EXACTLY the same. State exemptions first and foremost apply to regular collection, but the exemptions also apply to BK. Conceptually, a BK trustee steps into the shoes of your creditors, thus the BK trustee can do whatever your creditors could do. So whatever exemptions apply to creditors, (your state exemptions, specifically), also apply to judgments and creditors outside the BK system.

HOWEVER, with a judgment, the burden is on YOU to actually claim the exemption. For example, they CAN take your car (with a proper court order); you would need to go to court to claim the exemption and get it back.

[tacomeat]

They are EXACTLY the same. State exemptions first and foremost apply to regular collection, but the exemptions also apply to BK. Conceptually, a BK trustee steps into the shoes of your creditors, thus the BK trustee can do whatever your creditors could do. So whatever exemptions apply to creditors, (your state exemptions, specifically), also apply to judgments and creditors outside the BK system.

HOWEVER, with a judgment, the burden is on YOU to actually claim the exemption. For example, they CAN take your car (with a proper court order); you would need to go to court to claim the exemption and get it back.

thanks. so what youre saying is that if i get summoned to a court hearing for a judgment preceding, i just need to "declare" something like - "there is a $5000 exemption for cars in colorado (i think) and since the equity i hold in that is less - you cant take it (and then bring my last loan statement and the NADA valuation of my car?). do i need to demonstrate a need to keep it? i dont work so i dont have a job to go to.

and on the ira - i also just show up to declare its my intent to keep it, and since it is exempt they cant have it?

or - is it that i show up and declare what all of my assets are (including the above and what little personal property i own) and then a judge rules that "based on the asset exemptions of the state of colorado, i find this person "judgement proof" ... or whatever.

(you can tell i have no idea what im talking about.. sorry... and thanks for the help)

[tacomeat]

met with another bk attny on a free consult and he better reassured me that i should be ok as long as i show up and stipulate what my assets are - it should be deemed that the car and IRA are untouchable to creditors so that will end that (though i imagine i will have some judgment levied against me for any future assets/earnings that might arise before i file BK).

and if thats how it shakes out, that will be fine, cuz then i can prolong filing BK until my debt becomes older (and hopefully avoid the AP).

[OHBOY]

"tacomeat":
I do think that 'WhatMoney's' quote is very important, namely: "HOWEVER, with a judgment, the burden is on YOU to actually claim the exemption. For example, they CAN take your car (with a proper court order); you would need to go to court to claim the exemption and get it back."

I have been reading, reading & yes... reading... on the same topic pertaining to FL Civil Procedures, and while I don't know how it works in CO, around here the Sheriff, with a writ of execution in hand (following a judgment) CAN indeed take personal belongings, actually even household items, and from what I understand from my 'studies' (lol)...even all of my non filing spouses exempt belongings in that same household, with the law stating:
"No inventory or schedule to exempt personal property from sale shall be accepted prior to a levy on the property. "....which I find pretty unnerving....(still hoping that I read that wrong...)

[desperatio]

I live in a state that allows both federal or state exemptions in BK. I've been wondering you can use federal exemptions in the case of judgments, as my state's exemptions are fairly small for personal property.

[ryan]

"tacomeat":
"No inventory or schedule to exempt personal property from sale shall be accepted prior to a levy on the property. "....which I find pretty unnerving....(still hoping that I read that wrong...)

Am I interpreting that right? ... they would FIRST have to take your stuff BEFORE you could submit a list of Exempt property??? Boy, I think I would check into that more.

[OHBOY]

Quote by 'ryan': "Am I interpreting that right? ... they would FIRST have to take your stuff BEFORE you could submit a list of Exempt property??? Boy, I think I would check into that more."

'ryan': I checked it out for MY state, namely Florida...I have no clue as to how it works for any other state...
Below is the what's stated in the Fl Statute. Especially NOTE # 7 BELOW....
(Also note that I am not an attorney, merely a debtor trying to find out/ learn about what's 'on the books')

