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Gerald-Esquire
Gerald-Esquire, Lawyer
Category: Consumer Protection Law
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Experience:  30 years of experience
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My wife was has been served a Motion to Claim Exempt

Customer Question

Hello, My wife was has been served a Motion to Claim Exempt Property. We live in NC. I am unsure how to properly complete this form. This is due to a credit card balance that was not paid.
Submitted: 8 months ago.
Category: Consumer Protection Law
Customer: replied 8 months ago.
I have been told that since her name is ***** ***** the cars that they cannot come after me for this. I have also been told to be careful about the designated exemptions. For example, our mortgage is only in my name, not my wife's.....Can they come after me for this credit card balance ? Should I list anything at all if she does not really own anything ? What about her Soc Security info and any Life Insurance info ? We are both in our 40's.
Expert:  Gerald-Esquire replied 8 months ago.

Hello,

Thank you for using Just Answer. I want to provide you the best service I can. Please feel free to ask any follow up questions you have.

I am an attorney with 30 years of experience; I hope to provide you information that will help you in resolving your question.

When a defendant loses a lawsuit and the plaintiff obtains a judgment, NC law offers significant protections to the defendant.

These protections are called exemptions and they protect property and money from being seized to satisfy the judgment.

If you were not party to the lawsuit personally than property that belongs only to you can not be seized. Also if you own property jointly as Husband and Wife (Called Joint Tenancy by the Entireties) that property can not be seized.

Property that your wife owns in her own name alone may be seized subject to the following exemptions:

$35,000 in equity in a residence (or $60,000 if the residence was owned with a now-deceased spouse);

To the extent that you do not use the $35,000 residence exemption, then up to $5,000 in equity in any property of whatever type;
$3,500 in equity in any one vehicle;
$5,000 in equity in household goods, plus $1,000 household goods for each dependent, up to a maximum additional amount of $4,000;
$2,000 in equity in tools or equipment that are used in a business or trade;
Health-related items, such as hospital beds, scooters, and the like;
Certain investment property, including certain life insurance policies, certain retirement plans, and certain college savings plans;
Money that comes from personal injury settlements, alimony, child support, TANF/Workfirst, workers’ compensation benefits, unemployment benefits, and sixty (60) days worth of your wages or earnings used to support the family.

Here is the form that is used to claim the exemptions:

http://www.nccourts.org/forms/Documents/927.pdf

Additionally, under federal law her Social Security may not be garnished.

So to summarize your property is not at risk. Her Social Security and Life insurance and other retirement is not at risk.

You should declare as much as you can in regard to her other property that meets the exemption criteria.

You may wish to include a statement that provides that she has no ownership in regard to the cars, the house etc. just to put the sheriff on notice.

Here is a link to the law:

http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_1c/gs_1c-1601.html

I hope the information I provide is useful to you. I want you to be comfortable and satisfied with my attempt to assist you. Please, if you have ANY follow up questions, feel free to ask. Please note that I am generally unavailable Friday evening through Sunday.

Please do not forget to give me a positive rating. It adds nothing to your costs but it helps me greatly. Thank you.

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Good luck.

Please note: Information is educational and not given as legal advice. Only your local attorney can give legal advice. I can't establish or accept an attorney-client relationship with you. All posts are available for public viewing.

Kind regards,

Gerald

Customer: replied 8 months ago.
Thank you.
When you say, 'under federal law her Social Security may not be garnished' , does that mean I do or do not have to claim that on the form ? As well, her 'life insurance and other retirement is not at risk' ....have to list , or does Federal law prohibit it ?
And, if I should declare as much as I can for her 'owned' property....if she does not own anything, or there is no paperwork advising same, do you put things like clothing, shoes, personal effects, that she does own ? What about household items, furniture, etc...?
I am asking because I was advised to not put anything down that we BOTH owned, like the house, rental property, cars (Since my name was only on the mortgage...The rental property is paid for and since its real property, it is in both of our names....The cars are only in my name as well.)
I am wondering because once you write it down, then they have something to look into....and I want to be sure that if I don't put anything down of real value (since my name is ***** ***** OR both our names are ***** *****), will they or can they go after our house or rental property?
Expert:  Gerald-Esquire replied 8 months ago.

Hello:

Thank you for the excellent follow up questions.

You do not need to list the Social Security or the Life insurance, they are statutorily exempt.

You do not have to list your property

You do not have to list property that is jointly owned by the "entireties"(Check the deed on the rental property).

There is no need to list the smalls (household goods) rather she can take the catch all exemption of $5,000 in equity in household goods, plus $1,000 household goods for each dependent, up to a maximum additional amount of $4,000. You just state "Household Goods $5,000 + $1000 for each dependent (counting you). So if you have three children + you the exemption is $9,000.00.

If the house is in your name only or joint by the entireties they can't put a lien on it. The same for the rental property. Check the deeds, but if you bought them as Husband and Wife that is how they should be deeded. (The deed will say "by the entireties or Husband and Wife or both).

Since you say there is little or nothing with her name on it, and she has up to the $9,000 household goods exemption. There probably isn't anything else.

But you should also state that all other property is either in your name or owned as Husband and Wife, because it is better to let them know up front that they can not seize the property rather than try to fight about it afterwards. I am not saying you have to list everything. Just attach a separate statement that says: "All cars, real estate, bank accounts are held solely by husband or are jointly held properties and therefore not subject to this judgment."

I hope this additional information is helpful to you.

Kind regards,

Gerald

(Please do not forget to rate me – click the five stars. It adds nothing additional to your costs, but it helps me greatly. Plus it is good Karma for you. Thank you.)

Customer: replied 8 months ago.
Ok, thank you.
Also, I only have to complete 1 of the 2 forms I received, correct ? I received Motion to Claim Exempt Property (Constitutional Exemptions) and Motion to Claim Exempt Property (Statutory Exemptions). My research advised I should go with the Statutory form.
Expert:  Gerald-Esquire replied 8 months ago.
that's fine.
Customer: replied 8 months ago.
Gerald, one more thing . I asked before but is it better to sign and submit both of those Motion forms, statutory and constitutional ? Thanks for assisting.
Expert:  Gerald-Esquire replied 8 months ago.
Based on the limited amount of assets she has it likely won't matter. I think submitting them both is fine. If something does not apply simply state none or N/A.
Good luck.
Gerald

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