Bankruptcy Law and Practice
Bankruptcy Law and Practice
1st Edition
Gregory Germain
Table Of Contents
Introduction
Bankruptcy Law and Practice

A Casebook Designed to

Train Lawyers for the

Practice of Bankruptcy Law

 

__________

 

Gregory Germain

Professor of Law

Syracuse University College of Law

 

 

CALI eLangdell Press 2016

About the Author

Gregory Germain is a professor at Syracuse University College of Law where he teaches courses in Contracts, Commercial Transactions, Corporations, Taxation and of course Bankruptcy Law. He also runs a pro bono bankruptcy program for first year law students, and a bankruptcy clinic for upper division students. The clinic represents indigent individuals in bankruptcy cases.

Professor Germain received his JD Degree Magna Cum Laude from the University of California Hastings College of Law, practiced law for 15 years in Los Angeles and San Francisco, and then obtained his LLM in Tax from the University of Florida. Following tax school, he worked as an attorney advisor for the Honorable Renato Beghe of the United States Tax Court before beginning his teaching career at Syracuse University College of Law.

Notices

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Forward

This book is intended for a three credit law school course covering the fundamentals of bankruptcy law and practice. Students should recognize that this is a “Code” class, and that the starting place for solving most bankruptcy problems is the Bankruptcy Code itself. Students should read the materials and work through the problems by direct reference to the provisions of the Bankruptcy Code. Bankruptcy lawyers simply must be comfortable with the Code in order to be effective.

The book contains many cases interpreting the Bankruptcy Code. The cases have been stripped to the essentials to minimize reading. Most cross-citations have been deleted. Issues discussed in the cases that are not relevant to the point for which the case is included in the materials have been stricken. Bolding has been added to important language the students should focus on. The practitioner, of course, should always read full cases and not rely on the edited versions in this book or on headnotes or other secondary sources. This book contains the bones of the case, with flesh left only where essential to understanding the court’s reasoning on the particular issue of relevance to the material in the book.

Much of the learning will come through working with the problems. Many students have developed the bad practice of reading the questions without trying to solve them. Don’t do that. You need to try to solve the problems by reading and working through the statute. The best way to learn and be comfortable with using the statutory language is to work through the statute to solve the problems.

Some of the problems contain case references. I do not expect my students to read the cases that are merely cited in the problems, and not reprinted in the book. I discuss some of these cases with the class when covering the problems. Students interested in the problems are always free to read the cases for greater understanding, as time permits.

Chapter One
A World without Bankruptcy
1.1. A Wee Bit of History

We begin the study of bankruptcy law by imagining a world in which bankruptcy does not exist.  That was in fact the state of affairs during most of the 18th and 19th centuries. While the Constitution gave Congress the power to “establish uniform laws on the subject of bankruptcies,” it did not require Congress to enact bankruptcy laws. U.S. Constitution, Article I, Section 8, Clause 4. There were short-lived federal bankruptcy laws in effect from 1800-1803, 1841-1843, and 1867-1878. Federal bankruptcy law only became a permanent with the passage of the 1898 act, which remained in effect (with substantial revisions) until the passage of the current bankruptcy code in 1978. The 1898 Act, as amended, remains known as the “Bankruptcy Act,” and the 1978 law is known as the “Bankruptcy Code.” 

Early bankruptcy laws both internationally and in the United States were primarily methods for creditors to join together to efficiently collect their debts. There were no voluntary bankruptcy cases filed by debtors until the late 19th Century - bankruptcy cases could only be commenced by creditors filing involuntary petitions against debtors who were in default. In the early days, debtors who were unable to pay their debts were sent to languish in prison until their debts were paid. For most, this was a life sentence – only those fortunate enough to have family members able to pay were able to buy their freedom. The original concept of a “discharge” was a release from prison given by creditors to cooperative debtors, not the modern concept which bans creditors from attempting to collect the discharged debts. Debtors prisons were abolished in the middle of the 19th century, but some vestiges remained well into the middle of the 20th century, when the Supreme Court finally made it clear that debtors could not constitutionally be imprisoned for their inability to pay debts. See Williams v. Illinois, 399 U.S. 235 (1970); Tate v. Short, 401 U.S. 395 (1971). Note that debtors can still today be imprisoned for refusing to pay debts that the debtor is able to pay – generally on a finding of contempt for disobeying a turnover order. We begin therefore with process by which debts are collected outside of bankruptcy.

1.2. Enforcing Claims

An unsecured claim arises from a debtor’s legal obligation to pay money or property to a creditor. The legal obligation can be created by a debtor’s promise to pay money or deliver property to a creditor (contract), from a debtor’s receipt of money or property under circumstances requiring restitution (quasi-contract), or from a debtor’s commission of a tort.

It is important to distinguish unsecured claims from secured claims, which will be discussed in Chapter 2. A secured claim arises when a debtor voluntarily gives a lien on some or all of the debtor’s property to secure repayment of the debt (consensual lien), or when the law imposes a lien on debtor’s property to secure repayment of the debt (involuntary lien). In order for a lien to exist, there must be some specific property that is subject to the lien. A lien is a creditor’s legal right, “in rem,” to specific property owned by the debtor. A lien is an interest in the property itself, and must be distinguished from the unsecured, “in personam,” right that the creditor has against the debtor. We will start with a review of the system for collecting unsecured claims that are based on the borrower’s legal obligation to pay, and then we will look at the creation, enforcement and priority of secured claims or liens in Chapter 2.

