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I am a non-litigation attorney - have a pro bono client who has a judgment against him. The plaintiff is trying to levy.

Savannah, GA |

Is it too late to file constitiutional exemptions? Or does the client have to file the exemptions and file some kind of motion with the court to stop the levy? This is a judgment in magistrate's court. The plaintiff has been pro se thus far. I live out of state and if legal documents have to be filed with the court, I will have to refer the client to someone else. This never happens to my clients - I don't let things get this far, but this client contacted me after judgment was entered. He is unemployed and I am trying to help without getting too involved as he can't pay and will not be able to do so. Item being sough in the levy is a painting which my client asserts is subject to a security interest as collateral for a prior loan.

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Attorney answers 3

Best Answer
Posted

I'm not sure where a valuable painting fits in to levy exemptions, especially regarding a debtor who has leveraged the property. So it sounds like the debtor has a judgment, the creditor wants the painting and the debtor doesn't want to give up the painting. Just as with any judgment/garnishment scenario, The debtor needs to either file a traverse and fight it out in court, or make a deal with the creditor and sign a consent judgment, or file for bankruptcy.

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Rachel Lea Hunter

Rachel Lea Hunter

Posted

A judgment was entered against debtor. Debtor claims that painting is worth $3500 but that it was given as security already for antecedent debt as evidenced by some documentation. Plaintiff and defendant debtor have a history and plaintiff knows about the painting which is why he sought to levy on it. The debtor has no assets and is otherwise judgment proof - he does not work. All that he is this painting and he claims the plaintiff and sheriff are harassing him. I don't live in Savannah (although licensed to practice in GA). I thought if I could prepare an exemption application for the debtor, he can file that and can waive it (metaphorically) in the face of the plaintiff and sheriff and say in essence "you can't touch this!" I could then send a letter on the client's behalf to both the plaintiff and sheriff and advise that there are no other assets to levy upon and for the plaintiff to cease his harassment or risk further legal action. What I wanted to know is can the constitutional exemptions (not statutory which are only for bankruptcy) be filed now? I thought a traverse was only for wage garnishment which is not an issue right now.

Ashley Anne Digiulio

Ashley Anne Digiulio

Posted

If there has already been an order entered for the debtor to turn over the painting, its a little late to argue exemptions without traversing the judgment. Traverse is a term used in many different cases in terms of "denying" or "turning the case off it's current track". The question is whether the judgment is "traversable". As I said, how do you exempt a valuable painting that is not owned by your client? It is essentially owned by the person who has a note secured by the painting and your client owns the note. Why shouldn't your client turn over the painting and have the creditor asssume the note? These are questions that come to mind. Of course, there is some question as to whether there actually is a note securing the painting, or, if there is a note, is it enforcable. You may want to refer your client out to a local attorney who is familliar with local practice or to the local legal aid office. If you are "stuck" with the case, or in a situation where you need to "fix" it, you should consider calling in a local attorney to work with you on it and also cover his expenses.

Ashley Anne Digiulio

Ashley Anne Digiulio

Posted

Correction, your client owes the balance on the note... not you client owns the note.

Posted

The answer will probably depend on what state the judgment entered in. For example, in Utah the debtor would need to request a hearing within ten days and then convince the court at the hearing that the property is subject to a lien. The debtor should provide some sort of notice to the secured creditor as well--if they show up claiming a superior interest the court will doubtless find that more persuasive.

Providing this answer does not form an attorney-client relationship. Most legal questions are exceedingly fact-sensitive and therefore this answer is a best-guess based on the information you provide. You should consult an attorney licensed in your state to further discuss your matter.

Posted

I agree with Mr. Koyle's approach.

Notice is needed. I imagine GA law is different than say Illinois where I practice so the trick is to research what that state does.

Good luck.

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