Writ of Executions NC bank levy

[flyinbroke]

I live in TX, and the laws are the same...wages cannot be garnished. HOWEVER...once the employer pays you, the money paid to you is no longer considered wage and are thus fair game to creditors once you have a judgment. And yes, they will take all of it out whether they are allowed to or not. It is up to you to prove that the exemptions exist. NC has more rules on bank accounts but bear in mind that once the check is cashed, it is no longer considered "wages".

The sheriff was doing his job and by being blunt about seizures was delivering a wake up call; assets are indeed frozen without an exemption and you did not file the paperwork detailing that the account was made up of exempt wages so I am not seeing any impropriety on his part. However, I am not a lawyer nor do I play one on TV.

There were so many things you could have done before you got to this point. I think you will need a lawyer for this one. You may need to prove that the earnings were truly from the last 60 days and it may be hard to prove pro se.

[OHBOY]

Quote by 'HMM':"Not sure why you would be dealing with the sheriff, to claim an exemption, you need to go to the court where you were sued. The sheriff is simply a tool of the process, they are not a decision maker."



just a thought.....: if NC is anything like FL the sheriff is very much part of this whole thing.

For example: under Fl 222.061 'Method of exempting personal property;inventory' it states:
(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.

[HHM]

Quote by 'HMM':"Not sure why you would be dealing with the sheriff, to claim an exemption, you need to go to the court where you were sued. The sheriff is simply a tool of the process, they are not a decision maker."



just a thought.....: if NC is anything like FL the sheriff is very much part of this whole thing.

For example: under Fl 222.061 'Method of exempting personal property;inventory' it states:
(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.

Correct, but notice, the FIRST STOP is to the court. The sheriff has no decision making authority in this situation, all they do is respond to court orders. If they get a court order to serve such and such bank with a levy, they do it. Once they get a court order saying $X amount of funds are exempt, then they release the levy. The point is, there is no reason for DinD to be talking to the sheriff at this point, DinD needs to get his butt to the court house.

The burden of proof on exemptions belongs to the debtor. DinD, YOU must go to court and claim the exemption, it is not the sheriff jobs to figure out what is and is not exempt (that is essentially what the sheriff was telling you).

As the attorney told you, you will need to go to court and claim the exemption. I am not sure what you are fighting us on here.

Gather up your bank statements and pay stubs, get your butt down to court and claim the exemption.

[DinD]

As the attorney told you, you will need to go to court and claim the exemption. I am not sure what you are fighting us on here.

Gather up your bank statements and pay stubs, get your butt down to court and claim the exemption.

I am not at all fighting anyone on this. In fact I very much appreciate everyone's advice, not sure how you got that from my post. The sheriff said that he was searching to see what sorts of assets I had and found the account. Then he followed up with saying how it was the only way he could get any money. He never once said anything about me needing to go to the courthouse.

The burden of proof on exemptions belongs to the debtor. DinD, YOU must go to court and claim the exemption, it is not the sheriff jobs to figure out what is and is not exempt (that is essentially what the sheriff was telling you).

I am not disputing that the burden lies with me. I don't need to as I have done my part as far as filling out the exemption form in full. The form itself does not ask about wages. I'm just trying to find out whether in fact the sheriff is allowed to garnish my wages in this instance, which he did not confirm. He tried to get me to tell him who was my attorney and proceeded to get me off the phone. If and when he calls me back and instructs me to go to the courthouse, I will.

[DinD]

I live in TX, and the laws are the same...wages cannot be garnished. HOWEVER...once the employer pays you, the money paid to you is no longer considered wage and are thus fair game to creditors once you have a judgment. And yes, they will take all of it out whether they are allowed to or not. It is up to you to prove that the exemptions exist. NC has more rules on bank accounts but bear in mind that once the check is cashed, it is no longer considered "wages".

This is interesting. I'm not saying this is not correct, it very well may be, but how else would one go about exempting 60 days of wages prior to the levy if in fact those wages are no longer wages once paid to me by my employer. Catch 22 methinks. Hope springs eternal.