1.3. The Self-Help System for Collecting Unsecured Claims

At one time creditors were permitted to use violence and enslavement to collect their claims. In medieval times, the law even assisted creditors by allowing pillory, under which debtors were restrained and subjected to maiming and death at the hands of their creditors. That is no longer the case. It is a crime in every state to threaten to or use violence to collect debts. Short of violence and threats of violence, however, the state laws on debt collection are ill defined and poorly enforced. Creditors are generally free to call or visit their debtors to ask for payment, to report defaults to credit bureaus (which can result in the modern equivalent of a scarlet letter), and even to engage in various forms of conduct that many would consider to be harassment. The limitations are generally embodied in criminal laws like extortion, although some states have enacted fair collection statutes modeled after the federal Fair Debt Collection Practices Act, but applied to the creditors themselves rather than to third party debt collectors. There are also general consumer protection statutes that provide some protection for debtors, but these tend to apply only to specific industries and practices.

The main uniform limitation on debt collection activities is the federal Fair Debt Collection Practices Act. The first thing to note about the Act is that it generally applies only to debt collectors – those who regularly collect debts owed to another. It is entirely inapplicable to creditors who collect their own debts in their own names, and to the collection of business debts. Nevertheless, the act is extremely important because creditors often utilize third party debt collectors to collect consumer debts. The debt collection industry is enormous – it is s a multi-billion dollar industry, and its practitioners range from professional law firms to sleazy boiler room operations. In most states, no license or professional training is required to engage in the debt collection industry, and violations of the federal Act abound.

1.4. Practice Problems: Fair Debt Collection Practices Act (FDCPA)

Read the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1601 et seq, which is reprinted in Appendix A at the end of the book. If you are using an electronic version of this book, you should be able to click any of the underlined links to take you directly to the relevant appendix or code section in this document. If you have internet access, you should also be able to click case links to read the full text version of the cited case using the free Google Scholar service.

Problem 1. Debtor owes $15,000 on her BofA Visa card, and has not made a payment in two months. A BofA employee calls the Debtor at 2:00 in the morning, and allows the phone to ring 10 times before it is answered. The employee tells the debtor that he is an employee of BofA, and threatens to have the debtor put in jail unless payment is made by the close of business that day. What provisions of the FDCPA have been violated?  FDCPA § 803(6).

Problem 2. How would your answer to Problem 1 change if the BofA employee falsely told the debtor that he worked for the district attorney’s office?  See FDCPA § 803(6)(A).

Problem 3. You are a new lawyer working at a debt collection law firm. Your firm has been asked to collect a debt owing to BofA. You want to send a demand letter to the debtor offering to accept 80% of the debt for immediate payment. If the 80% is not paid within 10 days, you want the debtor to know that you will file suit and seek to recover attorney fees and costs under the agreement. Are you subject to the FDCPA?  See FDCPA § 803(6). If so, what must you say in the letter?  See FDCPA §§ 807(11), 809. For example, may you say (1) that you are an attorney, and (2) that you intend to file suit if the debtor does not timely accept your 80% payment offer?  See FDCPA § 807.

Problem 4. Assume the same facts as in Problem (3), except that the debtor borrowed money for its business rather than owing money on a credit card. Would this change any of your answers?  See FDCPA § 803(5).

Problem 5. You are now the debtor. You have received a letter from an attorney like the one in Problem (3). You have no idea what this debt is, and believe it may be a mistake or identity theft. What should you do?  See FDCPA § 809(b). What must the debt collector do in response to your action?

Problem 6. Assume that the debtor owes the debt, but does not have the money to pay it, and is tired of getting collection calls constantly. What can the debtor do to stop the calls? See FDCPA § 805(c).

Problem 7. What can an individual consumer recover in an action against a collector for violating the FDCPA?  See FDCPA § 813.

1.5. The Judicial System for Collecting Unsecured Claims: Obtaining and Enforcing a Judgment

In order to collect an unsecured debt using the judicial process, an unsecured creditor must file a lawsuit against the debtor, win the suit by obtaining a money judgment from the court, and then enforce the judgment against the debtor’s property. The process for obtaining a money judgment can be long and expensive if the debtor files an answer to the complaint. Fortunately for creditors in consumer cases, most debtors does not have the knowledge (or financial ability to hire someone with the knowledge to represent them) to file an answer to the complaint. If an answer is not timely filed after service, the creditor can obtain a fast and cheap default judgment, and can then proceed to enforce that judgment.

The law suit process is slowed down considerably if the debtor files an answer to the complaint. The creditor must either win the suit by summary judgment or prove the case at trial – a process that can take years in many jurisdictions and can be extremely costly. In my experience, collection firms often let the suit languish or drop the suit entirely if the debtor merely files an answer to the complaint. It is simply not worth the money for a creditor in a small consumer case to prove their claim. My advice to debtors is to always file an answer to a complaint, even if the debtor has no real defenses. There is nothing wrong with making a creditor prove its case. Unfortunately, by the time debtors seek legal assistance, they are usually facing the loss of property, and have often waived legitimate defenses by failing to file a timely answer.