222.061 Method of exempting personal property; inventory.--
(1) When a levy is made by writ of execution, writ of attachment, or writ of garnishment upon personal property which is allowed by law or by the State Constitution to be exempt from levy and sale, the debtor may claim such personal property to be exempt from sale by making, within 15 days after the date of the levy, an inventory of his or her personal property. The inventory shall show the fair market valuation of the property listed and shall have an affidavit attached certifying that the inventory contains a correct list of all personal property owned by the debtor in this state and that the value shown is the fair market value of the property. The debtor shall designate the property listed in the schedule which he or she claims to be exempt from levy and sale.
(2) The original inventory and affidavit shall be filed with the court which issued the writ. The debtor, by mail or hand delivery, shall promptly serve one copy on the judgment creditor and furnish one copy to the sheriff who executed the writ. If the creditor desires to object to the inventory, he or she shall file an objection with the court which issued the writ within 5 days after service of the inventory, or he or she shall be deemed to admit the inventory as true. If the creditor does not file an objection, the clerk of the court shall immediately send the case file to the court issuing the writ, and the court shall promptly issue an order exempting the items claimed. Such order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell any nonexempt property under the levy according to law.
(3) If the creditor files an objection, he or she shall promptly serve, by mail or hand delivery, one copy on the debtor and furnish one copy to the sheriff who executed the writ. Upon the filing of an objection, the clerk shall immediately send the case file to the court issuing the writ, and the court shall automatically schedule a prompt evidentiary hearing to determine the validity of the objection and shall enter its order therein describing the exempt and nonexempt property. Upon its issuance, the order shall be sent by the court to the sheriff directing him or her to promptly redeliver to the debtor any exempt property under the levy and to sell the nonexempt property under the levy according to law.
(4) The court shall appoint a disinterested appraiser to assist in its evidentiary hearing unless the debtor and creditor mutually waive the appointment of such appraiser. The appraiser shall take and file an oath that he or she will faithfully appraise the property at its fair market value and that he or she will file a signed and sworn appraisal with the court as required by law. Notice of the time and place of the inspection of the property for the purpose of its appraisal shall be given by the appraiser to the debtor, creditor, and sheriff, at least 24 hours before the inspection is made. The appraiser shall be entitled to a reasonable fee as determined by the court for his or her services. The appraiser's fee shall be taxed as costs, but no costs shall be assessed against the debtor for the proceedings under this section if the debtor prevails on his or her claim of exemption. The court may require the creditor to deposit a cash bond, a surety bond, or other security, conditioned on the creditor's obligation to pay reasonable appraisal expenses, not to exceed $100.
(5) During the pendency of proceedings under this section, the sheriff shall safeguard the property seized under the writ, and the creditor shall deposit sufficient moneys with the sheriff to pay the cost of such safeguarding until the property is sold or redelivered to the debtor. When the sheriff receives a copy of a court order identifying which property has been declared exempt and which property has been declared not exempt and ordering the sale of the property not exempt from levy, he or she shall sell the property.
(6) The party who successfully maintains his or her claim at the time of the evidentiary hearing may be entitled to reasonable attorney's fees and shall be entitled to costs. The costs shall include, but not be limited to, appraisal fees, storage fees, and such other costs incurred as a result of the levy.
7) No inventory or schedule to exempt personal property from sale shall be accepted prior to a levy on the property.

[ryan]

Quote by 'ryan':
(6) The party who successfully maintains his or her claim at the time of the evidentiary hearing may be entitled to reasonable attorney's fees and shall be entitled to costs. The costs shall include, but not be limited to, appraisal fees, storage fees, and such other costs incurred as a result of the levy.
7) No inventory or schedule to exempt personal property from sale shall be accepted prior to a levy on the property.

I see what it says in #7, but I also notice #6, the burden on the loser in an action like this....seems it would not be so likely to occur anyway, since obviously exempt items, shown to be such, would cost the party falsely seizing them, atty fees, appraisal fees, storage costs etc.

Doesn't seem likely they would do it, knowing those consequences.

[currerbell]

Generally, collections are filed in general sessions/district court and a form Warrant in Debt/Summons (or whatever your state calls it) will issue. There will usually be instructions that detail what your exemptions are. Most states have these forms available online if you want to check them out.

As to the language, "levy" is a step in enforcing a judgment. Depending on your jurisdiction, it can simply mean the creditor calls the sheriff's office to execute on a writ (judgment, whatever), sheriff is sent to levy, which means he/she goes out to your residence and sees what you have. They will physically take what could be moved (usually) and keep it. If it is exempted, you get it back and creditor (usually) has to pay the costs of the levy. This is why some creditors will request that the sheriff only take certain thing into possession.

FWIW, if creditor wins at trial, it gets a judgment in its favor. X number of days later, that judgment becomes final. Creditor can then seek to enforce its judgment in a number of ways - garnishment, court-ordered payment, recording only, and levy and execution are the basic means of getting something out of the judgment. Most national creditors will post-judgment subpoena you into court to answer questions under oath about employment, assets, whatever. Unless, of course, you made it clear to them at trial that you are judgment-proof. Most jurisdictions will also allow a debtor to file a slow-pay motion - debtor provides proof of income and court will base a monthly payment thereon.

[currerbell]

Oh - and many states are now looking at adding a dependent exemption - NOT just limited to child support payments. In other words, standard exemption figures for each child in your household that are deducted from whatever your garnishable wages are. This is relatively recent, at least in southern states.