Legal
Rate: A creditor is generally allowed to receive
interest on money owed by a debtor at the rate of
Ten (10) percent per annum, if there is no other
rate agreed upon between the parties. (K.S.A.
16-201(a).)
Contract
Rate: The agreed interest rate for promissory
note, bill, bond or other written instrument
generally may not exceed Fifteen (15) percent per
annum. However, this limitation applies only for
loans that are made primarily for personal, family
or household purposes. Business or agricultural
loans are not subject to this provision. (K.S.A.
16-207(b, (f).) In addition, the parties to a
sale, lease, or loan transaction may agree in
writing to waive this provision and be bound by
the terms and provisions prescribed under the
Uniform Consumer Credit Code. (K.S.A. 16a-1-109.)
See Usury Rate.
Judgment Rate. Secretary of
State
Exemptions:
For the
purpose of judgment enforcement or in a bankruptcy
proceeding, a debtor is generally entitled to
certain statutory exemptions under state laws or
federal laws, or both. Under the laws of Kansas, a
judgment debtor may claim homestead exemption to
the extent of 160 acres of farming land, or of one
acre within the limits of an incorporated town or
city, or a manufactured home or mobile home, that
is occupied as a residence by the owner and his
family. Other exemptions include certain public or
retirement benefits, and personal property that
are necessary to sustain the basic needs of the
judgment debtor and his family. Specifics of these
exemptions are prescribed under K.S.A. 60-2301 et
seq.
In a
bankruptcy proceeding, a debtor, who is a resident
of Kansas, is not permitted to elect the
exemptions provided under federal law (K.S.A.
60-2312) even though the federal exemptions may be
more beneficial in his situation, and some other
states permit such election. However, such debtor
may exempt, in addition to those exemptions
provided under Kansas laws, certain property which
are permitted under the federal bankruptcy law (11
U.S.C. Section 522).
KENTUCKY
Judgments and Enforcement:
A money
judgment is enforceable for a period of fifteen
(15) years and may be renewed if action is taken
within this period of time. (KRS 413.090(1). It
may become a lien on the real property of the
judgment debtor in the county in which a notice of
judgment lien is filed, and written notice is
given to the judgment debtor of his right to claim
exemption as provided under the Kentucky statutes.
(KRS 426.720.) A judgment creditor may execute the
judgment by attachment of the debtor's non-exempt
personal or real property, including the
garnishment of wages. Generally, the amount of
earnings which may be garnished may not exceed
twenty-five percent (25%) of the judgment debtor's
non-exempt disposable earnings for a workweek.
(KRS 427.010.)
Kentucky
statutes provide a procedure for confession of
judgment. A debtor who wishes to confess to
judgment may file with the appropriate court a
written statement briefly stating the cause of
action . A judgment by confession operates as a
release of errors and may be enforced in the same
manner as any money judgment issued by the Court.
(KRS 454.090, 454.095, 454.100.)
Foreign Judgments:
Any
judgment, decree, or order of a court of the
United States or of any other court is entitled to
full faith and credit in the State of Kentucky.
(KRS 426.950.) A judgment creditor may seek
enforcement of a foreign judgment by filing an
authenticated copy of the foreign state judgment
and an affidavit setting forth the name and last
known post office address of the judgment debtor
and creditor in the appropriate court of Kentucky.
Notice is required to be given to the judgment
debtor at least twenty (20) days prior to any
enforcement proceedings. (KRS 426.960.) A foreign
judgment has the same effect and is subject to the
same procedures, defenses, and proceedings for
reopening, vacating or staying as a judgment of
any court in the State of Kentucky. (KRS 426.955.)
Interest:
Legal
rate: 8% per annum. (KRS 360.010.)
Contract
rate: At any rate the parties agreed to in writing
if the amount of money involved is in excess of
$15,000.00. If the amount involved is less than
$15,000, the interest rate generally may not
exceed 19% per annum or 4% above the discount rate
on 90-day commercial papers in effect at the
Federal Reserve Bank in the Federal Reserve
District where the transaction is consummated,
whichever is less. (KRS 360.010.)
Judgment
rate: 12% compounded annually from the date of
judgment.
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding. The Kentucky statutes
permit exemption of a debtor's real and personal
property which are used by the debtor and his
family as a residence in the aggregate value of
$5,000.00. Some of the items of personal property
which may be exempt include clothing, household
furniture and furnishings and ornaments not to
exceed $3,000.00 in value, tools, equipment and
livestock not exceeding $3,000.00 in value, and
motor vehicle and its necessary accessories not
exceeding in aggregate $2,500.00 in value. (KRS
427.010.) In addition, a debtor may be entitled to
exemption of awards under a crime victim's
reparation law, certain portion of recovery from
wrongful death or personal injury actions,
pension, retirement benefits, (KRS 427.150), and a
general exemption not to exceed $1,000.00 in value
to be applied toward any property, real or
personal, tangible or intangible, in his estate
when he has filed for bankruptcy. (KRS 427.160.)
In a
bankruptcy proceeding, a debtor, who is a resident
of Kentucky, is not permitted to elect the
exemptions provided under the federal Bankruptcy
Code (K.S.A. 60-2312) even though the federal
exemptions may be more beneficial in his
situation. (KRS 427.170.)
LOUISIANA
Judgments and Enforcement:
A money
judgment issued by the Court of the State of
Louisiana generally may be enforced for a period
of ten (10) years, and may be revived within that
period by citation to the defendant or his
representative for another ten (10) years, and for
as often as the judgment creditor desires. (C.C.
3547, C.C.P. 2031) It may become a lien on the
judgment debtor's real property if it is filed
with the recorder in the Parish in which land is
located. (C.C. 3322.) Such lien stays with the
property for ten (10) years from the date of the
Judgment, and must be reinscribed within that
period in order to extend its enforcement period..
A
judgment creditor may execute a judgment, by a
writ of fieri facias against the judgment debtor's
non-exempt personal property upon the issuance of
a writ of execution at any time during the life of
the judgment. (C.C.P. 2293) A judgment debtor's
wages may also be garnished, but the amount which
may be withheld cannot exceed 25% of his
disposable income for any week. (R.S. 13:3881)
Confession by Judgment
generally may not be permitted prior to maturity
of the obligation. (R.S. 9:3590).
Foreign Judgment:
Any
judgment, decree or order of a court of the United
States or of any other court is entitled to full
faith and credit in the State of Louisiana. The
State of Louisiana will enforce a judgment
rendered by courts of other states if it is
certified or authenticated by the court which
issued it. (C.C.P. 1395.) It generally adopts the
Uniform Enforcement of Foreign Judgments Act.
(R.S. 13:4241-4247)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The clerk of the court and the
creditor are required to mail a written notice of
the filing of the foreign judgment to the judgment
debtor at the address given. The notice must
include the name and post office address of the
judgment creditor and, if the judgment creditor
has an attorney in this state, the attorney's name
and address. Lack of mailing notice of filing by
the clerk does not affect the enforcement
proceedings if proof of mailing by the judgment
creditor has been filed. A judgment so filed has
the same effect and is subject to the same
procedures, defenses, and proceedings for
reopening, vacating, or staying as a judgment
issued by the Courts in Louisiana, and may be
enforced or satisfied in like manner. However, no
execution for enforcement of a foreign judgment
may be issued until thirty (30) days after the
mailing of the notice of the filing of the foreign
judgment.
Interest:
Legal
Rate: Two percent points above the coupon rate
issued as ascertained by the Commissioner of
Financial Institution. ((R.S. 13:4202.) The
published juridical interest rate from January 1,
1999 to December 31, 1999 is 6.370% per annum.
(Louisiana State Bar http://www.lsba.org/ ).
Written
Contract rate: Maximum interest rate which may be
contracted generally may not exceed 12% per annum.
(C.C. 2924)
Judgment
Rate: The legal interest rate applies. (R.S.
13:4203)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
The
Constitution of Louisiana permits a judgment
debtor to claim homestead exemption up to an
amount of $15,000. (Louisiana Constitution Article
12, Sec. 9.) Homestead may consist of rural or
urban land, not exceeding 160 acres, buildings and
appurtenances. (R.S. 20:1)
Personal
property which may be exempt from levy or sale
upon execution, writ of attachment or any process
issuing out of any court in the State of Louisiana
may include certain property necessary to exercise
a trade, calling or profession by which the debtor
earns his livelihood; clothing and certain
prescribed household items, musical instruments,
domestic stocks, household pets, and wedding or
engagement rings with a value not to exceed
$5,000; and pensions, proceeds of and payments
under annuity policies or plans, individual
retirement accounts, all Keogh plans, all
simplified employee pension plans and all other
plans qualified under Sections 401 or 408 of the
Internal Revenue Code.
In a
bankruptcy action, a debtor may claim exemption
only as to that property and income which is
exempt under the laws of the State of Louisiana
and under federal laws other than Subsection (d)
of Section 522 of Title 11 of the United State
Code.
MAINE
Judgments and Enforcement:
A
judgment is enforceable for twenty (20) years and
will be presumed to be paid and satisfied at the
expiration of that period. All real and personal
property of a judgment debtor, except as to those
items of property qualified for exemption under
the Maine Statutes, generally may be attached or
held as security to satisfy the judgment debt. (14
M.R.S.A. 4151, 4451.)
For the
purpose of determining a judgment debtor's ability
to satisfy the judgment, Maine statutes provide a
disclosure proceeding in which the judgment debtor
may be subpoenaed to appear at a hearing to
produce documents and testify as to his assets.
(14 M.R.S.A. 3122.) At this hearing, the court may
make an independent evaluation as to the debtor's
ability to pay, and following that evaluation,
renders a "court payment order". This order may
require the debtor to make installment payments in
an amount not exceeding 25% of the disposable
earnings per workweek. (14 M.R.S.A. 3127.)
In a
case where the defendant's employer is known and the defendant has
either failed to appear for a disclosure hearing
after being subpoenaed to appear before the court
or has missed two (2) or more court ordered
payments, a creditor may seek a court order
directing the employer to withhold such amount
from the defendant's wages by filing a motion with
the court. (14 M.R.S.A. 3127-B.)
Bank
levy of personal (individual) bank accounts is not
permitted. (14 M.R.S.A. 4751.) Turnover orders and
sale of personal or real property, following
notice and hearing, is authorized. (14 M.R.S.A.
3131.) Personal property must be sold by any
method authorized by the Uniform Commercial Code
(11 M.R.S.A. 9-504). Real property ordered sold to
satisfy a judgment is required to be sold in
accordance with provisions identical to the
foreclosure of a mortgage. (14 M.R.S.A. 6321.)
To
execute on a judgment, a creditor generally must
obtain a writ of execution within one year from
the date of final judgment. (14 M.R.S.A. 4652.)
The writ is returnable within three (3) years from
the date of its issuance and renewable every three
(3) years thereafter until the judgment is fully
paid or twenty (20) years has passed. (14 M.R.S.A.
4651.) If the writ has not been renewed prior to
its expiration, a motion requesting the issuance
of an alias execution may be filed with the court,
however, if ten (10) or more years have passed
since the issuance of an original or renewal writ,
another renewal writ generally will not be issued.
(14 M.R.S.A. 4653.)
Judgment
liens on debtor's non-exempt real property and/or
items of personal property are permitted. (14
M.R.S.A. 4651-A.) Liens are created by the filing
of an attested copy of a Writ of Execution; real
estate -- county registry of deeds; motor vehicles
-- Secretary of State, Motor Vehicles; other items
of personal property -- usually Secretary of
State, UCC Division. Certified mail notice of the
filing must be sent to the debtor within 30 days
following the lien filing in order to perfect the
judgment lien, otherwise, the lien will be void.
Foreign Judgments:
Under
the Uniform Enforcement of Foreign Judgments Act,
any judgment, decree, or order of a court of the
United States or of any other court is entitled to
full faith and credit in the State of Maine. (14
M.R.S.A. 8002.) A judgment creditor may seek
enforcement of a foreign judgment by filing an
authenticated copy of the foreign state judgment
and an affidavit setting forth the name and last
known post office address of the judgment debtor
and creditor in the appropriate court of Maine.
Notice is required to be given by the Clerk of the
Court or the creditor to the judgment debtor prior
to any enforcement proceedings. (14 M.R.S.A.
8004.) A foreign judgment has the same effect and
is subject to the same procedures, defenses, and
proceedings for reopening, vacating or staying as
a judgment of the District Court or Superior Court
of Maine. (14 M.R.S.A. 8003.)
Interest:
Unless
the contract or note contains a provision for
interest, the interest rates permitted in the
recovery of accounts or contract may be:
Pre-judgment Interest Rate:
In a District Court, the interest rate is eight
percent (8%) per year. In a Superior Court, the
interest rate is one percent (1%) above the
52-week Treasury bill rate. (14 M.R.S.A. 1602.)
Post-judgment Interest Rate:
In a District Court, the rate is fifteen percent
(15%). In the Superior Court, the rate is seven
percent (7%) above the 52-week Treasury bill rate.
(14 M.R.S.A. 1602-A.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding. The Maine statutes permit
exemption of a debtor's real and personal property
which are used by the debtor and his family as a
residence in the aggregate value of $12,500.00, or
$25,000.00 if minor dependents are residing with
the debtor. If the debtor or a dependent of the
debtor is 60 years of age or older, the aggregate
exempt value may be $60,000.00. Some of the items
of personal property which may be exempt include
clothing, household furniture and furnishings,
musical instruments, etc., that are held primarily
for the personal family or household use of the
debtor or his dependent, with a value not to
exceed $200.00 in each item, jewelry with an
aggregate value not to exceed $750.00, tools of
the trade in an aggregate value not to exceed
$5,000.00. Other property which may be exempt
include health aids, life insurance dividends up
to a certain value, disability benefits and
pension. (14 M.R.S.A. 4422.)
In a
bankruptcy proceeding, a resident of Maine may
claim exemption of only those items of property
prescribed under the federal Bankruptcy Code (11
U.S.C. 522(b)(2)(A), except that any debtor (60
years or older) who qualifies for a residence
exemption under 14 M.R.S.A. 4422(1)(B) may exempt
the amount allowed under that provision.
MARYLAND
Judgments and
Enforcement:
A
judgment entered in a court of the State of
Maryland generally is enforceable for a period of
twelve (12) years (Courts: 5-101(a)(3)); and may
be renewed at any time before the expiration of
the twelve-year period. (Civ. Proc. Rule 2-625.)
A money
judgment that is recorded and indexed in the
county in which the judgment was entered
constitutes a lien on the judgment debtor's land
located in that county. (Courts: 11-402; Civ.
Proc. R.2-621.) Except as to those property that
are exempt under Maryland statutes, all property
of a judgment debtor, wherever situated, including
any property or credit, matured unmatured, may be
attached to satisfy a money judgment. (Courts:
5-301, 5-305.) The wages of a judgment debtor may
be garnished to satisfy a judgment. However, the
greater of $145 per week or 75% of the net wages
of the judgment debtor are exempt from levy.
(Courts: 15-601.1.)
The
State of Maryland permits the entry of a Judgment
by Confession upon the filing of a complaint, the
original or a photocopy of the written instrument
authorizing the confession of judgment for a
liquidated amount, and an affidavit specifying the
amount due, the address or the whereabouts of the
defendant known to plaintiff. Upon entry of a
confession of judgment, the clerk of the court
shall issue a notice informing a defendant of the
entry of judgment. The defendant may within a
specified time move to open, modify, or vacate the
judgment. A judgment creditor may execution a
judgment by confession only upon the expiration of
the time for defendant to contest such judgment.
(Civ. Proc. Rule 2-611.)
Foreign Judgment:
The
State of Maryland generally adopts the Uniform
Enforcement of Foreign Judgments Act. (Courts:
11-801, et seq.) Any judgment, decree or order of
a court of the United States or of any other court
is entitled to full faith and credit in the State
of Maryland.
A
judgment creditor seeking to enforce a foreign
judgment may file an authenticated copy of the
foreign judgment and an affidavit showing the name
and last known post office address of the judgment
debtor and the judgment creditor with the District
Court if the amount does not exceed $2,500, or
with the Clerk of either the District Court or the
Circuit Court if the amount exceeds $2,500.
Promptly upon the filing of the foreign judgment
and affidavit, the clerk of the court shall mail
notice of the filing of the foreign judgment to
the judgment debtor at the address given and shall
note the mailing in the docket. The notice must
include the name and post office address of the
judgment creditor and if the judgment creditor has
an attorney in Maryland, the attorney's name and
address. The judgment creditor may mail a notice
of the filing of the judgment to the judgment
debtor and may file proof of mailing with the
clerk. A judgment so filed has the same effect and
is subject to the same procedures, defenses, and
proceedings for reopening, vacating, or staying as
a judgment of the Courts of the State of Maryland.