[flyinbroke]

This is not that hard: if you are being sued, there is going to be a judgment on the horizon. Judgments do lead to levies. Getting paperwork together to file the exemptions should have been done so you can drop them the second a judgment is filed. People have been known to alert the banks that they have exempt cash (I, for example, am a disabled veteran...disability cannot be touched for CC debt) that cannot be levied.

As for the 60 days, I am not well versed in the nuances of NC law but it seems that the 60 day rule is mainly for life expenses, which I take to mean housing, food, electricity and possibly transportation. Ask a lawyer about that one.

[WhatMoney]

This is interesting. I'm not saying this is not correct, it very well may be, but how else would one go about exempting 60 days of wages prior to the levy if in fact those wages are no longer wages once paid to me by my employer. Catch 22 methinks. Hope springs eternal.

the earnings of the debtor for his personal services, at any time within 60 days next preceding the order, cannot be garnished if he files an affidavit stating that the earnings are necessary for the use of his family

Too bad you didn't find this forum earlier. Once you have a judgment you simply do not leave any funds in a bank account. If the funds are clearly exempt, such as social security direct deposit only, you still need to notify the bank in advance of any judgment or levy that the account has a special exempt status. This gives you extra legal leverage against the bank if they still freeze exempt funds. There are more states enacting laws requiring banks to signify exempt accounts when requested by the account holder.

In your case your earned wages were not obviously exempt. The bank would have no way of knowing before the levy, that those wages were all used to support your family for the last 60 days, and neither would the sheriff. What happened to you is perfectly normal and happens thousands of times per day to judgment debtors. The bank and sheriff simply obey the court order and seize your funds, and it is solely up to the debtor to prove an exemption and to get the funds returned.

I read somewhere that only 15% of debtors actually contest w/ exemptions a bank account seizure. From the collectors point of view, bank account levies are good business.

[DinD]

Thank you for taking the time to respond.

I spent the whole day on the phone trying to figure out how to proceed. I didn't get too far. The court clerk (specifically the branch that deals with judgments) told me that this has nothing to do with them. Their only job is to give my exemptions to the sheriff along with the writ of executions. I called my bank and didn't get anywhere as the customer service rep said I needed to contact the sheriff.

At this point I've been trying to get a hold of him since yesterday and finally got him on the phone. I think he hates me by now. According to him there's nothing he can do until he hears from my bank. His argument was once again that if he didn't get the money from the acct there would be no other way to collect anything. He then told me there was no case law to support my claim that my wages were exempt, and basically was of no further help, other than to say that he doesn't have my money as Wachovia (my bank) still hasn't contacted him since he dropped off the Writ on Friday. He said I should speak with Wachovia. He also said that they routinely do this sort of thing (levy) and there was nothing established (case wise) that says my wages are exempt once they are in my bank account. He told me that he spoke with 3 different attorneys about my situation and all 3 interpreted the law differently.

I called them twice, first time the rep told me it was all in the sheriff's hands. This was before I got through to the sheriff. Once I spoke with him I called my bank once again and the rep was more helpful. She tried to contact their legal department for me but the call volume was too high and she told me to call back after 7pm.

I'm starting to think nobody has a clue as to what is going on. I'm fairly certain I'm not going to get anywhere with them either so my only option would be to get an attorney or forget about the money. Either way this whole thing seems like a real mess.

[DinD]

I also noticed while rereading the 60 day exemption passage that the wording is "earnings" as opposed to "wages", I wonder if that at all changes things.

[flyinbroke]

I also noticed while rereading the 60 day exemption passage that the wording is "earnings" as opposed to "wages", I wonder if that at all changes things.

Not really; wages are not in your hot little hands yet. They are still the property of the employer. Once you get paid, they are earnings.

[WhatMoney]

I'm starting to think nobody has a clue as to what is going on. I'm fairly certain I'm not going to get anywhere with them either so my only option would be to get an attorney or forget about the money. Either way this whole thing seems like a real mess.

