Lawsuit rights concerning garnishment and attachment

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Washoe Legal Services Information:

Consumer Law: Lose a Lawsuit? Your Rights Concerning Garnishment and Attachment

If I lose a lawsuit, can the plaintiff make me pay the judgment?
What are Attachment and Garnishment?
Is there any property which cannot be taken by attachment or garnishment?
When can you claim your exemption rights?
After garnishment or attachment
How can I claim my exempt property within eight days?
How do I get my property back?
What should I do if the creditor requests a hearing?
If the judge denies my exemption claim, do I have any appeal rights?
Can exempt property ever be taken?
Consumer links related to garnishment and attachment
If I lose a lawsuit, can the plaintiff make me pay the judgment?
If you lose a lawsuit the plaintiff becomes a judgment creditor. You can either voluntarily pay the judgment or the plaintiff can attempt to execute on the judgment against you. To execute means to take steps to get your wages or your property to pay off the judgment. To most common methods of attempting to execute on a judgment are called garnishment and attachment.
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What are Attachment and Garnishment?
Attachment: allows the creditors, with the help of the sheriff or constable, to take personal property such as a car from you and sell it.
Garnishment: allows the creditors to take something of yours in the hands of another person or institution; for example, your employer or your bank.
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Is there any property which cannot be taken by attachment or garnishment?
The creditor cannot take certain property related to basic needs. This property is called exempt property. Included in the property which is exempt under Nevada law (NRS 21.090) are:
75% of your take-home pay or 30 times the minimum wage (currently $154.50 per week) which ever is higher.
Unemployment benefits
Workers Compensation (SIIS) benefits
Welfare benefits (TANF)
Veterans benefits
Social Security and Supplementary Security Income
Social Security disability payments
Amounts necessary to pay court ordered child support or maintenance of a former spouse.
Vocational rehabilitation benefits
Certain federal and state retirement monies
Certain Individual Retirement Accounts
Insurance proceeds, if your annual premium is less than $1,000
One vehicle, if your equity (the market value minus how much you owe) is under $4,500, unless the lawsuit concerned the loan on the vehicle.
A homesteaded house or mobile home, even if you do not own the land. The exemption protects up to $125,000 of the homes value. It can protect up to 100% if the judgment is for a medical bill or you establish allodial title (see Homestead section on this WebSite).The homestead exemption does not apply if the judgment was for the mortgage or a mechanics lien upon the property.
Necessary household goods and yard equipment, (maximum $3,000).
Tools of your trade, profession or business, not to exceed $4,500.
Note: This is not a complete list of exemptions. Consult an attorney to determine if you have any other exemptions.
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When can you claim your exemption rights?
Just because you find your property listed as exempt, do not assume your property is safe. You must take action to protect your exempt property or income. The judgment creditors will not look out for your best interests. You must do that.
Before garnishment or attachment you may:
Homestead your home or mobile home if you own it and live in it. To learn more about this, check this WebSite.
If you have income that is exempt such as Social Security benefits, it is best to notify the judgment creditor in writing of the fact that your bank account, for example, only has Social Security benefits in it. Keep a copy of that written notice for your records.
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After garnishment or attachment
When a judgment creditor:
Garnishes your wages
Garnishes your bank account
Attempts to force a sale of your home or car by attachment
You will have eight days from the date the notice was postmarked to claim your property, income or money exempt.
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How can I claim my exempt property within eight days?
To claim your exempt property must:
Write an affidavit claiming exemption from execution. You may get an exemption affidavit packet from Washoe Legal Services at 650 Tahoe Street in Reno, 329-2727.
File copies of the affidavit with the Court and the judgment creditor.If a bank account is garnished, it is wise to give a copy of the affidavit to the bank.
File that affidavit with the sheriff at the Civil Section counter of the Washoe County Sheriffs Office, 328-3310, at 911 E. Parr Blvd., Reno.
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How do I get my property back?If the judgment creditor does not dispute your claim of exemption, the Sheriff will return your property to you six days after you file the affidavit. If the judgment creditor disputes your claim of exemption - for example, if your car was taken and you claim the car is worth less than $4,500 but the creditor claims the car is worth more - the creditor may request a court hearing. This hearing generally will occur within 10 days after you file and serve your affidavit claiming exemptions.
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What should I do if the creditor requests a hearing?
Be prepared to prove at the hearing that your property is exempt. Bring receipts, bills of sale, Kelly Blue Books, assessors statements, vehicle registration renewals, monthly bank statements or whatever else is necessary to prove your claim.
If you convince the judge of your claim, he or she will order that the money or property be released to you. If the judge determines that the property is not exempt, he will not return the property to you.
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If the judge denies my exemption claim, do I have any appeal rights?
Yes. It is best to contact an attorney immediately to obtain assistance.
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Can exempt property ever be taken?
There are certain situations in which otherwise exempt property can be executed upon. Included are:
When the judgment entered against you is for child support, some of the listed exemptions such as 75% of take-home pay, do not apply.
Where a bankruptcy court orders that the property be taken.
If the judgment is to satisfy certain tax liens.
Where the judgment was for the purchase, loan or improvement on that property - for example, the remaining installment payment on a used car which you bought.
What can I do if I have property or wages which are not exempt from execution?
To avoid garnishment or attachment if you have non-exempt wages or property generally your options are to either:
Pay the debt either in full or through a payment plan that is negotiated with the creditor or imposed by a court,
Convert non-exempt property to exempt property- for example, filing a homestead exemption on your house, or
Erase the debt through a bankruptcy
For expert assistance in deciding the option which is best for you, you may wish to contact the Consumer Credit Counseling Service of Northern Nevada, 575 E. Plumb Lane, Reno, Nevada 89103, (775) 322-6557. This non-profit organization offers counseling, education, debt management (looking at all of your income, expenses and debts) and specialized counseling (student loans, tax repayment, establishing credit, etc.). The agency will also help you understand the pros and cons of bankruptcy.
To file bankruptcy you should contact an attorney who practices in that area of the law. If you are unable to find an attorney whom you can afford you may contact Washoe Law Services at 329-2727 which has a limited number of attorneys willing to take some cases without charge (after screening through a monthly bankruptcy clinic).
For additional information contact:
Washoe Legal Services, Inc.
650 Tahoe Street
Reno, Nevada 89509
(775) 329-2727
FAX: (775) 324-5509
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Consumer links related to Garnishment and Attachment
The following web sites may provide additional information or assistance regarding consumer law:
American Bankruptcy Institute (ABI) Consumer Information Center
http://www.abiworld.org/consumer/A.html
Better Business Bureau
http://www.bbb.org/
Consumer Law Page (Alexander Law Firm)
http://consumerlawpage.com/
Fair Debt Collection (FTC)http://www.ftc.gov/bcp/conline/pubs/credit/fdc.htm
National Association of Consumer Advocates (NACA) Home Page
http://www.law.umkc.edu/lawresources/naca/naca-home.htm
National Consumer Law Center
http://www.consumerlaw.org/
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