(Courts: 11-802(b).)
No
execution or other process for enforcement of a
foreign judgment may be issued until an appeal is
concluded, the time for appeal expires, or a stay
of execution expires or is vacated by the
appropriate Court. (Courts: 11-804.)
Interest:
Legal
rate: The legal rate of interest in the State of
Maryland is six percent (6%) per annum. (Comm. L:
12-102)
The
legal rate of interest in the State of Maryland is
six percent (6%) per annum. (Comm. L: 12-102)
Written
Contract rate: A lender may charge up to a maximum
interest rate of eight percent (8%) per annum on a
written agreement. (Comm. L. 12-103(a)(1).
Judgment
rate: The interest rate on a money judgment is 10%
per annum. (Courts: 11-107.) However, a judgment
arising from a contract may carry the contract
rate on the unpaid balance until its maturity.
(Courts: 11-106.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
Personal
property which may be exempt from execution,
seizure or attachment may include wearing apparel,
books, tools, instruments, or appliances, in an
amount not to exceed $2,500 in value necessary for
the practice of any trade or profession except
those kept for sale, lease, or barter; money
payable in the event of sickness, accident,
injury, or death of any person,
including compensation for
loss of future earnings; professionally prescribed
health aids for the debtor or any dependent of the
debtor; the debtor's interest, not to exceed $500
in value, in household furnishings, household
goods, wearing apparel, appliances, books, animals
kept as pets, and other items that are held
primarily for the personal, family, or household
use of the debtor or any dependent of the debtor;
cash or property of any kind equivalent in value
to $3,000; and any interest in a retirement plan
qualified under § 401 (a), § 403 (a), § 403
(b), § 408, § 408A, § 414 (d), or § 414 (e) of
the United States Internal Revenue Code of 1986,
as amended, or § 409 (as in effect prior to
January 1984) of the United States Internal
Revenue Code of 1954, as amended.
In
addition, an individual debtor domiciled in the
State of Maryland may exempt the debtor's
aggregate interest, not to exceed $2,500 in value,
in real property or personal property. (Courts:
11-504.)
In any
bankruptcy proceeding, a debtor is not entitled to
the federal exemptions provided by § 522 (d) of
the United States Bankruptcy Code. (Courts:
11-504(g).)
Massachusets
Judgments and
Enforcement:
A money
judgment entered in the State of Massachusetts is
generally enforceable for a period of twenty (20)
years. (c. 260, s. 20.) All property which by
common law is liable to be taken on execution, may
be taken and sold, except as otherwise expressly
provided unde the General Laws of Massachusetts.
(c. 235, s. 31.) An original execution must be
issued within one year after the party is entitled
to take it out, and an alias or other successive
execution may only be issued within five years
from the return day of the preceding one. (c. 235,
s. 17.) If a judgment remains unsatisfied after
the execution expired, a new execution may be
obtained by filing a motion to the court. (c. 235,
s. 19.)
Garnishment and attachment
may be conducted through a trustee process
prescribed under Chapter 246 of the General Laws
of Massachusetts. Garnishment of wages is
permitted only upon approval of the court and only
after the plaintiff has given a ten (10) days
written notice to the defendant, by registered
mail, return receipt requested, at his last known
address, place of business or employment. (c. 246,
s. 32(8).) If wages for personal labor or personal
services of a judgment debtor are attached, the
sum up to $125.00 per week may be exempt. Every
writ of attachment must contain a statement of the
amount exempted from attachment and also a
direction to the trustee to pay over the exempted
amount to the defendant in the same manner and at
the same time as such amount would have been paid
if no such attachment had been made. (c. 246, s.
28.)
A
judgment entered in an action upon a contract,
promissory note or other instrument that contains
a stipulation in which a defendant, or a third
party on his behalf, waived or agreed to waive the
issue or service of process in such action may be
set aside and vacated upon the motion of a
defendant. However if it it appears that service
in the usual manner was had upon him or that the
plaintiff sent to him by registered mail at least
seven (7) days before the entry of such action a
notice of his intention to enter the judgment on
said day, and at the time of entry filed an
affidavit that notice has been given, the
defendant generally is deemed to have received
notice, and the judgment will not be set aside.
Any
judgment by confession in an action involving a
contract, promissory note or other written
instrument, made pursuant to a stipulation is
generally void and can be vacated or set aside on
motion of the defendant. (c. 231, 13A.) A person
who may contract may enter into a recognizance
before the Superior Court in any county to
acknowledge a debt. The content of the
recognizance must be substantially as follows: (c.
256, s. 1.)
"Be it
remembered that on this day of , of personally
appeared before and acknowledged himself to be
indebted to of in the sum of to be paid to said on
the day of , (or in years, or in months, from this
day) with interest from this day; and, if not then
paid, to be levied upon his goods, chattels, lands
and tenements, and, for want thereof, upon his
body. In witness whereof said hath hereto set his
hand."
Execution on the original
recognizance may be issued but it must recite the
recognizance and state the amount then due. (c.
256, s. 4.) However, no original execution may be
issued upon such recognizance after the expiration
of three years from the time therein named for
payment of the debt or from the time of the last
payment endorsed thereon. (c. 256, s. 8.)
Foreign Judgment:
The
State of Massachusetts does not adopt the Uniform
Enforcement Of Foreign Judgments Act.
Interest:
Legal
rate: 6% per annum (c. 107, s. 3.)
Written
Contract rate: Such rate as maybe agreed to
between the parties. (c. 107, s. 3.)
Judgment
rate: In all actions based on contractual
obligations, interest on the judgment shall be at
the contract rate, if established, or at the rate
of 12% per annum. (c. 231, s. 6C.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
The land
and building which is owned, occupied or intended
to be occupied by an individual as his principal
residence is generally exempt from levy on
execution and sale for payment of debts to the
extent of $100,000.00. (c. 188, s. 1.) Any person
who is 62 years of age or older, and has filed an
elderly or disabled person's declaration of
homestead, may be entitled to a homestead
exemption on the real property or manufacturued
home which he uses, occupies, and intends to use
and occupy as his principal residence to the
extent of $200,000.00. (c. 188, s. 1A.)
Personal
property of a judgment debtor which may be exempt
from levy on seizure on execution of a judgment
may include necessary wearing apparel, beds and
bedding, one heating unit used for warming the
dwelling house, and the amount each month, not
exceeding $75.00, reasonably necessary to pay for
fuel, heat, water, hot water and light for himself
and his family; household furniture not exceeding
$300.00 in value; bibles, school books and library
not exceeding $200.00 in value; two cows, twelve
sheep, two swine, and four tons of hay; tools,
implements and fixtures for trade or business not
exceeding $500.00 in value; materials and stock
designed and procured by him and necessary for
carrying on his trade or business, and intended to
be used or wrought therein, not exceeding $500.00
in value; provisions intended for family use or
money therefor not exceeding $300.00 in value;
fishing tackle and nets of fisherman actually used
in his business not exceeding $500.00 in value;
uniform of an officer or soldier in the militia
and the arms and accoutrements required by law to
be kept by him; rights of burial and tombs in use
as repositories for the dead; one sewing machine
not exceeding $200.00 in value; share in
co-operative associates not exceeding $100.00 in
value in the aggregate; money for payment of
rental not exceeding $200.00 per month for each
rental period; cash, savings or other deposits in
a banking institution, or money owed to him each
pay period as wages for personal labor or
services, or any combination of such cash,
deposits or money owing, not exceeding $125.00;
public assistance; one automobile not exceeding
$700 in value. (c. 235, s. 34.)
MICHIGAN
Judgments and
Enforcement:
Statutes of Limitation:
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date a cause of action accrues or from
the date injury or damages are discovered or
should have been discovered.
When a
cause of action accrues is a critical issue and
may be different on a case by case basis. A
creditor should always consult actual legal
counsel to determine its right to action under the
applicable statutes.
MINNESOTA
Judgments and
Enforcement:
A money
judgment obtained from the District Court is
enforceable for a period of ten (10) years. (Sec.
550.01) From the time of docketing, the judgment
is a lien, in the amount unpaid, upon all real
property in the county then or thereafter owned by
the judgment debtor. The judgment survives, and
the lien continues, for ten years after its entry.
Child support judgments may be renewed by service
of notice upon the debtor. (Sec. 548.09) Any
person claiming such lien shall file with the
registrar a certified copy of the judgment,
together with a written statement containing a
description of each parcel of land in which the
judgment debtor has a registered interest and upon
which the lien is claimed, and a proper reference
to the certificate or certificates of title to
such land. (Sec. 508.63.)
The
State of Minnesota permits Confession of Judgment
for money due or to become due, or to secure any
person against a contingent liability on behalf of
the defendant, or for both. Any defendant may file
with the court administrator a statement, signed
and verified by the defendant, authorizing the
entry of judgment for a specified sum. The court
administrator shall enter judgment for the amount
specified, as in other cases, and shall attach the
judgment to the statement, which shall constitute
the judgment roll. The judgment shall be final,
and, unless special provision be made for a stay,
execution may issue immediately. (Sec 548.22.)
A
judgment creditor may execute the judgment by
levying on the real and personal property of the
judgment debtor (Sec. 550.10.), including wages.
Unless the judgment is for child support, the
maximum part of the aggregate disposable earnings
of an individual for any pay period subjected to
an execution levy may not exceed the lesser of:
(1) 25 percent of the judgment debtor's disposable
earnings; or (2) the amount by which the judgment
debtor's disposable earnings exceed 40 times the
federal minimum hourly wages in effect at the time
the earnings are payable, times the number of work
weeks in the pay period. (Sec. 550.136.)
Foreign Judgments:
Any
judgment, decree, or order of a court of the
United States or of any other court is entitled to
full faith and credit in the State of Minnesota.
(Sec. 548.26 et seq.) A judgment creditor or his
attorney may seek enforcement of a foreign
judgment by filing a certified copy of the foreign
judgment, together with an affidavit setting forth
the name and last known post office address of the
judgment debtor, and the judgment creditor, in the
office of the court administrator of any district
court of this state.
Notice
of the filing of the foreign judgment to the
judgment debtor at the address given is required.
Such notice shall include the name and post office
address of the judgment creditor and the judgment
creditor's lawyer, if any, in this state. A
judgment so filed has the same effect and is
subject to the same procedures, defenses and
proceedings for reopening, vacating, or staying as
a judgment of a district court or the supreme
court of this state, and may be enforced or
satisfied in like manner. (Sec. 548.27.)
Interest:
Legal
rate: 6% per annum unless otherwise agreed upon
between the parties in writing. (Sec. 334.01.)
Judgment
rate: The rate of interest on judgment is
determined by the court administrator on or before
December 20th of each
year based on the secondary market yield of one
year United
States
treasury bills, for the most recent calendar
month, reported on a monthly basis in
the latest statistical
release of the board of governors of the federal
reserve system.
(Sec.
549.09.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding. The debtor's dwelling
place, together with the land upon which it is
situated to the amount of area and value
hereinafter limited and defined, shall constitute
the homestead of such debtor and the debtor's
family, and be exempt from seizure or sale under
legal process. (Sec. 501.01.) The amount of such
homestead exemption, however, may not exceed
$200,000 or, if the homestead is used primarily
for agricultural purposes, $500,000. (Sec.
510.05.)
Some of
the personal property which may be exempt from
seizure or sale may include the debtor's family
Bible, library, and musical instruments, a seat or
pew in any house or place of public worship, a lot
in any burial ground, wearing apparel, one watch,
utensils, and foodstuffs of the debtor and the
debtor's family; household furniture, household
appliances, phonographs, radio and television
receivers of the debtor and the debtor's family,
not exceeding $4,500 in value; Farm machines and
implements used in farming operations by a debtor
engaged principally in farming, livestock, farm
produce, and standing crops, not exceeding $13,000
in value; tools, implements, machines,
instruments, office furniture, stock in trade, and
library reasonably necessary in the trade,
business, or profession of the debtor, not
exceeding $5,000 in value. Additional exempt
personal property may include certain public
assistance, employee benefits, and retirement
plans.
In a
bankruptcy proceeding, the exemptions set forth in
subsection (d) of section 522 of the Bankruptcy
Act, United States Code, title 11, section 522(d),
are also available to residents of the State of
Minnesota.
MISSISSIPPI
Judgments and Enforcement:
A money
judgment generally becomes a lien on the property
of the judgment debtor in the county in which it
is enrolled, for a period of seven (7) years
(Sections 15-1-43, 15-1-47), and may be renewed.
(Section 11-7-201.) A judgment creditor is
entitled to enforce a judgment by
attaching the judgment
debtor's real and non-exempt personal property
including those that are in the possession of
third parties of which the judgment debtor is
entitled to immediate possession. Although
Mississippi statutes permit wage garnishment, the
amount permitted to be garnished generally may not
exceed twenty-five percent (25%) of the debtor's
disposable income for a workweek. (Section
85-3-4.)
The
State of Mississippi permits limited use of the
entry of a judgment by confession. A debtor may
sign an "office confession of judgment", under
oath, in the manner substantially conforms to the
format and requirements provided under Section
11-7-181 of the Mississippi Code, in the clerk's
office of the Circuit Court. Once such a judgment
is filed with the clerk of the Court, it will
become final and enforceable in the same manner as
any judicial judgments unless it is tainted with
fraud or usury. (Section 11-7-185.)
Foreign Judgments:
A
judgment issued by other states the United States
or of any other court is entitled to full faith
and credit in the same manner as a judgment
rendered by the Courts of Mississippi. A creditor
may seek the enforcement of a foreign judgment by
filing an authenticated copy of the foreign state
judgment and an affidavit setting forth the name
and last known post office address of the judgment
debtor and creditor. Notice must generally be
given by the Clerk of the Court to the judgment
debtor prior to any enforcement proceedings.
Generally, no execution or other process for
enforcement may be commenced until twenty (20)
days after the date the foreign judgment is filed.
(Section 11-7-305.)
Interest:
Legal
Rate: 8% per annum or on all notes, accounts and
contracts if no specific rate is agreed upon.
(Section 75-17-1(1).)
Contract
Rate: 10% or 5% above the discount rate, whichever
is the greater, per annum on any loan or other
extension of credit. "Discount rate" refers to the
rate on ninety-day commercial paper in effect at
the Federal Reserve Bank in the Federal Reserve
district where the lender is located. (Section
75-17-1(2),)
Other
Rates: Any borrower or debtor may contract and
agree, in writing, to pay a lender or extender of
credit any finance charge at a rate in excess of
the legal rate or contract rate if the sum
financed is over $2,000.00.
Judgment
Rate: All money judgments are entitled to interest
either at the rate specified under the contract
upon which the debt is derived, or at a rate to be
set by the Judge, which is generally the legal
rate of 8%.
Exemptions:
A debtor
generally may claim exemption of his homestead and
certain personal property from execution of a
judgment against him or in a bankruptcy
proceeding. Mississippi statutes permits every
citizen to claim exemption from execution or
attachment his homestead up to a value of
seventy-five thousand dollars ($75,000.00) and
selection of certain personal property up to a
value of two hundred fifty dollars ($250.00).
(Section 85-3-23.) Other exemptions may include
tangible personal property such as household
goods, wearing apparel, books, animals or crops,
motor vehicles, tools of the trade, cash, and
professionally prescribed health aids, in the
aggregate value not exceeding ten thousand dollars
($10,000.00). In addition, certain insurance
proceeds, public benefits, retirement or employee
benefits may also be exempt. (Section 85-3-1.)
While
the federal Bankruptcy Code also provides certain
exemptions, Mississippi does not permit the
election of federal exemptions. (Section 85-3-2.)
This means that a resident of Mississippi may only
claim exemption of those property and to the
extent as permitted under Chapter 3 of Title 85 of
the Mississippi Code even if the exemption
provided under the federal Bankruptcy Code may be
more beneficial to the judgment debtor.
MISSOURI
Judgments and Enforcement:
Executions upon a judgment
may be issued at any time within ten (10) years
after the rendition of such judgment (Section
513.020) and may be revived upon the filing of an
action with the Court at any time within (10)
years. (Section 511.370.)
A
judgment rendered by any Circuit Court may become
a lien on the real property of the judgment debtor
upon the recording of an abstract of judgment in
the county in which the real property is situated.
(Section 511.350(1), Section 511.500.) A judgment
rendered by the Associate Circuit Court may become
a lien on a judgment debtor's real property only
if a transcript of the judgment is filed with the
Clerk of the Circuit Court. (Section 511.350(2).)
