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Ray, Lawyer
Category: Legal
Satisfied Customers: 42310
Experience:  30 years in civil, probate, real estate, elder law
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I have been served with collection papers against a

Customer Question

I have been served with collection papers against a judgement for approx. $4000 worth of cc debt with Discover. Can they take my property ?
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Oh sorry NC
JA: Has anything been filed or reported?
Customer: I was served notice the other day from the Nash county sheriffs office. It was dated the 19th. It is asking me if I wish to exempt certain property.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Nope
Submitted: 8 months ago.
Category: Legal
Expert:  Ray replied 8 months ago.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Expert:  Ray replied 8 months ago.

Yu can exempt $35k in house equity, if you have more than that they can force a sale.

Here are your exemptions

§ 1C-1601. What property exempt; waiver; exceptions.

(a) Exempt property. - Each individual, resident ofthis State, who is a debtor is entitled to retain free of the enforcement ofthe claims of creditors:

(1) The debtor's aggregate interest, not to exceed thirty-five thousand dollars ($35,000) in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor; however, an unmarried debtor who is 65 years of age or older is entitled to retain an aggregate interest in the property not to exceed sixty thousand dollars ($60,000) in value so long as the property was previously owned by the debtor as a tenant by the entireties or as a joint tenant with rights of survivorship and the former co-owner of the property is deceased.

(2) The debtor's aggregate interest in any property,not to exceed five thousand dollars ($5,000) in value of any unused exemption amount to which the debtor is entitled under subdivision (1) of this subsection.

(3) The debtor's interest, not to exceed three thousand five hundred dollars ($3,500) in value, in one motor vehicle.

(4) The debtor's aggregate interest, not to exceed five thousand dollars ($5,000) in value for the debtor plus one thousand dollars($1,000) for each dependent of the debtor, not to exceed four thousand dollars($4,000) total for dependents, in household furnishings, household goods,wearing apparel, appliances, books, animals, crops, or musical instruments,that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor.

(5) The debtor's aggregate interest, not to exceed twothousand dollars ($2,000) in value, in any implements, professional books, ortools of the trade of the debtor or the trade of a dependent of the debtor.

(6) Life insurance as provided in Article X, Section 5of the Constitution of North Carolina.

(7) Professionally prescribed health aids for thedebtor or a dependent of the debtor.

(8) Compensation for personal injury, includingcompensation from private disability policies or annuities, or compensation forthe death of a person upon whom the debtor was dependent for support, but suchcompensation is not exempt from claims for funeral, legal, medical, dental,hospital, and health care charges related to the accident or injury giving riseto the compensation.

(9) Individual retirement plans as defined in theInternal Revenue Code and any plan treated in the same manner as an individualretirement plan under the Internal Revenue Code, including individualretirement accounts and Roth retirement accounts as described in section 408(a)and section 408A of the Internal Revenue Code, individual retirement annuitiesas described in section 408(b) of the Internal Revenue Code, and accountsestablished as part of a trust described in section 408(c) of the InternalRevenue Code. Any money or other assets or any interest in any such planremains exempt after an individual's death if held by one or more subsequentbeneficiaries by reason of a direct transfer or eligible rollover that isexcluded from gross income under the Internal Revenue Code, including, but notlimited to, a direct transfer or eligible rollover to an inherited individualretirement account as defined in section 408(d)(3) of the Internal RevenueCode.

(10) Funds in a college savings plan qualified undersection 529 of the Internal Revenue Code, not to exceed a cumulative limit oftwenty-five thousand dollars ($25,000), but excluding any funds placed in acollege savings plan account within the preceding 12 months (except to theextent any of the contributions were made in the ordinary course of thedebtor's financial affairs and were consistent with the debtor's past patternof contributions) and only to the extent that the funds are for a child of thedebtor and will actually be used for the child's college or universityexpenses.

(11) Retirement benefits under the retirement plans ofother states and governmental units of other states, to the extent that thesebenefits are exempt under the laws of the state or governmental unit underwhich the benefit plan is established.