After the creditor recovers a money judgment (usually by default, or after summary judgment or trial), the creditor can apply to the clerk of the court for a writ of execution or something similar (in the old days it was called a “writ of fieri facias” or “fi fa,” and it is still called that in some jurisdictions). The writ by whatever name is used in the state instructs the levying officer (usually the County Sheriff) to recover and sell the identified property to satisfy the creditor’s judgment. The creditor must identify property owned by the judgment debtor that is available for execution, and provide the levying officer with the location of the property.

In order to determine what property is available for execution, the creditor after obtaining a judgment can take discovery from the debtor to determine the existence and location of the judgment debtor’s non-exempt property. In small cases this is done by written interrogatory – in larger cases this is done by oral examination (deposition). Creditors can also discover the location of assets using governmental and database searches, or from information provided by the debtor when the original credit was extended.

Upon receipt of the writ of execution, the levying officer must drive his or her pickup truck to the location of the property, physically seize the property (using force if necessary), bring the property back to the levying officer’s place of business, and proceed to follow a statutory procedure for selling  the property (normally through an advertised auction process). The proceeds from the auction sale are used to pay first the levying officer’s costs of execution and then the creditor’s claim. Any excess is returned to the debtor.

The process is slightly different for real property, since the levying officer cannot put land in the back of a pickup truck. The levy on real property is generally made by the levying officer posting some sort of notice that the land is being seized. Some states require other symbolic acts by the levying officer, such as grabbing some soil and saying a magic incantation in addition to posting the notice of levy. Following levy, a similar sale procedure is utilized to sell real property.

1.6. Provisional Remedies

Provisional remedies are prejudgment remedies that can be issued by a court to preserve the status quo during the lawsuit. Traditional prejudgment remedies are preliminary injunctions, provisional receiverships pending foreclosure, and prejudgment writs of attachment. Under a pre-judgment writ of attachment, the levying officer would hold and protect the property pending the final outcome of the case.

At one time, state statutes allowed creditors to recover collateral or obtain prejudgment attachment and garnishment using court process without prior notice to the judgment debtor, and without requiring proof to the satisfaction of a judge. Indeed, often defendants could be deprived of the possession of property based on nothing more than an attorney’s allegation.

Beginning in the 1970s, the Supreme Court struck down a number of state provisional remedy statutes for failing to provide Debtors with due process prior to allowing their property to be taken. See Sniadach v. Family Fin. Corp. of Bay View, 395 U.S. 337 (1969) (striking down prejudgment wage garnishment statute); Fuentes v. Shevin, 407 U.S. 67 (1972) (striking down statutes allowing prejudgment replevin without notice and without a judicial hearing), Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) (allowing prejudgment replevin without notice but only after a judicial hearing and with the posting of a substantial bond to protect the debtor); North Georgia Finishing, Inc. v. Di-Chem, Inc. 419 U.S. 601 (1975) (striking down prejudgment garnishment statute); and Connecticut v. Doehr, 501 U.S. 1 (1991) (striking down statute allowing prejudgment attachment of real estate without prior notice or hearing and without posting a bond).

I read these cases to require unsecured creditors to give their debtors notice of the proceeding and an opportunity to appear and object before debtors can be deprived of the possession and control of their property, unless the creditor can prove to the judge’s satisfaction that the property will likely be lost if prior notice is given. Even after meeting a heavy showing of necessity, the creditor must be required to post a bond to protect the debtor from financial loss should the creditor not prevail, and the debtor must be given the opportunity for a prompt post-deprivation hearing.

The reason that there have been so few published cases involving ex parte (that is, without notice) pre-judgment writs is that state courts no longer grant ex parte relief except upon the most extraordinary showing of cause. Your author once tried to get a California state court to issue a prejudgment writ of attachment upon a substantial showing that the defendant was hiding assets that would likely be dissipated if notice was given. The judge denied the application without even offering me a hearing, saying that this kind of relief “just isn’t granted anymore.”  While there may be courts in less liberal parts of the country that would entertain ex parte relief, the burden of proof on the applying creditor will likely be heavy.

Prejudgment remedies are available on notice, but the required showing is heavy. The creditor must show a probability of success on the merits, a likelihood of harm during the pendency of the case if relief is not granted, and must post a bond to protect the defendant from loss should the debtor ultimately prevail on the merits. Even though their role has been diminished, prejudgment remedies have an important role to play in the race between creditors to the court house that is discussed later in this chapter.