A judgment rendered in the Small Claims Court does
not become a lien against the real estate of the
judgment debtor. (Section 511.350(3).)
All
non-exempt goods and chattels, rights and shares
in stocks, gold and silver coin, bills or other
evidence of debt and real property of the judgment
debtor are generally liable to be seized and sold
upon attachment and execution. (Section 513.090.)
The wages of a judgment debtor may be garnished,
however, the maximum amount of his aggregate
earnings for any workweek which is subject to
garnishment, after deduction from those earning
all amounts required to be withheld by law, may
not exceed 25% or thirty times the federal minimum
hourly wage prescribed by section 6(a)(1) of the
Fair Labor Standards Act of 1938 in effect at the
time the earnings are payable, or, if the employee
is the head of a family and a resident of the
State of Missouri, 10%, whichever is less.
(Section 525.030.) Wages earned by a judgment
debtor outside the State of Missouri generally are
exempt from attachment. (Section 525.300.)
A
judgment by confession may be entered without
action, either for money due or to become due, or
to secure any person against contingent liability
on behalf of the defendant, or both. (Section
511.070.) A defendant, or his attorney in fact,
may file with the appropriate court a statement in
writing, signed by him and verified by affidavit,
stating the amount for which the judgment may be
rendered, the concise facts out of which the
liability arose, the sum confessed to be due or to
become due, and authorizing the entry of a
judgment by confession.( Section 511.080, Section
511.100.) The Court generally will render judgment
for the amount confessed after first being
satisfied of the identity of the defendant, if
present, or, if not present, that he executed the
statement in writing, and made the affidavit
required. (Section 511.090.)
Foreign Judgment:
The
State of Missouri generally adopts the Uniform
Enforcement of Foreign Judgments Act. Any
judgment, decree or order of a court of the United
States or of any other court is entitled to full
faith and credit in the State of Missouri. (Rule
74.14, Missouri Rules of Civil Procedure.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, a
certified copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The clerk of the court and the
creditor are required to mail a written notice of
the filing of the foreign judgment to the judgment
debtor at the address given. The notice must
include the name and post office address of the
judgment creditor and, if the judgment creditor
has an attorney in this state, the attorney's name
and address. Lack of mailing notice of filing by
the clerk does not affect the enforcement
proceedings if proof of mailing by the judgment
creditor has been filed.
Interest:
Legal
rate: 9% per annum (Section 408.020.)
Written
Contract rate: Parties to a written contract for
money may agree to a rate of interest not
exceeding 10% per annum, except that, when the
"market rate" exceeds 10% per annum, the parties
may agree, in writing, to a rate of interest not
exceeding the "market rate". (Section 408.030.)
Notwithstanding this limitation, it is lawful for
parties to agree in writing to any rate of
interest, fees, and other terms and conditions in
connection with loan to a corporation, general
partnership, limited partnership or limited
liability company; business loan of $5,000.00 or
more; real estate loan, other than residential
real estate loans and loans of less than $5,000.00
secured by real estate used for an agricultural
activity; or loan of $5,000.00 or more secured
solely by certificates of stock, bonds, bills of
exchange, certificates of deposit, warehouse
receipts, or bills of lading pledged as collateral
for the repayment of such loans.
Judgment
rate: Interest allowed on all money due upon a
money judgment is 9%, or the rate which is agreed
to by the parties in the contract upon which it is
sued. (Section 408.040.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
The
homestead of every person, consisting of a
dwelling house and appurtenances, and the land
used in connection
therewith, not exceeding the
value of $8,000.00, is generally exempt from
attachment and execution. This homestead exemption
shall not be allowed for
more than one owner if one owner claims the entire
amount allowed but, if more than one owner claims
an exemption of the same property, , the exemption
allowed to each of such owners shall not exceed,
in the aggregate, the total exemption allowed as
to any one homestead. (Section 513.475.)
Personal
property of a debtor which are exempt from
attachment and execution may include household
furnishings, household goods, wearing apparel,
appliances, books, animals, crops or musical
instruments that are held primarily the use of the
debtor and his dependent not to exceed $1,000 in
value in aggregate; jewelry not to exceed $500.00
in value in aggregate; any other property of any
kind, not to exceed in value $400.00 in the
aggregate; any implements, professional books or
tools of the trade not to
exceed $2,000.00 in value in
the aggregate; any motor vehicle, not to exceed
$1,000.00 in value; any mobile home used as the
principal residence, not to exceed $1,000.00 in
value; any one or more unmatured life insurance
contracts owned by the debtor, other than a credit
life insurance contract; the amount of any accrued
dividend or interest under, or loan value of, any
one or more unmatured life insurance contracts
owned by the debtor under which the insured is the
debtor or or an individual of whom the debtor is a
dependent; provided, however, that if proceedings
under Title 11 of the United States Code are
commenced by or against such person, the amount
exempt in such proceedings shall not exceed in
value $5,000.00 in the aggregate less any amount
of property of the debtor transferred by the life
insurance company to itself, not to be exempt from
claim for child support; professional heath aids
for the debtor or his dependent; social security
benefit, unemployment compensation or a local
public assistance benefit; veteran's benefit;
disability, illness or unemployment benefit; and
alimony, support or separate maintenance, not to
exceed $500.00 a month. In addition, payments made
under certain pension or annuity plans and
spendthrift trusts created for the benefit of
employees may also be exempt. (Section 513.430.)
If the
debtor is the head of a family, he may select and
hold, exempt from execution, any other property,
real, personal or mixed, or debts and wages, not
exceeding in value the amount of $850.00 plus
$250.00 for each of such person's unmarried
dependent children under the age of eighteen
years, except 10% of any debt, income, salary or
wages due such head of a family. (Section
513.440.)
In a
bankruptcy proceeding, a debtor who is a resident
of the State of Missouri, is permitted to exempt
from property of the estate any property that is
exempt from attachment and execution under the law
of the state of Missouri or under federal law,
other than Title 11, United States Code, Section
522(d), and no such person is authorized to claim
as exempt the property that is specified under
Title 11, United States Code, Section 522(d).
(Section 513.427.)
MONTANA
Judgments and Enforcement:
A
judgment, either domestic or foreign, is
enforceable in the State of Montana for a period
of ten (10) years. ( MCA 27-2-201.) A writ of
execution on the judgment may be issued within six
(6) years of entry of the judgment (MCA
25-13-101), and may be revived after expiration
upon filing a motion with the court (MCA
25-13-102).
A
judgment may become a lien upon all real property
of the judgment debtor that is not exempt from
execution in the county where the property is
located for a period of 6 years upon the docketing
of a judgment or upon the filing of a transcript
of the judgment. (MCA 25-9-301, 25-9-302.) All
goods, chattels, moneys, and other property, both
real and personal, not exempt by law, of a
judgment debtor are subject attachment and
execution. (MCA 25-13-501.) The wages of a
judgment debtor may also be garnished but the
maximum amount which may be garnished may not
exceed the lesser of 25% of his disposable
earnings for a workweek, or the amount by which
his disposable earnings for the week exceed 30
times the federal minimum hourly wage in effect at
the time the earnings are payable. (MCA
25-13-614.)
Confession of judgment is
permitted under the laws of the State of Montana.
(MCA 27-9-101.) A defendant may file with the
clerk of the appropriate court a statement in
writing, signed and verified by the defendant,
stating the amount of the judgment which is
authorized to be entered, concise facts out of
which the obligation arose and the amount
confessed to be justly due or become due. If the
confessed judgment is made for the purpose of
securing a plaintiff against contingent liability,
the statement must state concisely the facts
constituting the liability and that the sum
confessed therefor does not exceed the same. (MCA
27-9-102.)
Foreign Judgment:
The
State of Montana generally adopts the Uniform
Enforcement of Foreign Judgments Act. (MCA
25-9-501.) Any judgment, decree or order of a
court of the United States or of any other court
is entitled to full faith and credit in the State
of Montana (MCA 25-9-502.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, a
certified copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The affidavit must also include
a statement that the foreign judgment is valid and
enforceable, and the extent to which it
has been satisfied. (MCA
25-9-504.) A judgment so filed has the same effect
and is subject to the same procedures, defenses,
and proceedings for reopening, vacating, or
staying as a judgment of a district court of the
State of Montana and may be enforced or satisfied
in like manner. (MCA 25-9-503.)
Upon the
filing of the foreign judgment and affidavit, the
judgment creditor or someone on his behalf is
required to mail a notice of the filing of the
judgment and affidavit, attaching a copy of each
to the notice, to the judgment debtor and to his
attorney of record, if any, each at his last known
address, by certified mail, return receipt
requested. The notice must include the name and
post office address of the judgment creditor and
judgment creditor's attorney, if any, in the State
of Montana. The judgment creditor is also required
to file an affidavit with the clerk of the court
setting forth the date the notice was mailed.
Although execution upon the foreign judgment may
be issued, proceeds of an execution may not be
distributed to the judgment creditor earlier than
thirty (30) days after the date of mailing the
notice. (MCA 25-9-504.)
Interest:
Legal
rate: 10% per annum on any instrument not of
writing, an account stated, moneys lent or due on
any settlement of accounts, and moneys received
for the use of another, except a judgment. (MCA
31-1-106.)
Written
Contract rate: Parties may agree in writing to any
interest rate not to exceed 15% or an amount that
is 6 percentage points per annum above the prime
rate of major New York banks, as published in the
Wall Street Journal edition dated 3 business days
prior to the execution of the agreement. (MCA
31-1-107.)
Judgment
rate: 10% per annum or such rate as specified in a
contractual obligation. (MCA
25-9-205.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
A
judgment debtor is entitled to a homestead
exemption of his dwelling house or mobile home,
and all appurtenances thereon, from execution or
forced sale. (MCA 70-32-101, 70-32-201.) If the
debtor is married, the homestead may be selected
from the property of either spouse. (MCA
70-32-103.) The value of a homestead may not
exceed $60,000. (MCA 70-32-104(1).) If a debtor
who is an owner of an undivided interest in real
property claims a homestead exemption, he is
limited to an exemption amount proportional to his
undivided interest only. (MCA 70-32-104(2).)
A
debtor, who is a resident of the State of Montana
is also entitled to claim exemption of certain
personal property from execution or forced sale.
(MCA 25-13-606.) Some of the personal property
which may be exempt from execution, without
limitation, are professionally prescribed health
aids for the debtor or his dependent, federal
social security or local public assistance,
veterans' benefits, disability or illness
benefits, benefits paid or payable for medical,
surgical, or hospital care to the extent they are
used or will be used to pay for the care,
maintenance and child support, a burial plot, and
social security legislation benefits. (MCA
25-13-608.) Personal property which are exempt up
to a limited value may include household
furnishings and goods, appliances, jewelry,
wearing apparel, books, firearms and other
sporting goods, animals, feed, crops, and musical
instruments to the extent of a value not exceeding
$600.00 in any item or $4,500.00 in aggregate
value, one motor vehicle not to exceed $1,200 in
value, implements, professional books and tools of
the trade not to exceed $3,000.00 in aggregate
value, and any unmatured life insurance contracts
not to exceed $4,000.00 in value. (MCA 25-13-609.)
In
situations where money or property has been sold,
lost, damaged or destroyed, and the judgment
debtor has been indemnified, he is entitled for
six (6) months to an exemption of proceeds that
are traceable. Earnings of the judgment debtor may
also remain exempt for 45 days after receipt by
him and while in his possession in a form that is
traceable. For the purpose of tracing, the
principles of first-in first-out, last-in
first-out, or any other reasonable basis for
tracing selected by the judgment debtor may be
applied. (MCA 25-13-610.)
In a
bankruptcy proceeding, a debtor may not claim
exemption of the property specified in 11 U.S.C.
522(d) except for those property which may be
exempt from execution of judgment under the laws
of Montana, unemployment benefits and certain
retirement plan benefits. (MCA
31-2-106.)
NEBRASKA
Judgments and Enforcement:
A
judgment generally becomes a lien on the property
of the judgment debtor in the county with which it
is filed. (Section 23-1303.) It may be enforced by
execution or garnishment against the real and
personal property of the judgment debtor, except
as to those property that are subject to
exemption. The garnishment of a debtor's wages is
generally permitted under Nebraska law, but the
amount garnished generally may not exceed
twenty-five percent (25%), or fifteen percent
(15%) if the debtor is the head of a family, of
the aggregate disposable earnings of an individual
for any workweek. (Section 25-1558.)
Nebraska
law permits a debtor to confess judgment with the
assent of the creditor. A debtor who wishes to
confess to judgment must personally appear in a
court of competent jurisdiction and file in
writing a statement identifying the debt or cause
of action. A judgment by confession generally is
enforceable in the same manner as a judgment
rendered by the court, and serves as a release of
errors. (Sections 25-1309, 25-1310, 25-1311.)
A
judgment may become dormant if it is not executed
within a period of five (5) years from the date it
was rendered. (Section 25-1515.) It may, however,
be revived if appropriate action is taken within
ten (10) years from the date it became dormant.
(Section 25-1420.)
Foreign Judgments:
A
judgment issued by a court in the United States or
any other court is generally entitled to full
faith and credit under the Nebraska Uniform
Enforcement of Foreign Judgment Act. (Section
25-1587.02.) A judgment creditor may seek the
enforcement of a foreign judgment by filing an
authenticated copy of the foreign state judgment
and an affidavit setting forth the name and last
known post office address of the judgment debtor
and creditor in the District Court of Nebraska.
Notice must generally be given by the Clerk of the
Court to the judgment debtor prior to any
enforcement proceedings. (Section 25-1587.04.) A
foreign judgment has the same effect and is
subject to the same procedures, defenses, and
proceedings for reopening, vacating or staying as
a judgment of the State of Nebraska. (Section
25-1587.03.)
Interest:
Legal
Rate: Six percent (6%). (Section 45-102.)
Contract
Rate: Any rate which may be agreed upon between
the parties but not exceeding sixteen percent
(16%) per annum. (Section 45-101.03.) However,
this interest rate is subject to certain
exceptions provided in Section 45-101.04 of the
Nebraska Statute. Some of the exceptions include
transactions involving licensed loan brokers, open
credit accounts for goods and services, business
or agricultural loans secured by real property,
installment contracts for sale of goods or
services.
Judgment
Rate: One percent (1%) above the U.S. government
bond rate. (45-103.)
Exemptions:
A debtor
generally may claim exemption of his homestead up
to a value allowed by law and certain personal
property from execution of a judgment against him
or in a bankruptcy proceeding. Nebraska statutes
permits every citizen to claim exemption from
execution or attachment his homestead up to a
value of twelve thousand five hundred dollars
($12,500.00), (Section 40-101), and certain
personal property up to a value of two thousand
five hundred dollars ($2,500.00), except wages.
(Section 25-1552.) Some of the property which may
be subject to exemption includes the immediate
personal possessions of the debtor and his family,
wearing apparels, household furniture and
furnishings up to an aggregate fair market value
of one thousand five hundred dollars ($1,500.00),
books or tools of trade or automobile up to an
aggregate fair market value of two thousand four
hundred dollars ($2,400.00). (Section 25-1556.)
While
the federal Bankruptcy Code also provides certain
exemptions, Nebraska does not permit the election
of federal exemptions. (Section 25-15,105.) This
means that a resident of Nebraska may only claim
exemption of those property and to the extent as
permitted under its statutes even if the exemption
provided under the federal Bankruptcy Code may be
more beneficial to the judgment debtor.
NEVADA
Judgments and
Enforcement:
A
judgment entered in the court of the State of
Nevada generally is enforceable for a period of
six (6) years and may be renewed. (NRS 11.190.) It
may become a lien on a judgment debtor's real
property once a transcript or abstract of the
original judgment is filed with the recorder of
the county in which judgment debtor's real
property is located. The lien will continue for a
period of six (6) years and may be renewed. (NRS
17.150.)
A
judgment creditor may execute against all goods,
chattels, moneys and other property, real and
personal, of the judgment debtor, not exempt by
law, and all property and rights of property
seized and held under attachment in the action.
(NRS 21.080.) A judgment debtor's wages may also
be garnished. However, 75% of the disposable
earnings of a judgment debtor during any pay
period, or 30 times the minimum hourly wage
prescribed by section 6(a)(1) of the federal Fair
Labor Standards Act of 1938, are exempt from
execution of a judgment. (NRS 21.090(g).)
Nevada laws permits judgment
by confession for debt due or contingent
liability. A debtor may confess judgment, without
action, either for money due or to become due or
to secure any person against contingent liability,
by filing a written statement with the court. The
written statement must be signed and verified
under oath by the debtor, and must contain the
amount authorized to be entered in the judgment,
concise facts out of which the obligation arose
and the actual amount due. The clerk's fee for
filing and entering the judgment and affidavit is
$24.00 (NRS 17.110.)