(12) Alimony, support, separate maintenance, and childsupport payments or funds that have been received or to which the debtor isentitled, to the extent the payments or funds are reasonably necessary for thesupport of the debtor or any dependent of the debtor.

(b) Definitions. - As used in this section, thefollowing definitions apply:

(1) "Internal Revenue Code" means Code asdefined in G.S. 105-228.90.

(2) "Value" means fair market value of anindividual's interest in property, less valid liens superior to the judgmentlien sought to be enforced.

(c) Waiver. - The exemptions provided in this Articlecannot be waived except by:

(1) Transfer of property allocated as exempt (and inthat event only as to the specific property transferred);

(2) Written waiver, after judgment, approved by theclerk or district court judge. The clerk or district court judge must find thatthe waiver is made freely, voluntarily, and with full knowledge of the debtor'srights to exemptions and that he is not required to waive them; or

(3) Failure to assert the exemption after notice to doso pursuant to G.S. 1C-1603. The clerk or district court judge may relieve sucha waiver made by reason of mistake, surprise or excusable neglect, to theextent that the rights of innocent third parties are not affected.

(d) Recent purchases. - The exemptions provided insubdivisions (2), (3), (4), and (5) of subsection (a) of this section areinapplicable with respect to tangible personal property purchased by the debtorless than 90 days preceding the initiation of judgment collection proceedingsor the filing of a petition for bankruptcy, unless the purchase of the propertyis directly traceable to the liquidation or conversion of property that may beexempt and no additional property was transferred into or used to acquire thereplacement property.

(e) Exceptions. - The exemptions provided in thisArticle are inapplicable to claims:

(1) Of the United States or its agencies as provided byfederal law;

(2) Of the State or its subdivisions for taxes,appearance bonds or fiduciary bonds;

(3) Of lien by a laborer for work done and performedfor the person claiming the exemption, but only as to the specific propertyaffected;

(4) Of lien by a mechanic for work done on thepremises, but only as to the specific property affected;

(5) For payment of obligations contracted for thepurchase of the specific real property affected;

(6) Repealed by Session Laws 1981 (Regular Session,1982), c. 1224, s. 6, effective September 1, 1982;

(7) For contractual security interests in the specificproperty affected; provided, that the exemptions shall apply to the debtor'shousehold goods notwithstanding any contract for a nonpossessory, nonpurchasemoney security interest in any such goods;

(8) For statutory liens, on the specific propertyaffected, other than judicial liens;

(9) For child support, alimony or distributive awardorder pursuant to Chapter 50 of the General Statutes;

(10) For criminal restitution orders docketed as civiljudgments pursuant to G.S. 15A-1340.38.

(f) Federal Bankruptcy Code. - The exemptions providedin The Bankruptcy Code, 11 U.S.C. § 522(d), are not applicable to residents ofthis State. The exemptions provided by this Article and by other statutory orcommon law of this State shall apply for purposes of The Bankruptcy Code, 11U.S.C. § 522(b).

(g) Effect of exemptions. - Notwithstanding any otherprovision of law, a creditor shall not obtain possession of a debtor'shousehold goods and furnishings in which the creditor holds a nonpossessory,nonpurchase money security interest until the creditor has fully complied withthe procedures required by G.S. 1C-1603. (1981, c.490, s. 1; 1981 (Reg. Sess., 1982), c. 1224, ss. 1-7, 20; 1991, c. 506, s. 1;1995, c. 250, s. 1; 1998-212, s. 19.4(j); 1999-337, s. 2; 2005-401, s. 1; 2009-417,s. 1; 2013-91, s. 3(a)(9).)

You may want to consider Chapter 7 bankruptcy to discharge the debt.Also you want to get all money out of your bank accounts they can garnish them, keep $20 or the minimum here.They already have a judgment and are seeking to collect it here.

I appreciate the chance to help you today.Thanks again.