1.7. CASES: The Sheriff’s Duty to Enforce Writs
1.7.1. DAVID J. VITALE v. HOTEL CALIFORNIA, INC., 184 N.J. Super 512, 446 A.2d 880 (1982)

Plaintiff David J. Vitale, Jr. brings this motion pursuant to N.J.S.A. 40A:9-109 to amerce, that is, hold liable the Sheriff of Monmouth County, William Lanzaro, for failing to execute a writ based on a judgment against defendant Hotel California, Inc. (California). The chronology of events is as follows: Vitale obtained a final judgment against California in the amount of $6,317 plus costs on August 12, 1980 and thereafter learned that California held the liquor license for "The Fast Lane," a bar featuring "punk rock" entertainers, located in Asbury Park, New Jersey. A writ of execution issued on June 23, 1981, and on July 9 the sheriff received the writ along with a cover letter from plaintiff instructing him to levy upon all monies and personal property at The Fast Lane.

Then began plaintiff's travail with the sheriff's office which gave rise to this proceeding. On July 27 the office indicated to plaintiff's attorney that a levy was not possible since the bar was only open late in the evening, from about 10 p.m. to 2 a.m., and that the writ would be returned unsatisfied. [Plaintiff’s attorney] advised a deputy sheriff that it was absolutely necessary to proceed to make the levy during the open hours.

[The sheriff reported that he] went to The Fast Lane on July 31 accompanied by an Asbury Park police officer, identified himself and announced his purpose at the door, but was denied access by the bar's "bouncers." Fearing that violence might ensue, the officers left. [Plaintiff’s attorney advised the sheriff] to make the levy and arrest anyone interfering with execution. [The sheriff refused to proceed without a further court order, which the plaintiffs obtained. The sheriff] went [to the bar] on the morning of August 15 and was able to seize $714 in cash and other personal property. [The sheriff] reported back . . . his belief that additional money may have been secreted before he was able to levy upon it. [The Sheriff refused to make further levies contending] that only one levy need be made under a writ of execution.

The sheriff maintains that "it is unreasonable to expect any Sheriff, to command his officers or deputies to go forth on an unknown number of occasions, at an unreasonable hour, to seize proceeds of an establishment such as The Fast Lane."

Three basic, interrelated questions are presented for resolution: (1) Are successive levies possible under one writ of execution? (2) When may a sheriff refuse to levy as instructed by a plaintiff, on the basis that the request is unreasonable or onerous? (3) Was the conduct of Sheriff Lanzaro and his office in respect to the writ such as to subject him to amercement?

Before proceeding to answer the first question, a brief overview of execution procedure would be beneficial. A successful plaintiff who obtains a judgment against a defendant may cause the personal property of the defendant/judgment debtor to be seized and sold and the proceeds applied to the judgment and costs by way of execution. To do this, plaintiff obtains a writ of execution, directing the sheriff to levy and make a return within three months after the date of issuance. (A "return" is the physical return of the original writ to the court clerk, endorsed with the executing officer's brief description of what was done. In addition, the officer must file a verified statement of when and how much money was collected and the balance due on execution fees or costs.).

The writ may be returned before the return date if, notwithstanding diligent effort, the judgment cannot be satisfied any further. Once an execution has been returned, a sheriff cannot thereafter levy upon any property under the writ. Nor can a valid levy be made after the return date. Successive executions upon the same judgment are possible. Therefore, if the first seizure is insufficient, the creditor may seek an alias writ for levy upon other goods. Thereafter, the plaintiff may seek an unlimited number of pluries writs until the judgment is satisfied. The proceeds from the sheriff's sale of seized property are paid to the judgment creditor or to his or her attorney or to the court clerk.

Throughout the process plaintiff plays a crucial role. Plaintiff must prepare the writ, have it entered by the court clerk and see that it is delivered to the sheriff with instructions as to levying. If necessary, plaintiff should conduct discovery to locate and identify property to be levied upon. Complementary to plaintiff's responsibility is the sheriff's duty to execute the writ according to the plaintiff's instructions. The writ is in the "exclusive control" of the judgment creditor; the sheriff must follow the creditor's reasonable instructions regarding the time and manner of making the levy and must abide by special instructions to make an immediate levy, if practicable, when plaintiff demonstrates necessity.

I. Successive Levies Under One Writ

The first question presented, whether successive levies can be made under one writ, can be simply answered — "yes." . . . . If property levied on is not sufficient to satisfy the execution, a return should not be made without a showing that attempting another levy would be fruitless.

II. Reasonableness of Requested Levies

That brings us to the second question, whether the sheriff rightly refused to honor an unreasonable request to levy. The particular elements of the request perceived as unreasonable must be reviewed.

The sheriff first objects to the "unknown number of occasions" that he and his deputies would have to go forth to attempt levy in order to comply with plaintiff's wishes. [t]here is technically no limit to the number of times that a sheriff might be required to levy. Nevertheless, practical, operational considerations of a sheriff's office impose an obligation on a plaintiff not to request inordinately frequent and numerous levies. The one successful levy netting $714 on August 15 can be used to project what was entailed by plaintiff's request for levies on successive weekend nights. By extrapolation, the sheriff might have had to levy approximately nine times in the space of one to two months to comply with the request. This many potential levies under one judgment may be unusual but is not in itself unreasonable.

The objection as to the unreasonably late hour requested for the levy also cannot be sustained. Levy under a writ of execution may be made at any hour of the day; there is no issue of privacy here that might dictate otherwise. The Fast Lane's late open hours impelled the late-at-night levy. Like police officers, sheriffs and their deputies may be obliged to work at times of the day and week when the rest of the populace sleep or recreate.