Foreign Judgment:
The
State of Nevada generally adopts the Uniform
Enforcement of Foreign Judgments Act. (NRS
17.330-17.400..) Any judgment, decree or order of
a court of the United States or of any other court
is entitled to full faith and credit in the State
of Nevada. (NRS 17.340.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
exemplified copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The affidavit must also include
a statement that the foreign judgment is valid and
enforceable, and the extent to which it
has been satisfied. (NRS
17.360.) A judgment so filed has the same effect
and is subject to the same procedures, defenses,
and proceedings for reopening, vacating, or
staying as a judgment of a court in the State of
Nevada and may be enforced or satisfied in like
manner. (NRS 17.350.)
Upon the
filing of the foreign judgment and affidavit, the
judgment creditor or someone on his behalf is
required to mail a notice of the filing of the
judgment and affidavit, attaching a copy of each
to the notice, to the judgment debtor and to his
attorney of record, if any, each at his last known
address, by certified mail, return receipt
requested. The notice must include the name and
post office address of the judgment creditor and
judgment creditor's attorney, if any, in the State
of Nevada. The judgment creditor is also required
to file an affidavit with the clerk of the court
setting forth the date the notice was mailed. No
execution or other process for enforcement of a
foreign judgment may issue until 30 days after the
date of mailing the notice of filing. (NRS
17.360.)
Interest:
Legal
rate: Interest on transactions where there is no
written contract may be charged a rate equal to
the prime rate at the largest bank in Nevada, as
ascertained by the commissioner of financial
institutions, on January 1 or July 1, as the
case may be, immediately
preceding the date of the transaction, plus 2
percent. (NRS 99.040.)
Written
Contract rate: Any rate which the parties to a
written contract may agree. (NRS 99.050. )
Judgment
rate: Either the rate specified by contract or a
rate equal to the prime rate at the largest bank
in Nevada as ascertained by the commissioner of
financial institutions on January 1 or July 1, as
the case may be, immediately preceding the date of
judgment, plus 2 percent. The rate must be
adjusted accordingly on each January 1 and July 1
thereafter until the judgment is satisfied. (NRS
17.130.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
In
general, the equity in the homestead of a judgment
debtor may be exempt from sale on execution and
from process of court to the extent of $125,000.00
in value. (NRS 115.010.) Homestead may include a
quantity of land, together with the dwelling house
thereon and its appurtenances, a mobile home
whether or not the underlying land is owned by the
debtor, or a unit or real or personal property,
with any appurtenant limited common elements, or
its interest in the common elements of the
common-interest community, selected by the debtor
or his spouse, or either of them, or a single
person. (NRS 115.005.)
Under
NRS 21.090 some of the personal property of a
judgment debtor which may be exempt from execution
may include private libraries not to exceed $1,500
in value, and all family pictures and keepsake,
necessary household goods and yard equipment not
to exceed $3,000 in value, farm trucks, farm
stock, farm tools, farm equipment, supplies and
seed not to exceed $4,500 in value, professional
libraries, office equipment, office supplies and
the tools, instruments and materials used to carry
on the trade of the judgment debtor for the
support of himself and his family not to exceed
$4,500 in value, the cabin or dwelling of a miner
or prospector, his cars, implements and appliances
necessary for carrying on any mining operations
and his mining claim actually worked by the
debtor, not exceeding $4,500 in total value, one
vehicle if the judgment debtor’s equity does not
exceed
$4,500, all money,
benefits, privileges or immunities accruing or in
any manner growing out of any life insurance, if
the
annual premium paid
does not exceed $1,000, any prosthesis or
equipment prescribed by a physician or dentist,
money, not to exceed $500,000 in present value
held in qualified retirement plans, employee
pension plan or profit sharing plans, money or
other benefits held pursuant to the order of a
competent jurisdiction for child or spousal
support, education and maintenance.
In a
bankruptcy action, residents of the State of
Nevada are not allowed those exemptions specified
in subsection (d) of section 522 of the Bankruptcy
Act of 1978 (92 Stat. 2586). (NRS
21.090(3).)
Statutes of
Limitation:
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date from the last transaction or the
last item charged or last credit given; and
whenever any payment on principal or interest has
been or shall be made upon an existing contract,
whether it be a bill of exchange, promissory note
or other evidence of indebtedness if such
payment be made after the
same have become due, the limitation generally
commences from the time the last payment was made.
(NRS 11.200.)
NEW HAMPSHIRE
Judgments and
Enforcement:
A
judgment rendered by the court of the State of New
Hampshire is enforceable for a period of 20 years.
(§ 508:5.) Execution of the judgment may be
issued at any time within 2 years after the
judgment was rendered, or after the return day of
the former execution. (§ 527:6) All non-exempt
property, real and personal, of a judgment debtor
may be attached to satisfy a judgment. (§ 511:1.)
A judgment may become a lien on the real and
personal property of the debtor only through the
attachment or execution process. Real property
maybe attached on a writ of mesne process and
continues for a period of six years after the
judgment is rendered, and an attachment lien on
personal property continues for 60 days. (§
511:3, § 511:55.)
Foreign Judgment:
The
State of New Hampshire generally adopts the
Revised Uniform Enforcement of Foreign Judgments
Act. (Title 53, Chapter 524A.) Any judgment,
decree or order of a court of the United States or
of any other court is entitled to full faith and
credit in the State of New Hampshire. (§
524-A:1.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The clerk of the Court and the
judgment creditor are required to mail notice of
the filing of the foreign judgment to the judgment
debtor. The notice shall include the name and post
office address of the judgment creditor and the
judgment creditor's lawyer, if any, in the state
of New Hampshire. The judgment creditor must file
with the court proof of mailing the notice. Lack
of mailing notice of filing by the clerk does not
affect the enforcement proceedings if proof of
mailing by the judgment creditor has been filed.
No execution or other process for enforcement of a
foreign judgment filed may be issued until 15 days
after the date the judgment is filed. (§
524-A:3.)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses, and
proceedings for reopening, vacating, or staying as
a judgment of the court and may be enforced or
satisfied in like manner to any New Hampshire
state court judgment. (§ 524-A:2.)
The
statute of New Hampshire specifically provides
that in suits on judgments rendered in the courts
of the Dominion of Canada or any province thereof,
said judgments shall be given such faith and
credit as is given in the courts of the Dominion
of Canada or any province thereof to the judgments
rendered in the courts of New Hampshire. (§
524:11.)
Interest:
Legal
rate: 10% per annum in all business transactions
unless otherwise agreed upon in writing. This rate
does not apply to consumer credit transactions.
(§ 336:1-I.)
Contract
Rate: Such rate as may be agreed upon in writing
between the parties. (§ 336:1-I.)
Judgment
rate: The annual simple rate of interest on
judgments, including prejudgment interest, shall
be a rate determined by the state treasurer as the
prevailing discount rate of interest on 52-week
United States Treasury bills at the last auction
thereof preceding the last day of September in
each year, plus 2 percentage points, rounded to
the nearest tenth of a percentage point. (§
336:1-II.)
Exemptions:
In
general, a debtor may claim exemption of homestead
and certain personal property from attachment or
execution or forced sale for the payment of debts.
New
Hampshire permits homestead exemption up to a
value of $30,000. The homestead right may include
manufactured housing, which is owned and occupied
as a dwelling by the debtor but does not include
the land upon which the manufactured housing is
situated if the land is not also owned by the
owner the manufactured housing. (§ 480:1.)
Personal
property and goods which may be exempted from
attachment and execution may include wearing
apparel necessary for the use of the debtor and
his family; comfortable beds, bedsteads and
bedding necessary for the debtor, his wife and
children; household furniture to the value of
$3,500; one cook stove, one heating stove and one
refrigerator and necessary utensils belonging to
the same; one sewing machine, kept for use by the
debtor or his family; provisions and fuel to the
value of $400; uniform, arms and equipment of
every officer and private in the militia; bibles,
school books and library of any debtor, used by
him or his family, to the value of $800; tools of
the debtor's occupation to the value of $5,000;
one hog and one pig, and the pork of the same when
slaughtered; Six sheep and the fleeces of the
same; one cow; a yoke of oxen or a horse, when
required for farming or teaming purposes or other
actual use; and hay not exceeding 4 tons; domestic
fowls not exceeding $300 in value; the debtor's
interest in one pew in any meeting house in which
he or his family usually worship; the debtor's
interest in one lot or right of burial in any
cemetery; one automobile to the value of $4,000;
jewelry owned by the debtor or his family to the
value of $500; the debtor's interest in any
property, not to exceed $1,000 in value, plus up
to $7,000 of any unused amount of the exemption
provided under paragraphs III, VI, VIII, IX, XVI,
and XVII of section 511:2.
Statutes of
Limitation:
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date a cause of action accrues or from
the date injury or damages are discovered or
should have been discovered.
NEW JERSEY
Judgments and
Enforcement:
A
judgment in the State of New Jersey generally may
be enforced or revived for a period of twenty (20)
years from the date of entry (Sec. 2A:14-5.) All
non-exempt real estate and personal property of a
judgment debtor may be levied upon and sold by
executions for the payment and satisfaction of the
judgment. However, no judgment obtained for the
payment and satisfaction of any employment wage
tax, including penalties, may be enforced pursuant
to this section. (Sec. 2A:17-17, 2A:17-20.)
Upon
application, a writ of execution of a money
judgment may be issued against a judgment debtor's
non-exempt goods and chattels, lands if such
judgment is rendered in the Superior Court, and
the judgment debtor's body if the court in which
the judgment is rendered shall, by special order,
so direct and shall designate in said order the
maximum number of days during which the judgment
debtor may be detained in custody under such body
execution, in no case to exceed one hundred days.
(Sec. 2A:58-4.)
Generally, when execution of
the judgment is against the wages, debts,
earnings, salary, income from trust funds or
profits of a judgment debtor, notice of such wage
execution to the judgment debtor is required.
(Rule 4:59-1(d), Rules of Court.) The notice of
wage execution shall be served on the judgment
debtor in accordance with Rule 1:5-2. The judgment
debtor may request a hearing to object to the wage
execution within ten (10) days of receipt of the
written notice, and a hearing will be scheduled by
the clerk of the court within seven (7) days of
receipt of the objection. The judgment creditor
may waive in writing the right to appear at the
hearing on the objection and rely on the papers
submitted. However, in no case shall the amount
specified in an execution issued out of any court
against the wages, debts, earnings, salary, income
from trust funds or profits due and owing, or
which may thereafter become due and owing to a
judgment debtor, exceed 10%, unless the income of
such debtor shall exceed the sum of $7,500.00 per
annum, in which case the court may order a larger
percentage. (Sec. 2A:17-56.)
Confession of judgment is
permitted under Rule 4:45 of the Rules Of Court of
the State of New Jersey only upon motion after
notice to the defendant served in lieu of summons
in accordance with Rule 4:4-4 or by registered or
certified mail. On the return day of the motion,
the attorney at law, confessing judgment pursuant
to the warrant, shall produce to the court the
warrant, the bond or instrument, and the affidavit
of the plaintiff or plaintiff's attorney or agent,
stating the true consideration for the liability
stated in the instrument, the amount then justly
due the plaintiff, and that the judgment is not
confessed with a fraudulent intent or to protect
the property of the defendant from creditors. The
court may require additional proof in such form as
it directs that the warrant was duly executed, the
person liable is living and was notified of the
application, and the debt or a part thereof is
unsatisfied. The court shall then, if satisfied
with the proofs, order entry of a judgment for
such amount as it finds to be due. (Sec. 2A:16-13)
Foreign Judgments:
Under
the Uniform Enforcement Of Foreign Judgments Act
of the State of New Jersey, (Sec.2A:49A-25, et
seq.) ,a judgment, decree, or order of a court of
the United States or of any other court is
entitled to full faith and credit in this State. A
judgment creditor who wishes to enforce a foreign
judgment may file file with the Clerk of the
Superior Court an affidavit setting forth the name
and last known post office address of the judgment
debtor, and the judgment creditor. The affidavit
shall further set forth whether the time to appeal
the foreign judgment has expired and whether the
court of origin has granted a stay of execution.
In addition, in the case of a judgment entered by
default, the affidavit shall so state and shall
set forth the expiration date under the rules of
the court of origin for vacating the default.
(Sec. 2A:49A-28.) Notice of the filing of the
foreign judgment is required to be mailed to the
judgment debtor at the address given by the Clerk
and the judgment creditor. No execution or other
process for enforcement of a foreign judgment
filed under this act may be issue until 14 days
after the date the judgment is filed. A judgment
so filed has the same effect and is subject to the
same procedures, defenses and proceedings for
reopening, vacating, or staying as a judgment of a
Superior Court of this State and may be enforced
in the same manner. (Sec. 2A:49A-27.)
Interest:
Legal Rate: Six percent (6%)
per annum for or loan of any money, wares,
merchandise, goods and chattels. (Sec. 31:1-1(a).)
Contract
Rate: The rate of interest on a written contract
may not exceed sixteen percent (16%) per annum.
(Sec. 31:1-1(a).)
Judgment
Rate: For judgments not exceeding the monetary
limit of the Special Civil Part at the time of
entry, i.e., less than $10,000.00, regardless of
the court in which the action was filed:
commencing January 2, 1986 and for each calendar
year thereafter, the annual rate of interest shall
equal the average rate of return, to the nearest
whole or one-half percent, for the corresponding
preceding fiscal year terminating on June 30, of
the State of New Jersey Cash Management Fund
(State accounts) as reported by the Division of
Investment in the Department of the Treasury.
(Rule 4:42-11(a)(ii).)
For
judgments exceeding the monetary limit of the
Special Civil Part at the time of entry: in the
manner provided above until September 1, 1996;
thereafter, at the rate provided in Rule
4:42-11(a)(ii) above plus 2% per annum.
Exemption:
Goods
and chattels, shares of stock or interests in any
corporation and personal property of every kind,
not exceeding in
value,
exclusive of wearing apparel, $1,000.00, and all
wearing apparel generally are reserved for a
judgment debtor's family use before and after
death, and are not subject to execution. (Sec.
2A:17-19.) Household goods and furniture not
exceeding $1,000.00 in value of a person shall
also be exempt from attachment, except for a debt
incurred in the purchase thereof. (Sec. 2A:26-4.)
In addition, disability benefits, sickness
insurance policies, workers' compensation
benefits, and retirement benefits are generally
exempt from execution. (Sec. 17:18-12, 34:15-29,
43:21-15(c), 43:13-9, 37.5.)
The
State of New Jersey does not appear to provide a
statutory provision for homestead
exemption.
NEW MEXICO
Judgments and
Enforcement:
Coming
Soon
NEW YORK
Judgments and
Enforcement:
A money
judgment obtained in the State of New York is
generally enforceable for a period of twenty (20)
years. (Chptr. 8, Art. 2, Sec. 211, New York State
Consolidated Laws.) It may be enforced against any
property which could be assigned or transferred,
whether it consists of a present or future right
or interest and whether or not it is vested,
unless it is exempt from application to the
satisfaction of the judgment. A money judgment
entered upon a joint liability of two or more
persons may be enforced against individual
property of those persons summoned and joint
property of such persons with any other persons
against whom the judgment is entered. (Chptr. 8,
Art 52, Sec. 5201, New York State Consolidated
Laws.) In general, ninety per cent (90%) of the
earnings of the judgment debtor for his personal
services rendered within sixty days before, and at
any time after, an income execution is delivered
to the sheriff, is exempt from execution of a
money judgment. (Chptr. 8 Art. 52, Sec. 5205(d),
New York State Consolidated Laws.)
A money
judgment generally may become a lien against the
real property of a judgment debtor either from the
time of the docketing of the judgment with the
clerk of the county in which the property is
located until ten years after filing of the
judgment-roll, or from the time of the filing with
such clerk of a notice of levy pursuant to an
execution until the execution is returned. (Chptr.
8 Art. 52, Sec. 5203, New York State Consolidated
Laws.)
The
State of New York permits Confession of Judgment.
A debtor may execute an affidavit stating the sum
for which judgment may be entered, authorizing the
entry, and stating the county where he resides, or
if he is a non-resident, the county in which the
judgment may be entered. The judgment may be
docketed and enforced in the same manner and with
the same effect as a judgment in an action in the
supreme court. No judgment by confession may be
entered after the defendant's death. (Chptr. 8,
Art. 32, Sec. 3218, New York State Consolidated
Laws.)