At least I don't feel bad if three NC attorneys plus the one you asked all have a different interpretation of the law, or lack of a law it seems. I'm not sure the 1-362 argument would work in court since it is not clear to me that it applies to money once deposited in an account. The law does not address that question.

What I found interesting is that the 4 states that do NOT allow wage garnishment also have laws that prevent an employer from using direct deposit of wages if the employee requests another payment method. In most states an employer can require direct deposit if they choose, but not in NC, TX, etc. This is kind of an indirect admission that you have no protection from your bank account being levied after earnings are deposited in those states.

I find it hard to believe there has been no case law addressing this - since it must be common to levy bank accounts of those with earned wages in NC.

[catleg]

I think you need to talk to the LEGAL department of your bank, or whoever receives legal service on the bank's behalf. Forget about customer service, you're beyond that. If all else fails the sheriff should be able to tell you who this is.

Here is an answer from another website on NC bank levys:

allexperts.com

Expert: Kathleen Eads - 9/14/2007

Question
I am a small claims judgment holder in North Carolina. I have the defendant's bank account info and understand that I can levy his account for whatever he might have in it. Also, I've been told I have to send defendant a Notice of Right to Claim Exemptions before I can levy the bank. Am I on the right track? Thanks! (P.S. I do know for a fact that in N.C. we have to do the Notice of Rights before a Writ of Execution.) But, again, I can't get a definate answer on bank levys.

Answer
I'm not a levy specialist and I don't want to misinform you. I would contact my personal bank and ask how this is usually handled. Also, talk to the court clerk to see what legal requirements are necessary to garn a bank account in your jurisdiction. If I'm not mistaken, the court has to approve & award the writ of garnishment before you can attach any accounts you have located. The court clerk should be able to clarify this for you.

Hope you get it worked out,
Kathleen Eads

[catleg]

Here is another "expert" website:

lawguru

Question
United States | North Carolina | Credit, Debt and Collections Law Attorneys Only: Answer this Question

Debt judgement/ bank levy

Our credit has been good until the past few years. We started our own business, didn't do well, fell behind on bills. We had to let all credit cards and personal loans go just to save our house out of foreclosure. I'm going to court since I cannot pay, they will put a judgement on me. I know that they can't garnish wages in NC for debt, but what about a bank levy, as they told me over the phone?

8/10/06, 10:02 pm
Answer

Re: Debt judgement/ bank levy

They can levy a bank account, but the money in the account has to be "non exempt". Wages are exempt for 60 days after you earn them. Most IRA's are exempt and college savings plans are exempt with some limitations. If a bank account has money in it that includes money from a job earned within the last 60 days, that portion cannot be taken. There is no similar exemption for earnings from self-employment.

If you have any CD's or accounts with funds that have been on deposit more than 60 days, I recommend you seek specific legal advice. There are other property exemptions by statute. A very general explanation of judgment exemptions can be gleaned from reviewing the official form for declaring exempt property. Go to www.nccourts.org and look for Form AOC-CV-415 using the search features of the web site.
Lynn Coleman
Attorney-Mediator
PO Box 311
Kernersville, NC 27285-0311

[catleg]

And this is the exemption form that you have to file:

AOC CV 415 Form

So contact the court clerk and ask how do I file the AOC CV 415 form?

I think there is normally a multi step process for a creditor to take your funds from a bank, and your timely response by filing this form can hopefully stop them.

I know in NJ, most people don't realize they can apply their $1000 state exemption to any bank levy and nobody goes to great lengths to inform people about this. (it was raised as a potential issue of the committee of the Special Civil Part -- should we notify people about this as part of the levy process -- and the conclusion was NAH.)

[Exployer1234]

I think if I had a creditor who wiped my account to a zero balance I would be on the phone with the banks legal department. I would not give up until I got an answer, and I would speak to an attorney. You have to have money to eat with and leaving you with 0 to even eat with is just not right. On the other hand once the money is gone I doubt you will ever see it again. Once I received a judgement to garnish my wages I went ahead and filed BK 2 days later. It stopped everything and I still have my money to eat with.