The threat of violence engendered by attempting the levy goes to the heart of the sheriff's objections. "[T]o seize proceeds of an establishment such as The Fast Lane" un-camouflages what may have been the most unappetizing aspect of the requested levy. (Emphasis supplied). . . . Nevertheless, the refusal to make further levies implies that a conscious decision may have been made to risk amercement rather than further confrontations at the bar.

When is physical force appropriate in making a levy? The general rule is that:

[an] officer may force an entry into any enclosure except the dwelling house of the judgment debtor in order to levy a fieri facias on the debtor's goods and even in the case of the debtor's home, when the officer is once inside, he may break open inner doors or trunks to come at the goods.

On July 31 The Fast Lane bouncers did in fact, obstruct the officer from "performing an official function by means of intimidation," giving the officers probable cause to arrest them. Their resistance to the lawful process might have been a basis for criminal conviction. Although the officers did not believe themselves to be in a position to use physical force, they apparently did not summon back-up help to effectuate the levy or make arrests incidental thereto.

Are sheriffs' deputies to be faulted for not using physical force in a nonemergency situation? The nature of law is to physically force people, if need be, to do things or refrain from doing things that they would be free to do or not do in the "natural state"; the hope is that the benefit to society will more than compensate for the loss of individual freedom. Sheriff's officers act as the physical extension of the power of the court, and thus, of the law and the will of the people. Necessarily, then, the privilege of such civil service occasionally demands risking bodily harm to oneself. Only in this way will the lawless be kept from becoming the de facto law makers. Philosophy aside, the record is barren of facts showing any imminent harm to the sheriff's officers on July 31 other than the vague averment that attempting to carry out the levy may have triggered a violent reaction. I find this unembellished defense insufficient to justify not making the levy.

III. Amercement

Consequently, by concluding that the sheriff failed to abide by plaintiff's proper requests to levy, I reach the question of amercement. By proceeding in amercement, a judgment creditor may hold a sheriff liable for failing to properly execute against a judgment debtor:

If a sheriff or acting sheriff fails to perform any duty imposed upon him by law in respect to writs of execution resulting in loss or damage to the judgment creditor, he shall be subject to amercement in the amount of such loss and damage to and for the use of the judgment creditor. The delinquent sheriff or acting sheriff shall also be subject to attachment or punishment for contempt.

The cases demonstrate uniform application of the principle that a "sheriff is not liable to amercement until he shall have disobeyed positive, reasonable, lawful directions." From the above discussion it is clear that plaintiff has carried his burden. Plaintiff’s instructions were consistent and direct and the successive levies requested were lawful and reasonable under the circumstances. The sheriff understood but did not comply with those instructions. Insofar as potential physical resistance thwarted the levy on July 31 and may have inhibited further levies after August 15, there was a definite failure to perform a duty with regard to an execution. It is not denied that plaintiff repeatedly expressed a willingness to pay the mileage costs and fees associated with the levies. The sheriff's failure to abide by plaintiff's instructions therefore renders him liable to be amerced.

The final issue is whether plaintiff has demonstrated a loss. Plaintiff must show that the officer's conduct has deprived him of a "substantial benefit to which he was entitled" under the writ; that but for the officer's conduct, he would have received such benefit through the execution. Plaintiff is not bound to prove the value of the property subject to levy because

 [i]t would be highly inconvenient and unjust to require an innocent plaintiff to prove the value of the goods which had been in the sheriff's power but which, through his neglect, may have been eloigned beyond the reach of plaintiff's investigation. [Id.]

I conclude that plaintiff was denied the benefit of the writ and that the consequential loss amounts to the judgment debt of $6,317 less any amounts heretofore collected.

The difficult, distasteful aspects of executing writs demand that sheriffs be dealt with fairly, with an eye to the practicalities of their job. My reluctance to amerce a sheriff beset with such unpleasant tasks is only overcome by the convincing proof that Sheriff Lanzaro owed and breached a duty to plaintiff to make the successive levies as requested. In short, by invoking the remedy of amercement, I choose to satisfy plaintiff's debt where the sheriff has not.

1.8. Property Garnishments

Garnishment is similar to execution. It is a procedure to recover property belonging to the debtor that is held by a third person. The writ of garnishment is directed to the third person holding the judgment debtor’s property (often a bank or an employer). The writ directs the garnishee to file a “return” identifying any property belonging to the judgment debtor in the garnishee’s possession. The writ covers any property held by the garnishee and owing to the judgment debtor from the time the writ is served until the garnishee files the “return” with the court. The judgment debtor is given a copy of the return and has an opportunity to claim exemptions or make other objections before the property is turned over by the garnishee to the levying officer. The writ thus covers not only property in the garnishee’s hands on the date the writ is served, but any property coming into the garnishee’s hands from the date of service until the writ is returned. The period between service and return is known as the “net.” 

As soon as the writ of garnishment is served on the third party holding property belonging to the judgment creditor, the creditor receives a judicial lien on the property that is subject to garnishment. If the garnishee does not comply with the writ, the garnishee is personally liable for the judgment debtor’s loss. The garnishee must freeze the judgment debtor’s property or accounts upon being served with the writ of garnishment, or run the risk of personal liability for failing to comply with the writ.