Foreign Judgments:
Any
judgment, decree, or order of a court of the
United States or of any other court is entitled to
full faith and credit in the State of New York. A
judgment creditor may seek enforcement of a
foreign judgment by filing an authenticated copy
of the foreign state judgment, issued within 90
days of the date of authentication in the office
of any county clerk of the state, together with an
affidavit stating that the judgment was not
obtained by default in appearance or by confession
of judgment, that it is unsatisfied in whole or in
part, the amount remaining unpaid, and that its
enforcement has not been stayed, and setting forth
the name and last known address of the judgment
debtor. Within thirty days after filing of the
judgment and the affidavit, the judgment creditor
shall mail notice of filing of the foreign
judgment to the judgment debtor at his last known
address. The proceeds of an execution shall not be
distributed to the judgment creditor earlier than
thirty days after filing of proof of service.
(Chptr. 8, Art. 54, Sec. 5401, et seq., New York
State Consolidated Laws.)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses and
proceedings for reopening, vacating, or staying as
a judgment of the supreme court of the State of
New York and may be enforced or satisfied in like
manner. (Chptr. 8 Art. 54, Sec. 5402(b), New York
State Consolidated Laws.)
Interest:
Legal
rate: Six per cent (6%) per annum (Chptr. 24-A,
Art. 5, Sec. 5-501, New York State Consolidated
Laws.)
Judgment
Rate: Nine per centum (9%) per annum, except where
otherwise
provided
by statute. (Chptr. 8, Art. 50, Sec. 5004, New
York State Consolidated Laws.)
Exemption:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
Under
Chptr. 8, Art. 52, Sec. 5206 of the New York State
Consolidated Laws, property of one of the
following types, not exceeding ten thousand
dollars in value above liens and encumbrances,
owned and occupied as a principal residence, is
exempt from application to the satisfaction of a
money judgment, unless the judgment was recovered
wholly for the purchase price thereof:
1. a lot of land with a
dwelling thereon,
2.
shares of stock in a cooperative apartment
corporation,
3. units of
a condominium apartment, or
4. a mobile home.
Some of
the personal property exemption which may be
claimed by a debtor may include all stoves kept
for use in the judgment debtor's dwelling house
and necessary fuel therefor for sixty days; one
sewing machine with its appurtenances; the family
bible, family pictures, and school books used by
the judgment debtor or in the family; and other
books, not exceeding fifty dollars in value, kept
and used as part of the family or judgment
debtor's library; a seat or pew occupied by the
judgment debtor or the family in a place of public
worship; domestic animals with the necessary food
for those animals for sixty days, provided that
the total value of such animals and food does not
exceed four hundred fifty dollars; all necessary
food actually provided for the use of the judgment
debtor or his family for sixty days; all wearing
apparel, household furniture, one mechanical, gas
or electric refrigerator, one radio receiver, one
television set, crockery, tableware and cooking
utensils necessary for the judgment debtor and the
family; a wedding ring; a watch not exceeding
thirty-five dollars in value; and necessary
working tools and implements, including those of a
mechanic, farm machinery, team, professional
instruments, furniture and library, not exceeding
six hundred dollars in value, together with the
necessary food for the team for sixty days,
provided, however, that the articles specified in
this paragraph are necessary to the carrying on of
the judgment debtor's profession or calling. In
addition, a judgment debtor may also be entitled
to exemption, to the extent allowed under the
statute, certain portions of income, trust,
security deposits, insurance policy, New York
state college choice tuition savings program trust
funds, award in a matrimonial action, and
retirement plan funds. (Chptr. 8, Art. 52, Sec.
5205, New York Consolidated Laws.)
In
accordance with the provisions of 11 U.S.C. Sec.
522(b), debtors domiciled in the State of New York
are not authorized to exempt from the estate
property that is specified under subsection (d) of
such section. (Chptr. 12, Art. 10-A, Sec. 284, New
York State Consolidated Laws.)
NORTH CAROLINA
Judgments and
Enforcement:
A
judgment rendered by the court of North Carolina
is enforceable for a period of ten (10) years.
(§1-47(a)(1).) Upon the filing of the transcript
of a judgment with the clerk, such judgment
becomes a lien on the real property of the
judgment debtor in the county in which it is
situated for a period of ten (10) years from the
date of the rendition of the judgment. ( §1-234.)
A judgment creditor may seek execution against the
non-exempt property of the judgment debtor,
against his person and for the delivery of the
possession of real or personal property. (§1-303.)
A writ of execution, however, may not be issued
unless the judgment debtor's exemption has been
designated, or the judgment debtor has waived his
exemption as provided in G.S. 1C-1601(c).
(§1-305(b)). The court or judge may order that all
non-exempt property of the judgment debtor be sold
upon execution, however, 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 which is wholly or partly supported by his
labor. (§ 1-362.)
A
judgment by confession may be entered without
action at any time in accordance with the
procedure prescribed under G.C. §1A-1, R.68.1 if
such judgment is for money due or for money that
may become due or for alimony or child support. A
prospective defendant may file with the clerk of
the superior court a statement containing the name
of the prospective plaintiff, his county of
residence, the name of the defendant, his county
of residence, and a concise statement showing why
he is or may become liable to the plaintiff. A
judgment by confession, upon entry, may have the
same effect as other judgments except that no
judgment by confession may be held as res judicata
to any fact in any civil action except in the
action on the judgment confessed.
Foreign Judgment:
The
State of North Carolina generally adopts the
Uniform Enforcement of Foreign Judgments Act. (§
1C-1701, et seq.) Any judgment, decree or order of
a court of the United States or of any other court
is entitled to full faith and credit in the State
of North Carolina. (§ 1C-1702(1).)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor, and stating that the foreign
judgment is final, that it is unsatisfied in whole
or in part, and setting forth the amount remaining
unpaid on the judgment. (§1C-1703(a).) The
judgment creditor is required to serve upon the
judgment debtor a notice of filing of the foreign
judgment and affidavit, attaching copies of these
documents thereto, and file a proof of service of
the notice in accordance with Rule 4(j) of the
Rules of Civil Procedure of North Carolina. The
notice must set forth the name and address of the
judgment creditor, his attorney if any, the
clerk's office in which the foreign judgment is
filed, that the judgment attached to the notice
has been filed in that office, and that the
judgment debtor has 30 days from the date of
receipt of the notice to seek relief from the
enforcement thereof. The notice must also state
that if the judgment is not satisfied within that
30 days period, it will be enforced in the same
manner as a judgment of the State of North
Carolina. (§1C-1704(a) and (b).) A judgment so
filed has the same effect and is subject to the
same defenses as a judgment of the State of North
Carolina and may be enforced or satisfied in like
manner. (§1C-1703(c).)
No
execution may issue upon the foreign judgment nor
may any other proceeding be taken for its
enforcement until the expiration of 30 days from
the date upon which notice of filing is served in
accordance with Section G.S. 1C-1704.
(§1C-1703(b).)
Interest:
Legal
rate: 8% per annum. (§ 24-1.)
Contract
Rate: Parties to a loan, purchase money loan,
advance, commitment for a loan or forbearance
other than a credit card, open-end, or similar
loan may contract in writing for the payment of
interest not in excess of:
a. if
the amount is less than $25,000, the rate
announced and published by the Commissioner of
Banks based on the latest published noncompetitive
rate for U.S. Treasury bills with a six-month
maturity as of the fifteenth day of the month plus
six percent (6%), rounded upward or downward, as
the case may be, to the nearest one-half of one
percent (1/2 of 1%) or sixteen percent (16%),
whichever is greater. (§24-1.1(c).)
b. if
the amount is greater than $25,000, any rate
agreed upon by the parties. (§ 24-1.1.)
Judgment
rate: 8% per annum or the rate specified in the
the contract. (§24-5.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment or execution or forced sale for the
payment of debts. Section 1C-1602 of the North
Carolina General Statutes permits the election of
the exemptions provided under Article X of the
North Carolina Constitution or §1C-1601 of the
North Carolina General Statutes.
Under
the constitutional exemption, a debtor's homestead
and the dwellings and buildings used therewith,
which he uses as a residence, up to a value fixed
by the General Assembly but not less than $1,000
may be exempt from sale under execution or other
final process obtained on any debt, except that no
property may be exempt from sale for taxes, or for
payment of obligations contracted for its
purchase. The debtor may also be entitled to
exemption up to five hundred dollars ($500.00) in
value in his personal property. (Article X of the
N.C. Constitution.)
The
statutory exemptions provided under § 1C-1601 of
the North Carolina General Statutes include the
debtor and his dependent's aggregate interest or
value in real property or personal property used
as a residence, or in a burial plot, not to exceed
$10,000; any property not to exceed $500, one
motor vehicle not to exceed $1,500, household
furnishings, household goods, wearing apparel,
appliances, books, animals, crops, or musical
instruments, that are held primarily for the
personal, family, or household use up to $3,500
for the debtor plus $750, but not to exceed $3,000
in total, for each dependent, any implements,
professional books, or tools of the trade of the
debtor or the trade not to exceed $750, life
insurance proceeds, professionally prescribed
health aids, compensation for personal injury or
for death, but such exemption is not exempt from
claims for funeral, legal, medical, dental,
hospital, and health care charges related to the
accident or injury giving rise to the
compensation, individual retirement accounts
qualified under Section 408(a) of the Internal
Revenue Code, individual retirement annuities
qualified under Section 408(b) of the Internal
Revenue Code, and accounts established as part of
a trust described in Section 408(c) of the
Internal Revenue Code.
In a
bankruptcy proceeding, the exemptions provided in
The Bankruptcy Act, 11 U.S.C. § 522(d), are not
applicable to residents of the State of North
Carolina. (§ 1C-1601(f).)
NORTH DAKOTA
Judgments and Enforcement:
A
judgment rendered by the court of North Dakota is
enforceable for a period of ten (10) years
(28-01-15.), and may be renewed for an extended
period of ten (10) years within 90 days before
expiration of the ten (10) year period.
(28-20-21.) Upon the docketing and filing of the
judgment with the clerk of the court in the county
in which the judgment debtor's real property is
located, it becomes a lien on such real property
except the homestead. (28-20-13.) The lien may
also be extended for ten (10) years upon renewal
of the judgment. (28-20-23.)
Execution of the judgment may
be issued against the property of the judgment
debtor, or another for the delivery of the
possession of real or personal property.
(28-21-03.) All non-exempt goods, chattels,
moneys, and other property, both real and
personal, of the judgment debtor are subject to
execution. (28-21-08.) Earnings of a judgment
debtor may be garnished, however, the maximum part
of the aggregate disposable earnings of an
individual for any workweek which is subject to
garnishment, may not exceed the lesser of 25% of
disposable earnings for that week, or the amount
by which disposable earnings for that week exceed
40 times the federal minimum hourly wage
prescribed by section 6(a)(1) of the Fair Labor
Standards Act of 1938 as amended. (32-09.1-03.)
A
judgment by confession is permissible, without
action, either for money due or to become due, or
to secure any person against contingent liability,
A defendant may file a signed written statement,
under oath, stating the amount for which the
judgment may be entered and authorize the entry
therefor, the concise fact out of which the debt
or liability arose, and show that the sum
confessed therefor is justly due or become due. If
the court found this to be sufficient, it may
order the clerk to enter the judgment. A judgment
by confession may be enforced in the same manner
as other judgment entered by the Court. (Rule
68(c), Rules of Civil Procedure.)
Foreign Judgment:
The
State of North Dakota generally adopts the Uniform
Enforcement of Foreign Judgments Act. (28-20.1, et
seq.) Any judgment, decree or order of a court of
the United States or of any other court is
entitled to full faith and credit in the State of
North Dakota. (28-20.1-01.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The clerk of the court and the
creditor are required to mail a written notice of
the filing of the foreign judgment to the judgment
debtor at the address given. The notice must
include the name and post office address of the
judgment creditor and, if the judgment creditor
has an attorney in this state, the attorney's name
and address. Lack of mailing notice of filing by
the clerk does not affect the enforcement
proceedings if proof of mailing by the judgment
creditor has been filed. No execution may issue
upon the foreign judgment nor may any other
proceeding be taken for its enforcement until the
expiration of 10 days from the date the judgment
is filed. (28-20.1-03.)
Interest:
Legal
rate: 6% per annum. (47-14-05.)
Contract
Rate: Parties may contract for an agreed rate but
such rate may not exceed a rate equal to 5-1/2%
above the current cost of money as reflected by
the average rate of interest payable on United
States treasury bills maturing in six months
immediately before the month in which the
transaction occurs, but not less than 7%.
(47-14-05.)
Judgment
rate: 12% per annum or such rate, not to exceed
the maximum rate allowed under section 47-14-09 of
the North Dakota Century Code, as contained in the
original contract upon which the judgment was
based. (28-20-34.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment or execution or forced sale for the
payment of debts.
Homestead, under the law of
North Dakota, consists of the land, and the
dwelling thereon together with all appurtenances
and improvements, which a judgment debtor uses as
his residence. Any person, married or unmarried,
is entitled to a total homestead exemption up to
$80,000 in value, over and above all liens and
encumbrances or both. (47-18-01.)
Personal
property which maybe exempt from attachment or
mesne process and from levy and sale upon
execution and from any other final process issued
from the court may include family pictures, pew or
other sitting in any house of worship, lot or lots
in any burial ground, family bible and all
schoolbooks used as part of a family library not
exceeding $100 in value, wearing apparel and
clothing, provisions for the debtor and his family
necessary for one year's supply, crops and grain
not to exceed 160 acres of land, insurance
benefits covering any or all of the exempt
property, and house trailer or mobile home
occupied as a residece by the debtor. In addition,
judgment debtor may select from his other personal
property, any goods, chattels, merchandise, money
and other personal property not exceeding in
aggregate value of $5,000 if he is a head of the
household (28-22-02, 28-22-03.), and $2,500 if he
is a single person. (28-22-05.)
A
resident of the State of North Dakota may further
select, in lieu of the homestead exemption, up to
$7,500, a motor vehicle up to $1,500, pensions,
annuity policies or plans and life insurance
policies and other retirement plans qualified
under applicable Internal Revenue Code provisions,
and the right to receive, or property that is
traceable to, recovery from wrongful death not to
exceed $7,500, recovery from personal injury not
to exceed $7,500, social security benefits, and
veteran's disability pension benefits.
(28-22-03.1.)
Other
specific alternative exemptions may include
miscellaneous books and musical instruments not to
exceed $1,500 in value, household and kitchen
furniture not to exceed $1,000 in value, livestock
and farm implements not to exceed $4,500 in value,
and tools and implements of any mechanic and stock
in trade not to exceed $1,000 in value, and
library and instruments of any profession not to
exceed $1,000 in value. (28-22-04.)
OHIO
Judgments and
Enforcement:
A judgment issued by the
Courts in Ohio is enforceable for a period of five
years. It becomes dormant and may not operate as a
lien on the estate of a judgment debtor unless it
is executed within that period, or revived. A
creditor may revive a dormant judgment by filing
an action with
the court
within twenty-one (21) years from the time it
became dormant. Once revived, the judgment may be
enforced in the same manner as other current
judgments.
Ohio
permits the entry of a judgment by confession. A
debtor may appear in a court of competent
jurisdiction and confess judgment. (O.R.C.
2323.12.) An attorney may confess judgment by
producing to the Court a warrant of attorney which
contains specific warnings and notice to the
debtor in the instrument evidencing the
indebtedness. The warnings must appear on the
instrument clearly and
conspicuously and must conform to the requirements
under the Ohio statutes. (O.R.C. 2323.13.)
However, a warrant of attorney to confess judgment
in an instrument arising out of a consumer loan or
consumer transaction is invalid, and the Court
generally does not have jurisdiction to render a
judgment based on such a warrant.
A
judgment creditor generally may execute a judgment
against the real or personal property, or both, of
the judgment debtor. Such property may include
lands and tenements, and goods and chattels which
are not exempt by law. A wage garnishment may also
be permitted, but only upon full compliance with
specific requirements set forth in Chapter 2716 of
the Ohio Revised Code.
The
requirements include service of a prescribed
written demand upon the judgment debtor at least
fifteen days and not more than forty-five days
before the wage garnishment order is sought
(O.R.C. 2716.02), filing of an affidavit with the
Court, service of the wage garnishment order and
notice upon the employer, and service of a notice
and request for hearing upon the judgment debtor.
(O.R.C. 2716, et seq.)
