What is an Affidavit Claiming Exemption? How to Handle it
Have you been served with papers stating that a debtor is going to either garnish your wages or something else?
Are you now panicking and realize you can file an Affidavit Claiming Exemption, but don’t know where to begin, what this truly is, or how the process works?
You have come to the right place. Today, we are going to answer all your questions and give you a general breakdown of how the process will work.
What Type of Property and/or Money Cannot Be Taken Under a Judgement in Nevada?
As usual, there are a few different types of property that will never be collected from you, if you have this judgment on your record. This property is known as exempt property. Along with the exempt property, here are some other exempt things that will not be taken from you under the Nevada state law:
- 50 times the minimum wage, which is at $362.50 per week or 75 of your earnings. Whichever is greater.
- Unemployment benefits, disability benefits, or illness benefits
- Workers’ Compensation payments
- Public assistance benefits such as Food Stamps, Welfare, TANF, or General Assistance
- Veterans Benefits
- Social Security Disability benefits
- Supplemental Security Income (SSI) and Social Security
- Court order payments (alimony, child support, etc.)
- State and federal retirement monies
- Vocational rehabilitation benefits
- Specific Individual Retirement Accounts
- Life Insurance. Only if your annual premium is below $15,000.
- One vehicle only if the equity is below $15,000
- A homesteaded house
- Vital personal effects, yard equipment, or household goods. Maximum limit of $12,000.
- Necessary tools and materials for your business or trade that supports you and your family. Maximum limit of $10,000.
- Personal injury benefits up to $16,150.
- Wrongful death compensation
- Restitution payments
- Security deposit you put down for your primary home.
- Personal property up to $1,000
- Private Disability Insurance plan proceeds
- Money set aside in a trust fund for burial and funeral services
- Unemployment benefits
- Money paid out by the Public Employees Retirement System
- Vocational Rehabilitation benefits
- Child welfare assistance
Please Note: The above list is not the FULL list of exemptions. This list is of the more common exemptions. If you need a full list of exemptions, you will need to consult with an attorney.
The Process of Filing an Affidavit Claiming Exemption from the Taxpayer POV
Now, that we went over common exemptions and before we get into the frequently asked questions about the process, let’s get into how this process truly works.
Keep in mind, everything here should not be taken as legal advice. If you have any legal questions it is always best to consult with an attorney as they will be able to give you the soundest advice possible.
If you are looking to file either a Third-Party Claim or an Affidavit Claiming Exemption, you will need to do so with the Court of Nevada.
You will find the entire process of how you can claim exempt property in the Notice of Execution that was mailed to you recently. This will be your lifeline during this process. If you are unsure of the instructions or want to get advice on how to proceed, your best option is to consult with an attorney or go to the Nevada Legal Services.
When you finally get the Third-Party Claim or the Affidavit Claiming Exemption filed with the Nevada court, you will need to have it notarized along with the file-stamped copy for their records. You will then need another copy for the attorney of record as well.
How Can a Debtor Claim an Exemption?
Just because your property may be exempt, that does not mean the debtor cannot bring this to the court and creditors attention.
For anyone to claim an exemption on any sort of property, it must be levied upon. The debtor will have 10 days after the Notice of Execution was mailed out to serve the plaintiff and constable with the claim of exemption to the clerk.
The clerk will then provide them with a checklist along with a description of the more commonly claimed exemptions (like we placed above). The clerk will also give you detailed instructions concerning your process of how the property will be released, if there is no objection filed afterward, and the process that the court will use to either deny or approve your exemption. You should know there is no price for filing this form with the Nevada court.
What Happens When the Debtor Files Their Affidavit Claiming Exemption?
The sheriff or constable will be the one who will release the property to the debtor in between the 9 judicial days after the claim of exemption was properly served. However, if the creditor decides to file an objection to the claim or a notice for a hearing was not filed within 8 judicial days after the serving of the claim of exemption.
When Will My Hearing be Scheduled?
If there is an objection to the claim of exemption when the notice for a hearing is filed with the creditor, the creditor will then need to serve a hearing date. The hearing date will be served not be fewer than 5 judicial days.
What Will Happen if a Creditor Wants a Hearing?
If that is the case, you will need to prepare yourself for the hearing. You will need to prove during the hearing that your property is indeed exempt. You will need to bring bills of sale, receipts, assessors’ statements, Kelly Blue Books, monthly bank statements, vehicle registration renewals, and anything else you would think to help prove your side of the story.
During the hearing, if you convince the judge, they will then state that the property or money be released back to you.
If you fail to convince the judge, they will not release the money or property back to you.
What Happens if I didn’t Convince the Judge?
You can appeal the decision. It is best to do this process with an attorney, to ensure you get the best possible outcome.