It is common for debt collectors to “spray” writs of garnishment on local banks in order to capture money which the judgment debtor may have in any accounts at those banks. Collection lawyers also use databases to find bank accounts in which a judgment debtor may have deposit accounts or safe deposit boxes. The power to freeze a judgment debtor’s accounts provides a powerful incentive for payment, because judgment debtors are effectively frozen out of the banking system.

1.9. Wage Garnishments

Wage garnishments are similar to property garnishments but cover present and future wages owing by an employer to the judgment debtor. Because wage garnishments threaten the judgment debtor’s ability to survive, there are special exemption statutes at both the state and federal level exempting from garnishment a significant portion of the judgment debtor’s earnings.

There are at least two sets of laws that protect judgment debtors from wage garnishments: The Federal Wage Garnishment Law, 15 U.S.C. § 1672 et seq, reprinted in Appendix B, applies throughout the United States and provides two sets of limits:  (1) a floor preventing any wage garnishment for low income workers, and (2) a maximum percentage that may be garnishment from higher income workers. 15 U.S.C. § 1673.

In computing garnishment limits, you must first determine the base pay to which the garnishment limits are applied. The federal law uses “disposable earnings” as the base. 15 U.S.C. § 1672. You must then determine the limits based on the judgment debtor’s actual paycheck.

The current federal minimum wage is $7.25 per hour. The garnishment floor is this 30 times the minimum wage per week, or $217.50 of disposable earnings per week: If the judgment debtor makes less than $217.50 per week in disposable earnings, all of the judgment debtor’s wages would be exempt and would not be subject to garnishment. If the judgment debtor made more than $217.50 per week, a private creditor could garnish the excess disposable earnings over $217.50 per week UP TO 25% of the judgment debtor’s disposable earnings. To comply with the federal garnishment limits, an employer must make two calculations:  (1) By how much did the judgment debtor’s disposable earnings exceed $217.50?  (2) What is 25% of the judgment debtor’s disposable earnings?  Whichever of these two numbers is lower is the federal garnishment limit. If the judgment debtor gets paid bi-weekly, double the limits. If the judgment debtor gets paid monthly, multiply the limits by four.

1.10. State Wage Garnishment Exemptions

Many states offer more generous wage garnishment exemptions than the federal garnishment limitations. State laws cannot be less generous than the federal limits, but they can be more generous. See 15 U.S.C. § 1677.

Some states have no limitations on wage garnishment (allowing the 25% limit from the federal statute to govern); others allow no wage garnishment at all. Some states provide that amounts reasonably necessary for support are exempt rather than specifying limits. In these states, a judgment debtor would have to file a claim of exemption with the court to get a determination that wages above the federal limits are exempt. As of the date of publication, this website has links to the various state garnishment limitations.

In New York, for example, wage garnishment cannot exceed 10% of the judgment debtor’s gross wages. Thus in New York, the employer must make three calculations:  (1) the amount of judgment debtor’s disposable wages over $217.50 per week, (2) 25% of the judgment debtor’s weekly disposable wages, and (3) 10% of the judgment debtor’s weekly gross wages. Whichever of the three numbers is LOWER is the garnishment limit in New York.

Because of the complexity of these rules, I have seen many employers in New York simply withhold 10% of the judgment debtor’s gross wages without applying the federal limits, which is a clear violation of federal law.

1.11. Exceptions to Wage Garnishment Limits

There are several important exceptions to the federal wage garnishment limits.

First, as provided in the statute, family support claims have a much higher federal limit (50-65% of disposable earnings).

Second, the Federal Wage Garnishment Law does not apply to state or federal tax collections. The Internal Revenue Service can garnish wages after assessing unpaid taxes without suing and obtaining a judgment. The IRS can garnish all of your wages above the amount that it has determined is necessary for a person to survive, which is based on the filing status and tax exemptions claimed by the debtor on its tax return. The IRS has published a chart showing the exemption amounts.

Third, federal student loan garnishments are subject to different limits. 31 U.S.C. § 3720d, part of the Debt Collection Improvement Act of 1996, Pub. Law 104–134, 110 Stat. 1321-362 (Apr. 26, 1996) (federal student loan garnishments limited to 15% of disposable earnings). Federal student loan garnishments are also subject to the federal floor of 30 times the minimum wage. Id.

Fourth, the statutory limits reflect the total amount that may be garnished by all creditors. I had a case where an employer received several garnishments from different creditors, and withheld the 10% New York limit for each creditor, taking 30% of the employee’s wages. That was clearly wrong. The limits are aggregate limits designed to preserve to the debtor a living wage. If there are multiple garnishments, the first garnishee gets paid; the others have to wait to be paid in order until the prior garnishees are fully paid. See Department of Labor Fact Sheet 30; and the full regulations at 29 CFR Part 870.