Foreign Judgment:
Judgments issued by Courts in
the United States generally are entitled to full
faith and credit in the State of Ohio. A foreign
judgment may be enforced in the same manner as a
judgment issued by the Courts in Ohio provided
proper procedures are followed. Such procedures
include the filing with the Court of Common Pleas
an authenticated copy of the foreign judgment, an
affidavit setting forth the name and last known
address of the judgment debtor and of the judgment
creditor, and the mailing of a notice of filing of
the foreign judgment to the judgment debtor. The
foreign judgment may be enforced after thirty (30)
days of its filing with the Ohio Court. (O.R.C.
2329.01 et seq.)
Interest:
Legal Rate: The legal
interest rate is ten (10) percent per annum when
no other rate is agreed upon between the parties
to a bill, bond, note, book account, or other
instrument in writing and on judgment, decree, or
order issued by the Ohio Courts . (O.R.C.
1343.03.(A).)
Contract Rate: If the parties
to a contract agreed to a rate different than the
legal rate, the creditor is entitled to the agreed
rate. (O.R.C. 1343.03(A).)
Exemptions:
A
debtor generally may claim exemption of certain
real or personal property from execution of a
judgment against him or in a bankruptcy
proceeding. In a case where the judgment was for
money
owed for health care
services or supplies, the debtor or his family may
claim exemption of one parcel or item of real or
personal property that he or his family uses as a
residence. (O.R.C. 2329.66(A)(1)(a).)
In all other judgments, a
debtor may claim exemption of his interest, up
to
five thousand dollars
($5,000.00) in one parcel or item of real or
personal property that he or his family uses as a
residence, one thousand dollars ($1,000.00) in one
automobile, four hundred dollars ($400.00) in
cash, and certain amounts in other personal or
trade items as provided in O.R.C. 2329.66.
These exemptions may also be
claimed by a debtor in a bankruptcy action. While
some states permit its residents to elect
exemptions provided under federal law, the
Statutes of Ohio specifically do not authorize
such election even though the federal exemptions
may be more beneficial to the debtor. (O.R.C.
2329.662.)
OKLAHOMA
Judgments and Enforcement:
A
judgment issued by the State of Oklahoma becomes
dormant five (5) years after its entry if no
execution is issued and filed with the Court
within that period. (12-735.) It may become a lien
on the real property of a judgment debtor within
the county upon the filing of a Statement of
Judgment made by the judgment creditor or its
attorney substantially in the form prescribed by
the Administrative Director of the Courts. A
judgment lien may affect and attach to all real
property of the judgment debtor including his
homestead except that a homestead is exempt from
forced sale pursuant to Section 1 of Title 31 of
the Oklahoma Statutes. (12-706B.)
A
judgment debtor's land, tenements, goods and
chattels, not exempt by law, are subject to
payment of debt and liable to be taken on
execution and sold. (12-733.) In addition, the
earnings of a judgment debtor may also be subject
to garnishment and a continuing lien in the manner
as provided under Section 1173 of the Civil
Procedure which prescribes a garnishment summons
procedure. The amount of earnings which may be
withheld under this procedure may not exceed 25%
of the judgment debtor's earnings. (12-1173.) In a
consumer credit transaction, the amount of wages
withheld may not exceed the lesser of (a)
twenty-five percent (25%) of his disposable
earnings for that week; or (b) the amount by which
his disposable earnings for that week exceed
thirty times the federal minimum hourly wage
prescribed by Section 6(a) (1) of the Fair Labor
Standards Act of 1938, U.S.C. Title 29, Section
206 [29-206](a)(1), in effect at the time the
earnings are payable. Pre-judgment wage
garnishment, however, is not permitted.
(14A-5-105(2).)
Any
person may confess judgment by personally appeared
in a court of competent jurisdiction, and with the
assent of the creditor. (12-689.) An affidavit of
the defendant must be filed, stating concisely the
facts on which the indebtedness is justly due and
owing by the defendant to the plaintiff. (12-692.)
Upon the filing of such affidavit, the clerk may
enter a judgment by confession. Such judgment may
be enforced in the same manner as other judgments
rendered in actions regularly brought and
prosecuted; and the confession operates as a
release of errors. (12-693.)
Foreign Judgment:
The
State of Oklahoma generally adopts the Uniform
Enforcement of Foreign Judgments Act. (12-719. et
seq.) Any judgment, decree or order of a court of
the United States or of any other court is
entitled to full faith and credit in the State of
Oklahoma (12-720.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. Promptly upon the filing of the
foreign judgment and the affidavit, the clerk of
the court and the creditor are required to mail a
written notice of the filing of the foreign
judgment to the judgment debtor at the address
given. The notice must include the name and post
office address of the judgment creditor and, if
the judgment creditor has an attorney in this
state, the attorney's name and address. Lack of
mailing notice of filing by the clerk does not
affect the enforcement proceedings if proof of
mailing by the judgment creditor has been filed.
(12-722) No execution or other process for
enforcement of a foreign judgment may be issued
until 20 days after the mailing of the notice to
the judgment debtor. (12-722(c).) A judgment so
filed has the same effect and is subject to the
same procedures, defenses, and proceedings for
reopening, vacating, or staying as a judgment of a
court in the State of Oklahoma and may be enforced
or satisfied in like manner. (12-721.)
Interest:
Legal
rate: 6% per annum in the absence of any contract
prescribing interest rate. (15-266.)
Written
Contract rate: Parties may agree to any rate as
may be authorized by law. (15-266.)
Judgment
rate: 10% per annum if no rate is specified. If a
rate of interest is specified in a contract, the
contract rate applies so long as it does not
exceed such rate as permitted by law. (12-727.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment or execution or forced sale for the
payment of debts.
A
debtor's homestead within any city or town, owned
and occupied as a residence only, or used for both
residential and business purposes, may consist of
not exceeding one (1) acre of land, to be selected
by the debtor. To qualify for this exemption, at
least 75% of the total square foot area of the
improvements for which a homestead exemption is
claimed must be used as the debtor's principal
residence. If more than 25% of the total square
foot area of the improvements for which a
homestead exemption is claimed is used for
business purposes, the homestead exemption amount
shall not exceed Five Thousand Dollars
($5,000.00). (31-2C.) The homestead of a debtor
which is not within any city or town, annexed by a
city or town on or after November 1, 1997, owned
and occupied and used for both residential and
commercial agricultural purposes, may consist of
not more than one hundred sixty (160) acres of
land, which may be in one or more parcels, to be
selected by the debtor. (31-2B.)
Personal
property which may be exempt, with or without
value limitation, from attachment or execution, by
the debtor or his dependent, may include all
household and kitchen furniture held primarily for
the personal, family or household use; any lot or
lots in a cemetery held for the purpose of
sepulcher; implements of husbandry necessary to
farm the homestead; tools, apparatus and books
used in any trade or profession; all books,
portraits and pictures that are held primarily for
the personal, family or household use; wearing
apparel not to exceed $4,000 in aggregate value;
professionally prescribed health aids; 5 milk cows
and their calves under 6 months old; 100 chickens;
2 horses and 2 bridles and 2 saddles; one motor
vehicle not to exceed $3,000 in value; one gun; 10
hogs, 20 head of sheep; all provisions and forage
on hand, or growing for home consumption, and for
the use of exempt stock for one (1) year; 75% of
all current wages or earnings for personal or
professional services earned during the last
ninety (90) days, except as provided in Title 12
of the Oklahoma Statutes in garnishment
proceedings for collection of child support; right
to receive alimony, support, separate maintenance
or child support payment to the extent reasonably
necessary for the support of debtor and his
dependent; qualified retirement plans; interest in
a claim for personal bodily injury, and death or
workers' compensation, for a net amount not to
exceed $50,000, but not including any claim for
exemplary or punitive damages. (31-1A)
Under
the Oklahoma Statutes, no natural person residing
in the state may exempt from the property of the
estate in any bankruptcy proceeding the property
specified in subsection (d) of Section 522 of the
Bankruptcy Reform Act of 1978, Public Law 95-598,
11 U.S.C.A. 101 et seq. (31-1B)
OREGON
Judgments and
Enforcement:
A
judgment rendered by the court of the State of
Oregon is enforceable for a period of ten (10)
years. (ORS 12.070.) Such enforcement period may
be extended if action is taken to renew the
judgment prior to the expiration of the ten (10)
years. (ORS 18.360.) From the time of docketing an
original or renewed judgment, the judgment becomes
a lien upon all the non-exempt real property of
the judgment debtor within the county where the
same is docketed, or which the judgment debtor may
afterwards acquire therein. (ORS 18.350.)
Enforcement of a money
judgment may by way of a writ of execution (ORS
23.030) or a writ of garnishment (ORS 29.135).
Execution may be against the property of the
judgment debtor or for the delivery of the
possession of real or personal property. (ORS
23.040.) All non-exempt property, including
franchises, or rights or interest therein, of the
judgment debtor, is subject to execution. (ORS
23.160.) Garnishment of wages is permissible but
the maximum part of the aggregate disposable
earnings of an individual for any workweek that is
subjected to garnishment may not exceed 25% of the
individual's disposable earnings for that week; or
the amount by which the individual's disposable
earnings for that week exceed $170. (ORS 23.185.)
A Judgment may be entered by
confession for money due without the filing of a
legal action. A defendant may file a written
statement, verified by oath, authorizing the entry
of judgment for a specified sum, stating concise
facts out of which the obligation arose and
showing that the sum confessed is justly and
presently due, containing a statement that the
person signing the judgment understands that it
authorizes entry of judgment without further
proceeding which would authorize execution to
enforce payment of the judgment, and executed
after the date or dates when the sums described in
the statement were due. This procedure may not be
used in consumer transactions. If there are joint
debtors, the judgment may be executed only against
those who confessed it. (ORCP 73.)
Foreign Judgment:
The
State of Oregon generally adopts the Uniform
Enforcement of Foreign Judgments Act. (ORS
24.105-24.175.) Any judgment, decree or order of a
court of the United States or of any other court
is entitled to full faith and credit in the State
of Oregon. (ORS 24.105.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor together with a separate
statement containing the information required to
be contained in a judgment under ORCP 70 A (2)(a).
The judgment creditor must mail notice of the
filing of the foreign judgment to the judgment
debtor. The notice shall include the name and post
office address of the judgment creditor and the
judgment creditor's lawyer, if any, in the state
of Oregon. The judgment creditor must file with
the court proof of mailing the notice. No
execution may issue upon the foreign judgment nor
may any other proceeding be taken for its
enforcement until the expiration of 5 days from
the date the judgment is filed. (ORS 24.125.)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses and
proceedings for reopening, vacating or staying as
a judgment of the circuit court in which the
foreign judgment is filed, and may be enforced or
satisfied in like manner. (ORS 24.115(3).)
Interest:
Legal
rate: 9% per annum if the parties have not
otherwise agreed to a rate of interest. (ORS
82.010(1).)
Contract
Rate: Any rate as agreed between the parties
except that for loans of $50,000 or less, the rate
of interest may not exceed the greater of 12%, or
5% in excess of the discount rate on 90 day
commercial paper in effect at the Federal Reserve
Bank in the Federal Reserve district where the
person making the loan is located, on the date the
loan or the initial advance of funds under the
loan is made. (ORS 82-010(3).)
Judgment
rate: 9% per annum or such rate as otherwise
contained in the contract upon which the judgment
is based. . (ORS 82-010(2).)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment or execution or forced sale for the
payment of debts.
A debtor
is entitled to a homestead exemption up to an
amount of $25,000 in value for an individual and a
combined exemption of $33,000 if two or more
members of a household are debtors whose interests
in the homestead are subject to execution. The
homestead must be the actual abode of and occupied
by the owner or the owner's spouse, parent or
child. (ORS 23.240.)
Personal
property which are exempt from attachment or
execution may include books, pictures and musical
instruments to the value of $600; wearing apparel,
jewelry and other personal items to the value of
$1,800; tools, implements, apparatus, team,
harness or library, necessary to enable the
judgment debtor to carry on the trade, occupation
or profession by which the judgment debtor
habitually earns a living, to the value of $3,000;
a vehicle to the value of $1,700; domestic animals
and poultry kept for family use, to the total
value of $1,000 and food sufficient to support
such animals and poultry for 60 days; household
goods, furniture, radios, a television set and
utensils all to the total value of $3,000, if the
judgment debtor holds the property primarily for
the personal, family or household use of the
judgment debtor; provisions actually provided for
family use and necessary for the support of a
householder and family for 60 days and also 60
days' supply of fuel; all professionally
prescribed health aids for the debtor or a
dependent of the debtor; spousal support, child
support, or separate maintenance to the extent
reasonably necessary for the support of the debtor
and any dependent of the debtor; the debtor's
right to receive, or property that is traceable to
an award under any crime victim reparation law, a
payment or payments, not to exceed a total of
$10,000, on account of personal bodily injury of
the debtor or an individual of whom the debtor is
a dependent; and a payment in compensation of loss
of future earnings of the debtor or an individual
of whom the debtor is or was a dependent, to the
extent reasonably necessary for the support of the
debtor and any dependent of the debtor; the
debtor's interest, not to exceed $400 in value, in
any personal property. However, this exemption may
not be used to increase the amount of any other
exemption. (ORS 23.160.)
Other
exemptions may include qualified retirement or
pension plans (ORS 23.170, ORS 23.185), vocational
rehabilitation benefits (ORS 344.580), veteran
benefits (ORS 407.595), welfare benefits (ORS
411.760) and workers' compensation benefits (ORS
656.234).
In a
bankruptcy proceeding, residents of the State of
Oregon are not permitted to claim the federal
exemptions provided in Section 522 (d) of the
Bankruptcy Code of 1978 (11 U.S.C. 522 (d)). (ORS
23.305.)
PENNSYLVANIA
Judgments and Enforcement:
Any
money judgment may be enforced by writ of
execution against the personal property of a
judgment debtor within 20 years after the entry of
the judgment (42 Pa.C.S. § 5529.) and may become a
lien on the real property of a judgment debtor in
any county upon the entry into the record of the
office of the Clerk of the Court of Common Pleas
in the county where the property is situated. (42
Pa.C.S. § 4303.) Such lien is enforceable for a
period of five (5) years and may be revived prior
to its expiration. (42 Pa.C.S. § 5526(1).)
Generally, all non-exempt
tangible or intangible personal property and real
property of a judgment debtor is subject to
xecution. (PRCP Rule 3108.) The wages, salaries
and commissions of a judgment debtor, while in the
hands of the employer, are generally exempt from
any attachment, execution or other process except
for a judgment which relates to a divorce,
support, a residential lease, federal and state
taxes, union dues and health care insurance
premiums as prescribed in 42 Pa.C.S. § 8127.
A
judgment by confession on a note, bond or other
instrument may be entered upon the filing of the
instrument upon which the debt arose, an affidavit
that the judgment is not being entered by
confession against a natural person in connection
with a consumer credit transaction, and a
certificate of residence of the plaintiff and of
the defendant. (PRCP Rule 2951.) A Judgment shall
be entered only in the name of a holder, assignee
or other transferee. (PRCP Rule 2954.) Upon the
filing of the above documents, the prothonotary
must enter the judgment as confessed, and must
give notice to the defendant by ordinary mail at
the address stated in the certificate of residence
filed by the plaintiff together with a copy of all
documents filed with the prothonotary in support
of the confession by judgment. (PRCP Rule 2956,
Rule 236.) A judgment entered by confession may be
enforced in the same manner as any other money
judgment rendered by the courts of the State of
Pennsylvania. (PRCP Rule 2956.1.)
Foreign Judgment:
The
State of Pennsylvania generally adopts the Uniform
Enforcement of Foreign Judgments Act. (42 Pa.C.S.
§ 4306. ) Any judgment, decree or order of a court
of the United States or of any other court is
entitled to full faith and credit in the State of
Pennsylvania. (42 Pa.C.S. § 4306(f).)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor, together with a a statement
that the foreign judgment is valid, enforceable
and unsatisfied. The clerk of the Court and the
judgment creditor are required to mail notice of
the filing of the foreign judgment to the judgment
debtor. The notice shall include the name and post
office address of the judgment creditor and the
judgment creditor's lawyer, if any, in the state
of Pennsylvania. The judgment creditor must file
with the court proof of mailing the notice. Lack
of mailing notice of filing by the clerk does not
affect the enforcement proceedings if proof of
mailing by the judgment creditor has been filed.
(42 Pa.C.S. § 4306(c).)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses and
proceedings for reopening, vacating or staying as
a judgment of the court in which the foreign
judgment is filed, and may be enforced or
satisfied in like manner. (42 Pa.C.S. § 4306(b).)
Interest:
Legal
rate: The legal rate of interest is 6% per annum.
(41 Pa.C.S. § 202.) The maximum lawful rate of
interest for any loan or use of money in an amount
of $50,000 or less in cases where no express
contract is made is 6%. (41 Pa.C.S. § 201.)