1.12. Practice Problems: Calculating Wage Garnishment Limits

Calculate the maximum garnishment amount for a judgment debtor who resides in New York and earned the following amounts every two weeks: 

1.13. State Law Execution Exemptions

State laws also commonly exempt many kinds of personal property, as well as real estate used as a principal residence (homestead), from execution. State exemption statutes vary widely – some states provide an unlimited homestead exemption regardless of the value of the home, while other states only exempt a homestead up to a few thousand dollars. Household goods (clothes, furniture and the like) are usually exempt, as are cars up to a certain value. In most states, the exemption applies to the judgment debtor’s equity in the property (the value of the property above other liens). A list of state exemption statutes is available at http://www.legalconsumer.com/bankruptcy/laws/. The New York exemption statute is reprinted in Appendix C.

1.14. Practice Problems: Enforcement of Judgments

A creditor has obtained a $100,000 judgment against an unmarried debtor who lives in New York. The debtor asks you whether the creditor can collect the judgment from the following assets owned by the judgment debtor. Review the New York exemption statute and answer the following questions: 

Problem 1. The debtor has $10,000 in a bank account. How much can the creditor take? 

Problem 2. Can the creditor take the debtor’s car, worth $5,000? 

Problem 3. May the creditor force the sale of the debtor’s house in Syracuse (Onondaga County) worth $125,000?  The house is subject to a $40,000 mortgage? 

Problem 4. What if the house is worth $110,000?

Problem 5. The Debtor purchased a car for $3,000, paying $300 down, and borrowing the $2,700 balance from the car dealer. The car dealer has a security interest in the car. If the debtor stops paying, what can the car dealer do?

1.15. Other Federal and State Exemptions

There are many exemptions from execution that are not contained in the general state exemption statute, but instead are buried in other federal and state statutes. The most important exemption is for Social Security payments. Read the exemptions in the Social Security Act, 42 U.S.C. § 407, which is contained in Appendix E. After reading the Social Security exemption statute, can you understand why social security recipients should be advised to keep their social security proceeds in an account that contains only social security proceeds (and not any other form of income)? 

1.16. Federal Tax Collection

The one creditor who is not subject to state and federal exemptions laws (outside of the Internal Revenue Code) is the Internal Revenue Service. The IRS does not have to go to court to obtain a judgment or levy. Instead, the IRS only needs to make an “assessment” before the process of collection can begin.

There are three basic ways that the IRS can make an assessment:  (1) the taxpayer can file a return showing taxes due (this is referred to commonly as a “self-assessment”), (2) the IRS can file a substitute for return if the taxpayer does not file one (generally based on reported income and the standard deduction) and assess the taxes shown as owing, or (3) the IRS can follow statutory procedures to recover a deficiency judgment. The IRS makes the assessment by simply recording the taxpayer’s obligation in its records.

As part of its collection power, the IRS can offset federal tax refunds, garnish social security benefits, and levy upon real or personal property without regard to state or non-tax federal exemption laws. The Internal Revenue Code provides "Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)."  26 U.S.C. 6334(c). The IRS exemptions (26 U.S.C. 6334(a)) include wearing apparel; school books; fuel and provisions, furniture, and personal effects, not to exceed $500 in value; books and tools of a trade, business, or profession, not to exceed $250 in value.

Despite its broad statutory collection power and its reputation in many quarters, the IRS tends to be a gentle creditor if the debtor communicates promptly and openly with the IRS. If a debtor ignores the IRS’s tax notices, the IRS computers will proceed with the automated process of collection. On the other hand, the IRS tends to be very generous with those who call the IRS to explain their situation. The IRS will negotiate payment plans and put people who cannot afford to pay in uncollectable status. The important thing is to communicate with the IRS rather than hoping the problem will go away on its own.

1.17. State Law Avoiding Powers

A creditor with an avoiding power can set aside or avoid a transaction between the debtor and a third party that harmed (or is presumed to have harmed) the creditor. The most important avoiding power is the right of creditors to avoid fraudulent transfers. There is a long history to the fraudulent transfer law dating back to the English Statute of 13 Elizabeth (13 Eliz 1, c 5) in 1571. A Uniform Fraudulent Conveyance Act (“UFCA”) was promulgated in 1918 National Conference of Commissioners on Uniform State Laws, and became the law in most states until a similar but more modern version called the Uniform Fraudulent Transfers Act (“UFTA”) was advanced in 1984. Virtually every state has adopted the UFTA, except notably New York which still uses a modified version of the UFCA. The Illinois version of the UFTA is set forth in Appendix EF.

It is important to note several things about the UFTA (and the UFCA before it). First, the Act covers two kinds of transfers:  (1) transfers with actual intent to delay or harm creditors, and (2) transfers that are constructively fraudulent because the debtor did not receive reasonably equivalent value (“REV”) in return for the transfer, and was or became insolvent (or something like insolvent) by the transfer. The concept of a constructive fraudulent conveyance is that an insolvent debtor is giving away money that should rightfully belong to its creditors in making a gift.

Second, act covers not only transfers of property, but also the incurrence of fraudulent obligations which would dilute the distributions to other unsecured creditors.

Third, the definition of “value” includes the satisfaction or securing of an antecedent debt. Therefore, the debtor’s payment of a valid debt in preference to other creditors, or the debtor giving a lien on collateral to secure certain creditors and not others, is not a fraudulent conveyance (with one exception specified in Section 6(b) of the Uniform Act).

Third, the Act gives greater protection to unsecured creditors who have claims at the time the transfer is made as opposed to those who become creditors in the future.

Finally, the statute of limitations requires a creditor to act promptly after the transfer is made (or in certain cases after learning of the transfer).

Review the Uniform statute and answer the questions below:

1.18. Practice Problems: Fraudulent Transfers

Review the Uniform Fraudulent Transfers Act (Illinois), 740 ILCS 160/1, listed in Appendix F, and answer the following questions:

Problem 1. Debtor owes $100,000 to creditors. Debtor’s assets are worth $50,000. Debtor uses a $10,000 tax refund to help her adult son rent an apartment and buy a car to get to work. Can the creditors do anything about the expenditure?  Would your answer change if debtor’s assets (excluding the tax refund) were worth $101,000? Read carefully UFTA § 5 and UFTA § 6

Problem 2. Debtor owes $100,000 to creditors, and has assets worth $50,000. Debtor’s son needs an apartment. The landlord is not willing to rent the apartment to Debtor’s son unless Debtor guarantees the rent. Would creditors be harmed by the guaranty?  If so, what can creditors do if Debtor guaranties the rent? 

Problem 3. Debtor owes $100,000 to her father, and $50,000 to EasyBank. Debtor owns a (non-exempt) house worth $75,000. Debtor offers her father a lien on her house to secure the $100,000 debt. Would EasyBank be harmed by the granting of the lien?  Could EasyBank avoid the granting of the lien a fraudulent transfer?  See UFTA § 4.

Problem 4. In need of fast money, Insolvent Al pawns his only valuable asset, a 1935 Martin Guitar, at a local pawn shop called PawnWorld for $500 cash. A similar guitar recently sold on EBay for $1,500. Is the pawn a fraudulent conveyance?  Would Al’s failure to redeem the pawn be a fraudulent conveyance?  If so, what could creditors recover and from whom?  See UFTA §§ 9(b), (d). Does it matter whether or not PawnWorld knew that Al was insolvent?

Problem 5. Suppose after Al in Problem (4) failed to timely redeem the pawn, you purchased the guitar from PawnWorld for $1,000 knowing nothing about Al or his financial problems. Could creditors recover the guitar or its excess value from you?  See UFTA § 9(b)(2).

Problem 6. Would your answer to Problem (5) be the same if the guitar was worth $20,000 rather than $1,500?  If they could not recover the guitar from you, is there anything Al’s creditors could do about the fraudulent transfer?

1.19. The Race to the Courthouse and the Concept of Bankruptcy

An unsecured creditor is like a caterpillar with a few suasion powers to enforce payment, but no power to sell the debtor’s assets to obtain money to satisfy the debt. The unsecured caterpillar cannot sell a debtor’s assets and can only use legal suasion to obtain voluntary payment. Only a butterfly (a secured creditor) can cause the sale of the debtor’s assets to obtain money to pay the debt.

But the unsecured caterpillar turns into a secured butterfly through the judicial lien process. Once becoming a butterfly, the former caterpillar has rights in the debtor’s property that can be enforced through sale. But secured butterflies must compete with each other over the proceeds from the sale of the debtor’s property. State law favors the swiftest creditors. The first unsecured creditor to obtain a judgment and cause the levying officer to levy against the debtor’s property gets paid first out of the proceeds. Slow creditors may not get paid at all, as faster creditors devour the debtor’s assets. This is known as the “race to the courthouse,” as creditors rush to be the first to get a judgment and levy on the debtor’s property.

There are two basic rules governing judgment creditor priority (which creditor gets paid first). In the majority of states, the first creditor to levy has priority over later levying creditors. In a minority of states, the first creditor to deliver a writ of execution to the levying officer has priority over later delivering creditors if the sheriff ultimately successfully levies. In either case, it is the law of the jungle, survival of the fittest, with creditors pushing to be the first to obtain their judgment, deliver it to the sheriff, and levy on the debtor’s property.

The race to the courthouse makes it difficult for debtors to negotiate with creditors for additional time to pay, because those generous enough to grant additional time fall behind in the race to become a secured butterfly and have priority over later butterflies.

Historically, the process of bankruptcy was designed by creditors to avoid the race to the courthouse. Instead of creditors competing with each other and often forcing quick sales of the debtor’s property for low prices, creditors join together in a bankruptcy proceeding to obtain the orderly sale of the borrower’s property and distribution of the sale proceeds to all creditors proportionally. The historical process of bankruptcy was a method for collective action by creditors. Today, however, almost all cases are initiated by debtors who seeks bankruptcy protection in order to obtain the benefits of a bankruptcy automatic stay and discharge.

There is one more part of state law that we must understand before we begin the study of bankruptcy law. The process by which the faster judgment creditor has priority over slower judgment creditors, at its core, recognizes that the faster levying creditor has a special interest in the property. This special property interest is known as a “lien,” specifically a judicial lien. A lien is an interest in property to secure a debt or other obligation. In the next chapter we will look at the various kinds of liens that exist under state law, the special rights given to lienholders over unsecured creditors, and how priority between competing lien creditors is determined.

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