Contract
Rate: In any case in which advances of money,
repayable on demand, to an amount not less than
$5,000, are made upon warehouse receipts, bills of
lading, certificates of stock, certificates of
deposit, bills of exchange, bonds, or other
negotiable instruments,
pledged as collateral security for such repayment,
the rate of interest may be such rate as may be
agreed to between the parties in writing. (41
Pa.C.S. § 1.)
Judgment
rate: A judgment for a specific sum of money shall
bear interest at the lawful rate from the date of
the verdict or award, or from the date of the
judgment, if the judgment is not entered upon a
verdict or award. (42 Pa.C.S. §
8101.)
Exemptions:
In
general, a debtor may claim exemption of certain
personal property from attachment or execution or
forced sale for the payment of debts. The
Pennsylvania Consolidated Statutes contains no
provision for homestead exemption.
Pennsylvania does not permit
waiver of the exemptions from attachment or
execution granted by statute by the debtor by
express or implied contract before or after the
commencement of the matter, the entry of judgment
or otherwise. (42 Pa.C.S. § 8122.) A judgment
debtor generally is entitled to exemption from
execution certain general monetary exemptions up
to $300 in bank notes, money, securities, real
property, judgments or other indebtedness due the
judgment debtor. (42 Pa.C.S. § 8123.)
Particular enumerated items
of personal property which may be exempt may
include goods such as wearing apparel, bibles and
school books, sewing machines belonging to
seamstresses or used and owned by private
families, but not including sewing machines kept
for sale or hire, and uniforms and accouterments;
qualified retirement funds and accounts, pension
or annuity, insurance proceeds, social security
benefits, and workers' compensation benefits. (42
Pa.C.S. § 8124.)
Statutes of
Limitations
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date a cause of action accrues or from
the date injury or damages are discovered or
should have been discovered.
RHODE ISLAND
Judgments and Enforcement:
A
judgment rendered by the court of Rhode Island may
be enforced for a period of 20 years. (§ 9-1-17.)
A writ of execution to levy upon a judgment
debtor's property may be issued only after 48
hours have elapsed after the entry of judgment (§
9-25-2 ) and within 6 years from its rendition
originally or from the return day of the last
execution (§ 9-25-3). A money judgment may become
a lien on the real property of a judgment debtor
only through the execution process. The levying
officer's filing of a copy of the execution with
the recorder of deeds, if any, or with the town
clerk or the city clerk of the town or city in
which the real estate is situated, and the entry
of such execution in the books of the recorder
thereof, shall create a lien on the judgment
debtor's real estate. (§ 9-26-14, § 9-26-15.) Such
lien expires 20 years from the date of judgment.
(§ 9-26-33.)
All of
the non-exempt goods, chattels and real estate of
the judgment debtor are subject to execution and
attachment. (§9-25-12.) The salary or wages due or
payable to a judgment debtor in excess of $50 may
also be garnished. However, the entire salary or
wages of any debtor due or payable from any
private or public charitable corporation for the
relief of the poor or in aid of unemployment to
whom the debtor is the object, and the entire
wages or salary due and payable form any employer
where the debtor has been the object of relief
from any state, federal, or municipal corporation
or agency for a period of one year from and after
the time when the debtor ceases to be the object
of such relief, are not subject to garnishment or
attachment. (§ 9-26-4.)
Loan
lenders or brokers are not permitted to take any
confession of judgment from a debtor except for a
power of attorney authorizing enforcement of the
provisions of any chattel mortgage or pledge in
the event of default. (§ 19-14.1-1, § 19-14.2-2.)
A rental purchase agreement may not contain a
provision requiring a confession of judgment. ( §
6-44-4.)
Foreign Judgment:
The
State of Rhode Island generally adopts the Uniform
Enforcement of Foreign Judgments Act. (Title 9,
Chapter 32.) Any judgment, decree or order of a
court of the United States or of any other court
is entitled to full faith and credit in the State
of Rhode Island. (§ 9-32-1.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment, and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. The clerk of the Court and the
judgment creditor are required to mail notice of
the filing of the foreign judgment to the judgment
debtor. The notice shall include the name and post
office address of the judgment creditor and the
judgment creditor's lawyer, if any, in the state
of Rhode Island. The judgment creditor must file
with the court proof of mailing the notice. Lack
of mailing notice of filing by the clerk does not
affect the enforcement proceedings if proof of
mailing by the judgment creditor has been filed.
No execution or other process for enforcement of a
foreign judgment filed may be issued until 20 days
after the date the judgment is filed. (§ 9-32-3.)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses, and
proceedings for reopening, vacating, or staying as
a judgment of the court and may be enforced or
satisfied in like manner to any Rhode Island state
court judgment. (§ 9-32-2.)
Interest:
Legal
rate: The legal rate of interest is 12% per annum.
(§ 6-26-1.)
Contract
Rate: Any rate which may be agreed upon between
the parties but not to exceed the maximum rate of
21% per annum or an alternate rate which is equal
to 9% plus an index which is the domestic Prime
Rate as published in the Money Rates section of
The Wall Street Journal on the last business day
of each month preceding the later of the date of
the debtor's agreement or the date on which the
interest rate is redetermined in accordance with
the terms of the debtor's agreement. (§ 6-26-2.)
Judgment
rate: Every judgment for money is entitled to
interest at the rate of 12% per annum to the time
of its discharge. (§ 9-21-8.)
Exemptions:
In
general, a debtor may claim exemption of certain
personal property from attachment or execution or
forced sale for the payment of debts. The Rhode
Island General Laws contains no provision for
homestead exemption.
Personal
property which may be exempt from attachment on
any warrant of distress or on any other writ,
original, mesne, or judicial may include wearing
apparel of a debtor or of the debtor's family;
working tools of a debtor necessary in the
debtor's usual occupation, not exceeding in value
the sum of $500, and the professional library of
any professional person in actual practice;
household furniture and family stores of a
housekeeper in the whole, including beds and
bedding, not exceeding in value the sum of $1,000;
bibles, school books, and other books in use in
the family, not exceeding in value the sum of
$300; the debtor's interest in one lot or right of
burial, as the case may be, in any cemetery; wages
due or accruing to any sailor; debts secured by
bills of exchange or negotiable promissory notes;
salary and wages of the wife and the minor
children of any debtor; such other property, real,
personal, or mixed, in possession or actions as is
or shall be exempted from attachment and
execution, either permanently or temporarily, by
general or special acts, charters of
incorporation, or by the policy of the law;
certain qualified retirement or annuity accounts;
and the right or interest of a person in an
annuity, pension, profit sharing, or other
retirement plan protected by the Employee
Retirement Income Security Act of 1974, Public Law
93-406, 29 U.S.C. § 1001 et seq. (§ 9-26-4.)
Statutes of Limitation:
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date a cause of action accrues or from
the date injury or damages are discovered or
should have been discovered.
SOUTH CAROLINA
Judgments and Enforcement:
A
judgment entered in the State of South Carolina
may be enforced within a period of ten (10) years.
(15-39-20.) Final judgments and decrees entered in
any court of record in this state may constitute a
lien upon the non-exempt real estate of the
judgment debtor situated in any county in which
the judgment or transcript thereof is entered. The
lien begins to run from the time of entry on the
book of abstracts and indices, and continue for a
period of 10 years from the date of the final
judgment or decree. (15-35-810, 15-35-820.)
A
judgment creditor may seek execution against the
property of the judgment debtor, against his
person and for the delivery of the possession of
real or personal property. (15-39-10.) The court
may order any property of the judgment debtor, not
exempt from execution, to be applied toward the
satisfaction of the judgment, except that the
earnings of the debtor for his personal services
cannot be so applied. (15-39-410.)
A
judgment by confession is permissible under South
Carolina Statutes. (15-35-350.) A defendant may
file with the court a verified statement, under
oath, stating the amount of the judgment
authorized, the amount actually due or become due,
concise facts out of which the obligation or
liability arose, and that the sum confessed is
justly due or to become due. (15-35-350.) Upon
entry of the judgment, it may be executed in the
same manner as any other judgments entered in the
courts of the State of South Carolina.
(15-35-380.)
Foreign Judgment:
The
State of South Carolina generally adopts the
Uniform Enforcement of Foreign Judgments Act.
(15-35-900, et seq.) Any judgment, decree or order
of a court of the United States or of any other
court is entitled to full faith and credit in the
State of South Carolina. (15-35-910(1).)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor, and stating that the foreign
judgment is final, that it is unsatisfied in whole
or in part setting forth the amount remaining
unpaid on the judgment, and whether the judgment
is further contested. (15-35-920.) The judgment
creditor is required to serve upon the judgment
debtor a notice of filing of the foreign judgment
and affidavit, and file a proof of service of the
notice in accordance with the Rules of Civil
Procedure of South Carolina. The notice must set
forth the name and address of the judgment
creditor, his attorney if any, and the clerk's
office in which the foreign judgment is filed, and
that the judgment attached to the notice has been
filed in that office, and that the judgment debtor
has 30 days from the date of receipt of the notice
to seek relief from the enforcement thereof. The
notice must also state that if the judgment is not
satisfied within that 30 days period, it will be
enforced in the same manner as a judgment of the
State of South Carolina. (15-35-930.)
The
foreign judgment may not be indexed or docketed if
a contest is not resolved. No execution may issue
upon the foreign judgment nor may any other
proceeding be taken for its enforcement until the
expiration of 30 days from the date upon which
notice of filing is served in accordance with
Section 15-35-930. (15-35-920.)
Interest:
Legal
rate: 8-3/4% per annum on accounts stated and any
money due. (34-31-20(A).)
Judgment
rate: 14% per annum on all decrees enrolled or
entered. (34-31-20(B).)
The
Consumer Protection Code Revision Act of 1982
requires that all creditors who wish to charge an
Annual Percentage Rate (APR) in excess of 18% must
file a Maximum Rate Schedule (MRS) with the S.C.
Department of Consumer Affairs. A Maximum Rate
Schedule must also be posted in the creditor's
place of business. The filing fee is $20.00. See
Department of Consumer Affairs Department linked
here.
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment or execution or forced sale for the
payment of debts.
The
homestead exemption permitted under the South
Carolina Statutes include the real or personal
property of a debtor, up to an aggregate interest
of $5,000 in value. The property must be used by
the debtor or his dependent as a residence, in a
cooperative that owns property, or in a burial
plot, except that the aggregate value of multiple
homestead exemptions allowable with respect to a
single living unit may not exceed $10,000.
(15-41-30(1).)
Personal
property which may be exempt may include the
debtor's interest in one motor vehicle not to
exceed $1,200 in value; household furnishings,
household goods, wearing apparel, appliances,
books, animals, crops, or musical instruments,
that are held primarily for the personal, family,
or household use, not to exceed $2,500 in
aggregate value; jewelry not to exceed $500 in
aggregate value; cash and other liquid assets to
the extent of a value not exceeding $1,000 except
that this exemption is available only to an
individual who does not claim a homestead
exemption; implements, professional books, or
tools of the trade not to exceed $750 in aggregate
value; any unmatured life insurance contract owned
by the debtor, other than a credit life insurance
contract; professionally prescribed health aids;
social security benefits, unemployment
compensation, public assistance benefit, veteran's
benefit, disability, illness or unemployment
benefit, alimony, support or separate maintenance;
a payment under a qualified stock bonus, pension,
profit sharing, annuity, or similar plan or
contract on account of illness, disability, death,
age, or length of service, property that is
traceable to award under a crime victim's
reparation law, a payment on account of the bodily
injury of the debtor or of the wrongful death or
bodily injury of another individual of whom the
debtor was or is a dependent and a payment under a
life insurance contract that insured the life of
an individual of whom the debtor was a dependent
on the date of that individual's death, to the
extent reasonably necessary for the support of the
debtor and any dependent of the debtor.
(15-41-30(2).)
In a
bankruptcy proceeding, no individual may exempt
property specified in 11 U.S.C. Section 522(d)
except as may be expressly permitted by other
provisions of law of the State of South Carolina.
(15-41-35.)
SOUTH DAKOTA
Judgments and
Enforcement:
A money
judgment generally is enforceable against the
personal property of a judgment debtor for a
period of twenty (20) years. (Section 15-2-6.)
Once a judgment is docketed by the Clerk of the
Court, it becomes a lien against all real property
of the judgment debtor in the county where it is
docketed for a period of ten (10) years. (Section
15-16-7.) If a creditor applies for the renewal of
the judgment within a period of ten years from the
date of its entry, the lien upon the real property
of the judgment debtor, other than a homestead,
may extend for another ten (10) years.
A
creditor is entitled to garnish the personal or
real property of a judgment debtor, except as to
those exempted by statute, either in his
possession or in a third party's possession.
(Section 21-18-1.) A judgment debtor's wages may
also be garnished, however, it may be limited to
only twenty percent (20%) of his disposable
earnings per work week. (Section 21-18-51.)
Foreign Judgments:
Under
the Uniform Enforcement Of Foreign Judgments Act
of the State of South Dakota, a judgment issued by
other states the United States is entitled to full
faith and credit in the same manner as a judgment
rendered by the Court of South Dakota. A creditor
may seek the enforcement of a foreign judgment by
filing an authenticated copy of the foreign state
judgment, an affidavit, and payment of a required
fee. Notice must generally be given either by the
Clerk of the Court or by the judgment creditor to
the judgment debtor prior to the enforcement of
the foreign judgment. (Section 15-16A-1.)
Interest:
Under
South Dakota laws, whenever a loan of money is
made, it is presumed to be made upon interest
unless otherwise specified or stipulated by the
parties (Section 54-3-2.) There is generally no
maximum interest rate or charge or usury rate
restriction on an obligation if the interest rate
is established in writing by the parties. (Section
54-3-1.) When an interest rate is not specified,
the following rates generally applies:
12%
(Category C): Maximum interest rate applicable to
an obligation where no interest rate is specified.
(Section 54-3-4.)
15%
(Category F): Maximum interest rate applicable to
all moneys lent, or due on any settlement of
accounts after they become due unless there is an
express contract in writing fixing a different
rate. (Section 54-3-5.)
10%
(Category B): Interest rate applicable to most
money judgments and statutory liens.
Exemptions:
A debtor
generally may claim exemption of his homestead and
personal property from execution of a judgment
against him or in a bankruptcy proceeding. South
Dakota statutes provide "absolute" exemptions of a
judgment debtor's homestead and certain personal
property to sustain the basic needs and
necessities of the debtor and his family.
(Sections 43-45-2 and 43-45-3.) Other additional
property exemptions may include goods, chattels,
merchandise, money or other personal property not
exceeding in the aggregate four thousand dollars
in value, miscellaneous books and musical
instruments not exceeding two hundred dollars in
value, domestic animals limited in numbers, and
other tools of trades limited in value. To insure
that a debtor enjoys the comforts and necessities
of life during retirement years, the State of
South Dakota also permits exemption of certain
retirement benefits or employee's benefit plans.
(Sections 43-45-15.)
While
the federal Bankruptcy Code also provides certain
exemptions, South Dakota does not permit the
election of federal exemptions. (Section
43-45-13.) This means that a resident of South
Dakota may only claim exemption of those property
and to the extent as permitted under Chapter 43-45
of the South Dakota Codified Laws even if the
exemption provided under the federal Bankruptcy
Code may be more beneficial to the judgment
debtor.
TENNESSEE
Judgments and Enforcement:
A
judgment entered in a court of the State of
Tennessee generally is enforceable for a period of
ten (10) years. (28-3-110.) A judgment for an
amount over $500.00 may become a lien on the real
property of a judgment debtor located at the
county in which a certified copy of the judgment
is registered. (25-5-101.) A judgment of the Court
of General Sessions that is for $500.00 or less
may not become a lien on the judgment's debtor's
real property except when execution is levied.
(16-15-804.)
All
judgments of any judicial tribunal for money are
enforced by execution. (26-1-103.) If a writ of
execution is not issued within a year and a day,
the judgment may become dormant but may be revived
by motion. However, if the judgment has been
dormant for ten years, it may be barred because of
the applicable statutes of limitations. (25-4-101,
28-3-110.) Executions may first be levied upon the
goods and chattels of the judgment debtor, and
then be executed upon the lands and tenements if
no goods and chattels are available. (26-3-101.)
The
wages of a judgment debtor may be garnished to
satisfy a judgment. However, the maximum part of
the aggregate disposable earnings of an individual
for any workweek which is subjected to garnishment
may not exceed twenty-five percent (25%) of his
disposable earnings for that week; or the amount
by which his disposable earnings for that week
exceed thirty (30) times the federal minimum
hourly wage at the time the earnings for any pay
period become due and payable, whichever is less.
(26-2-106(a).) If the judgment debtor has
dependent children under the age of 16 who are
residence of the State of Tennessee, the judgment
debtor may further be allowed the sum of $2.50 per
child as exemption from such garnishment.
(26-2-107(a).)
The
State of Tennessee generally does not permit the
submission of a judgment of confession by a power
of attorney before an action is instituted and
before service of process. (25-2-101.)
Foreign Judgment:
The
State of Tennessee generally adopts the Uniform
Enforcement of Foreign Judgments Act. (26-6-101,
et seq.) Any judgment, decree or order of a court
of the United States or of any other court is
entitled to full faith and credit in the State of
Tennessee. (26-6-103.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. Promptly upon the filing of the
foreign judgment and affidavit, the clerk of the
court shall issue a summons to be delivered for
service to any person authorized to serve process.
This person shall serve the summons and the return
endorsed thereon shall be proof of the time and
manner of service. (26-6-105.) A judgment so filed
has the same effect and is subject to the same
procedures, defenses, and proceedings for
reopening, vacating, or staying as a judgment of a
district court in the State of Tennessee and may
be enforced or satisfied in like manner.
(26-6-104.)
No
execution or other process for enforcement of a
foreign judgment may be issued until 30 days after
the date a summons is served on the judgment
debtor. (26-6-105(c).)
Interest:
Legal
rate: The legal rate of interest in the State of
Tennessee is 10% per annum. (47-14-103(3).)
Written
Contract rate: The maximum interest rate permitted
on written contract is the applicable "formula
rate". (47-14-103(2).) "Formula Rate" is defined
under Section 47-14-102(6) of the Tennessee Code
as "an annual rate of interest four (4) percentage
points above the average prime loan rate (or the
average short-term business loan rate, however
denominated) for the most recent week for which
such an average rate has been published by the
board of governors of the Federal Reserve System,
or twenty-four percent (24%) per annum, whichever
is less.
Judgment
rate: The interest rate on a judgment is 10% per
annum or the rate set forth in the contract agreed
to between the parties so long as it is within the
rate permitted under section 47-14-103(2) of the
Tennessee Code. (47-14-121.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
A
judgment debtor generally is entitled to a
homestead exemption upon real property from
execution, attachment, or sale under legal
proceedings during his life, to the extent of of
$5,000.00 in aggregate value, or $7,500.00 for
joint owners, so long as the real property is
occupied by the judgment debtor or both joint
owners as their residence. If only one joint owner
occupied the premises as his residence, the
homestead exemption may not exceed $5,000.00. Upon
the death of an individual who is head of a
family, any such exemption shall inure to the
benefit of the surviving spouse and their minor
children for as long as the spouse or the minor
children use such property as a principal place of
residence. (26-2-301(a).)
Personal
property which may be exempt from execution,
seizure or attachment may include any items of his
owned and possessed personal property, including
money and funds on deposit with a bank or other
financial institution, up to the aggregate value
of four thousand dollars ($4,000). (26-2-102.) A
judgment debtor is entitled to an absolute
exemption of all necessary and proper wearing
apparel for the actual use of himself and family
and the trunks or receptacles necessary to contain
same, all family portraits and pictures, and the
family Bible and school books. (26-2-103(a).)
Other exemptions to which a judgment debtor may be
entitled may include state pension funds,
retirement funds qualified under §§ 401(a),
403(a), 403(b), and 408 of the federal Internal
Revenue Code of 1986, as amended, (26-2-104),
accident, health, or disability insurance insuring
the assured against loss by reason of accidental
personal injuries, or insuring the assured against
loss by reason of physical disability resulting
from disease (26-2-110), social security benefits,
veteran's benefits, disability, illness, or
unemployment benefit (26-2-111).
For the
purpose of a bankruptcy, the citizens of Tennessee
are not authorized to claim as exempt the property
described in the Bankruptcy Reform Act of 1978, 11
USC 522 (d) pursuant to section 522 (b) (1),
Public Law 95-598 known as the Bankruptcy Reform
Act of 1978, Title 11 USC, section 522 (b) (1).
(26-2-112.)
Statutes of Limitation:
Civil
actions generally can be commenced only within
certain time limitations. The time generally runs
from the date a cause of action accrues or from
the date injury or damages are discovered or
should have been discovered. When there are mutual
accounts between persons who are not merchants,
the time is computed from the true date of the
last item, unless the account is liquidated and a
balance struck. (28-3-112.)
TEXAS
Judgments and Enforcement:
A
judgment entered in a court of the State of Texas
is generally enforceable for a period of ten (10)
years. If a writ of execution is not issued within
10 years after its rendition, the judgment is
dormant and execution may not be issued on the
judgment unless it is revived. (Civ. P. & Rem.
C. 34.001.) A dormant judgment may be revived by
scire facias or by an action of debt brought not
later than the second anniversary of the date that
the judgment becomes dormant. (Civ. P. & Rem.
C. 31.006.)
A
judgment may become a lien on the real property of
a judgment debtor located in the county in which
an abstract of judgment is recorded and indexed.
(Prop. C. 52.001.) A judgment lien continues for
10 years following the date of recording and
indexing the abstract; however, if the judgment
becomes dormant during that period, the lien
ceases to exist. (Prop. C. 52.006.)
A
judgment creditor generally may request the
issuance of a writ of execution thirty (30) days
after the entry of a final judgment. (Texas R.C.P.
Rule 627.) All of the property of a judgment
debtor, not exempt by law, may be subject to levy
and sale to satisfy the judgment. The levying
officer is required to call upon the judgment
debtor first to designate such property as may be
levied upon. If the judgment debtor is absent or
if no property is designated, the levying officer
generally may execute upon any property of the
judgment debtor which is subject to execution.
(Texas R.C.P. Rule 637.) Personal wages of a
judgment debtor generally is not subject to
garnishment; however, any unpaid commissions for
personal services, not to exceed 25 percent of the
aggregate limitations prescribed by Subsection (a)
of Section 42.001 of the Property Code, may be
garnished to satisfy a judgment
Confession of judgment is
permitted in the State of Texas. Under Rule 314 of
the Texas Rule of Civil Procedure, any person
against whom a cause of action exist may, without
process, appear in person or by attorney, and
confess judgment in open Court. The person must
file a petition, under oath, stating the justness
of the debt or cause of action by the person in
whose favor the judgment is confessed. If the
judgment is confessed by an attorney, a power of
attorney must be filed with the court and the
contents thereof must be recited in the judgment.
A judgment by confession generally operates as a
release of all errors in the record thereof, and
may be impeached for fraud or other equitable
cause.
Foreign Judgment:
The
State of Texas generally adopts the Uniform
Enforcement of Foreign Judgments Act. (Civ. P.
& Rem. C. 35.001, et seq.) Any judgment,
decree or order of a court of the United States or
of any other court is entitled to full faith and
credit in the State of Texas (Civ. P. & Rem.
C. 35.001.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. Upon the filing of the foreign
judgment and affidavit, the clerk of the court and
the creditor are required to mail a written notice
of the filing of the foreign judgment to the
judgment debtor at the address given. The notice
must include the name and post office address of
the judgment creditor and, if the judgment
creditor has an attorney in this state, the
attorney's name and address. Lack of mailing
notice of filing by the clerk does not affect the
enforcement proceedings if proof of mailing by the
judgment creditor has been filed. (Civ. P. &
Rem. C. 35.004, 35.005.)
A
judgment so filed has the same effect and is
subject to the same procedures, defenses, and
proceedings for reopening, vacating, or staying as
a judgment of a court in the State of Texas and
may be enforced or satisfied in like manner. (Civ.
P. & Rem. C. 35.003(c).)
Interest:
Legal
rate: 6% per annum on the principal amount
beginning on the 30th day after the date on which
the amount is due. (Art. 5069-1C.002.)
Written
Contract rate: In the absence of other law, the
maximum rate of interest under any contract is 10%
per annum. (Art. 5069-1C.001; Fin. C. 302.001.)
Judgment
rate: If the interest is provided under a contract
which is the subject matter of the legal action,
the judgment interest rate is the rate specified
in the contract or 18% per annum, whichever is
less. (Fin. C. 304.002.) If no interest rate is
specified, the rate is determined by the consumer
credit commissioner based on the auction rate
quoted on a discount basis for 52-week treasury
bills issued by the United States government as
most recently published by the Federal Reserve
Board before the date of the computation, on the
15th day of each month to be applied to the
succeeding calendar month; however, such rate
shall be not less than 10% or more than 20%. (Fin.
C. 304.003.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment.
A
debtor's homestead and one or more lots used for a
place of burial of the dead are exempt from
seizure for the claims of creditors. (Prop. C.
41.001.) If used for the purposes of an urban home
or as a place to exercise a calling or business in
the same urban area, the homestead of a family or
a single, adult person, not otherwise entitled to
a homestead, consists of not more than one acre of
land which may be in one or more lots, together
with any improvements thereon. (Prop. C.
41.002(a).) If used for the purposes of a rural
home, the homestead consists of:
(1) for
a family, not more than 200 acres, which may be in
one or more parcels, with the improvements
thereon; or
(2) for
a single, adult person, not otherwise entitled to
a homestead, not more than 100 acres, which may be
in one or more parcels, with the improvements
thereon. (Prop. C. 41.002(b).)
Personal
property of a debtor which may be exempt from
garnishment, attachment, execution or other
seizure may include property having an aggregate
fair market value of not more than $60,000,
exclusive of liens, security interests, or other
encumbrances if it is provided for a family, or an
aggregate fair market value of not more than
$30,000, exclusive of liens, security interests,
or other encumbrances if it is owned by a single
adult. (Prop. C. 42.001(a).) These property may
include home furnishings, including family
heirlooms; provisions for consumption; farming or
ranching vehicles and implements; tools,
equipment, books, and apparatus, including boats
and motor vehicles used in a trade or profession;
wearing apparel; jewelry not to exceed 25 percent
of the aggregate limitations prescribed by Section
42.001(a); two firearms; athletic and sporting
equipment, including bicycles; a two-wheeled,
three-wheeled, or four-wheeled motor vehicle for
each member of a family or single adult who holds
a driver's license or who does not hold a driver's
license but who relies on another person to
operate the vehicle for the benefit of the
nonlicensed person; certain animals and forage on
hand for their consumption; household pets; and
the present value of any life insurance policy to
the extent that a member of the family of the
insured or a dependent of a single insured adult
claiming the exemption is a beneficiary of the
policy. (Prop. C. 42.002.)
Other
personal property, which may be exempt from
seizure, may include current wages for personal
services, professionally prescribed health aids of
a debtor or a dependent, alimony, support, or
separate maintenance received or to be received by
the debtor or for the support of his dependent,
qualified retirement plan, annuity or account.
(Prop. C. 42.0021.)
UTAH
Judgments and
Enforcement:
A
judgment entered in the court of the State of Utah
generally is enforceable for a period of eight (8)
years. (Utah Code 78-12-22.) A judgment entered in
the District Court becomes a lien upon the real
property of the judgment debtor, not exempt from
execution, owned or acquired during the existence
of the judgment, located in the county in which
the judgment is entered. A small claims judgment,
however, may qualify as a lien upon real property
only if an abstract of judgment is issued by the
District Court and recorded in the same manner as
a District Court judgment. (Utah Code 78-22-1.)
A writ
of execution is available to a judgment creditor
to satisfy a judgment or other order requiring the
delivery of property or the payment of money by a
judgment debtor and may be issued immediately upon
entry of the judgment. (U.R.C.P. 69, 62.) The
wages a judgment debtor may be garnished to
satisfy the judgmebt, but maximum part of the
aggregate disposable earnings of an individual for
any pay period which is subjected to garnishment
to enforce payment of a judgment arising from a
consumer credit agreement may not exceed the
lesser of 25% of his disposable earnings for that
pay period; or the amount by which his disposable
earnings for that pay period exceed 30 hours per
week multiplied by the federal minimum hourly wage
IUtah Code 70C-7-103.)
A debtor
may obtain a judgment by confession without
action, either for money due or to become due or
to secure any person against contingent liability
on behalf of the defendant, or both. (Utah Code
78-22-3.) Such judgment may be entered upon the
filing with the clerk of the court in which a
judgment is to be entered a verified statement by
the judgment debtor concisely stating the claim
and that the sum confessed therefor is justly due
or to become due. (U.R.C.P. 58A.)
Foreign Judgment:
The
State of Utah generally adopts the Uniform
Enforcement of Foreign Judgments Act. (Utah Code
78-22a-1, et seq.) Any judgment, decree or order
of a court of the United States or of any other
court is entitled to full faith and credit in the
State of Utah. (Utah Code 78-22a-2.)
A
judgment creditor seeking to enforce a foreign
judgment may file with the appropriate court, an
authenticated copy of the foreign judgment and an
affidavit showing the name and last known post
office address of the judgment debtor and the
judgment creditor. A judgment so filed has the
same effect and is subject to the same procedures,
defenses, and proceedings for reopening, vacating,
or staying as a judgment of a district court in
the State of Utah and may be enforced or satisfied
in like manner. (Utah Code 78-22a-2(3).)
Upon the
filing of the foreign judgment and affidavit, the
clerk of the court is required to mail a written
notice of the filing of the foreign judgment to
the judgment debtor at the address given. The
notice must include the name and post office
address of the judgment creditor and, if the
judgment creditor has an attorney in this state,
the attorney's name and address. No execution or
other process for enforcement of a foreign
judgment may be issued until 30 days after the
date the judgment is filed. (Utah Code 78-22a-3.)
Interest:
Legal
rate: The legal rate of interest for loan or
forbearance of any money, goods, or chose in
action is 10% per annum. (Utah Code 15-1-1(2).)
Written
Contract rate: The parties to a lawful contract
may agree upon any rate of interest for the loan
or forbearance of any money, goods, or chose in
action that is the subject of their contract.
(Utah Code 15-1-1(1).)
Judgment
rate: The interest rate on a judgment rendered on
a lawful contract is the rate agreed upon by the
parties. On judgments where no interest rate is
specified, the interest rate is the federal
postjudgment interest rate as of January 1 of each
year, plus 2%. "Federal postjudgment interest
rate" means the interest rate established for the
federal court system under 28 U.S.C Sec. 1961, as
amended. (Utah Code 15-1-4.)
Exemptions:
In
general, a debtor may claim exemption of his
homestead and certain personal property from
attachment and execution of a judgment, or in a
bankruptcy proceeding.
Under
the Utah Exemption Act (Utah Code 78-23-1 et
seq.), a person's homestead is exempt from
judicial lien and from levy, execution, or forced
sale except for statutory liens for property taxes
and assessments on the property, security
interests in the property and judicial liens for
debts created for the purchase price of the
property, judicial liens obtained on debts created
by failure to provide support or maintenance for
dependent children, and consensual liens obtained
on debts created by mutual contract. (Utah Code
78-23-3(d).) A homestead may consist of a dwelling
or mobile home and the land surrounding it, not
exceeding one acre, which is being used as his
primiary personal residence. The amount of
homestead exemption an individual may claim can
not exceed $10,000 in value. If the property
claimed as exempt is jointly owned, each joint
owner is entitled to a homestead exemption but the
maximum exemption may not exceed $20,000. (Utah
Code 78-23-3(1).)
Personal
property which may be exempt under the Utah
Exemption Act may include those that are exempt
without value limitation, exempt to the extent
necessary for the support of the debtor, and
exempt as to a limited value.
Property
that are exempt without value limitation may
include a burial plot, health aids reasonably
necessary to enable the individual or a dependent
to work or sustain health, benefits the individual
or his dependent have received or are entitled to
receive because of disability, illness, or
unemployment from any source, benefits paid or
payable for medical, surgical, or hospital care to
the extent they are used by an individual or his
dependent to pay for that care, veterans benefits,
money or property received, and rights to receive
money or property for child support, one clothes
washer and dryer, one refrigerator, one freezer,
one stove, one microwave oven, one sewing machine,
all carpets in use, provisions sufficient for 12
months actually provided for individual or family
use, all wearing apparel , not including jewelry
or furs, and all beds and bedding, works of art
depicting the debtor or the debtor and his
resident family, or produced by the debtor or the
debtor and his resident family, except works of
art held by the debtor as part of a trade or
business, proceeds of insurance, a judgment, or a
settlement, or other rights accruing as a result
of bodily injury of the individual or of the
wrongful death or bodily injury of another
individual of whom the individual was or is a
dependent to the extent that those proceeds are
compensatory, and retirement plans qualified
