Contesting A Garnishment Or Attachment
Learn how to file a Claim of Exemption to protect your money or property that is “exempt” (protected) and can’t be taken to from you to pay a judgment.
At the end of a civil case, the final decision awarding money to the winning party is called the “judgment.”
There are two main ways a “judgment creditor” (the person who won the judgment and is owed money) can legally take property or money from you to pay a judgment: Attachment and Garnishment. To learn more, click to visit Overview of Judgment and Collection and Garnishing Wages or Attaching Bank Accounts.
The judgment creditor cannot take certain property related to basic needs. This property is called “exempt” property. To learn what types of property are exempt under the law, click to visit Property a Judgment Creditor Can and Can’t Take.
If exempt property is taken from you to pay a judgment, you have ten days from the date the notice of the attachment or garnishment is mailed to you (or from the date your wages are garnished) to claim that the property or money is exempt. You do this by filing a Claim of Exemption with the court clerk and mailing a copy to the judgment creditor, the sheriff or constable who served the collection paperwork, and any third party involved (like your employer or bank, for example).
To see a flowchart showing the collection process, click this link:
Flowchart – Overview of Collection of a Civil Judgment
FYI! Legal Aid Center of Southern Nevada publishes a number of handy brochures on collection topics, including Attachment and Garnishment, What It Means to Be Collection Proof, and Debt Collection. For copies, click to visit Brochures.
Q&A – Claims of Exemptions
What types of money and property cannot be taken to collect a judgment?
There are certain types of money and property that a judgment creditor cannot take from you, even if she has a money judgment against you. This property is called “exempt” property. To learn what types of about money and property are exempt under the law, click to visit Property a Judgment Creditor Can and Can’t Take.
FYI! Some judgment debtors are simply “collection proof,” meaning all their income and property is exempt and can’t be taken to pay a judgment. To learn whether you’re collection proof and about the collection process generally, attend the FREE Collection Proof Clinic! To learn more about the clinic, click to visit Free Classes.
If my money or property has been taken to pay a judgment, how do I claim an exemption to get it back?
If you have exempt property that has been garnished or attached, you have to bring this to both the judgment creditor’s and the court’s attention. You do this by filing a Claim of Exemption with the court and mailing it to the judgment creditor, the sheriff or constable who served the collection paperwork, and any third party involved (such as your employer or bank).
A form Claim of Exemption is available for free at the Self-Help Center, or you can download it by clicking one of the formats underneath the form’s title below:
JUSTICE COURT CLAIM OF EXEMPTION FROM EXECUTION
DISTRICT COURT CLAIM OF EXEMPTION FROM EXECUTION
Fill out the Claim of Exemption form completely.
Attach documentation to the Claim of Exemption to support the exemptions you are claiming.
If your case is in the district court or a justice court other than Las Vegas, make four copies of the completed form.
Take the form (and copies) to the court where your case is pending and give them to the court clerk for filing. There is no filing fee.
After your Claim of Exemption is filed, mail a copy to (1) the judgment creditor’s attorney (or the judgment creditor directly if no attorney is involved), (2) the sheriff or constable involved with the execution, and (3) any third party involved (for example, your employer if your wages have been garnished or your bank if your account has been attached).
Keep a copy of the Claim of Exemption for your records.
For more information about how to fill out and file legal documents, click to visit Basics of Court Forms and Filing.
Should I provide documentation to support the exemptions I’m claiming?
Yes. When you file your Claim of Exemption, attach whatever documents you have that prove your money or property is exempt. Depending on what the judgment creditor is trying to take, these documents might include such things as:
- Pay stubs
- Benefit award letters from a government agency
- Annual statements from a pension or retirement fund
- Bank statements or other bank records
- Bills of sale, Kelly Blue Book values, and vehicle registration renewals
- Assessors' statements of property value
TIP! It’s always smart to attached supporting documents to your Claim of Exemption. If you provide these documents up front, it’s less likely the other side will object to your claim. So it saves you time and frustration in the long run.
How long do I have to file my Claim of Exemption?
When the sheriff or constable serves your execution paperwork, he will mail a Notice of Execution to your last known address. You have ten business days after the Notice of Execution is mailed to file with the court to claim any exemptions you believe apply. If the judgment creditor is trying to garnish your wages, you have ten days after your wages are garnished to file your Claim of Exemption.
What happens if I don’t file a Claim of Exemption?
If you do not file a Claim of Exemption and mail it to the sheriff or constable, he will release the money or property he is holding to the judgment creditor within 25 calendar days after the levy.
What happens after I file my Claim of Exemption?
What happens depends on whether the judgment creditor files an objection to your Claim of Exemption. From the date you serve the judgment creditor with your Claim of Exemption, she has eight business days to file an objection with the court if she disagrees with the exemptions you are claiming.
- If the judgment creditor does not file an objection, the sheriff or constable will release the money or property to you within nine business days after your Claim of Exemption is served.
- If the judgment debtor files an objection, the court will set a hearing and decide whether you are entitled to the exemptions you claimed. The hearing date will be no later than seven judicial days after the objection is filed.
Not less than five judicial days before the date set for the hearing, the judgment creditor must serve you notice of the date of the hearing, along with notice to the sheriff or constable involved in the collection and any garnishee (your employer or bank, for example).
TIP! Because the hearing takes place so quickly, don’t depend on the mail to get notice. Check the court’s website periodically to see whether an objection has been filed and a hearing set. Click to visit Look Up My Case.
Why might the judgment creditor object to my Claim of Exemption?
Whether the judgment creditor files an objection usually depends on the particular circumstances of the case and the information she has about you.
Bottom line: The judgment creditor will probably file an objection to your Claim of Exemption if she believes you are not entitled to the exemptions you claimed. It could be that you failed to provide proof of the exemption you are claiming, and the judgment creditor wants to see documentation establishing the exemption. It could be that the judgment creditor has information about your employment, income, assets, and the like, that leads her to believe you are not entitled to the claimed exemptions.
What happens at the hearing on my exemption?
At the hearing, you must provide documents to the judge that prove that your money or property is exempt.
Depending on the exemption at issue, your proof might include, for example, pay stubs, a letter from the government awarding benefits, an annual statement from a pension fund, records from you bank, or any other document that demonstrates that the money in your account or possession is exempt.
Based upon the evidence and information you present, the judge will issue a ruling upholding your exemption, denying your exemption, or something else. Typically, if the judge denies your claimed exemption, she orders any money or property being held by the sheriff or constable to be released to the judgment creditor. If the judge upholds your exemption, she typically orders that the money or property be released to you.
Should I take an order to the hearing for the judge to sign?
Yes. The packet above includes a proposed order the court can use to grant or deny an exemption is available at the Self-Help Center. Bring that to court with you.
After the order is filed, complete a Notice of Entry of Order, which is also in the packet. Attach a copy of the signed and filed order to the Notice of Entry of Order and file the notice with the court clerk. Then mail the notice (and attached order) to the judgment creditor and all other interested parties (the sheriff or constable, your employer or bank, and the like).
Can the judgment creditor still try to collect the judgment if the judge upholds my exemption?
Just because you have a particular type of asset that is protected, that does not necessarily mean all your assets are protected. If the judgment creditor knows of other non-exempt assets you have, she can try to collect them. If you receive other collection paperwork or learn that your assets have been garnished or attached, you must file another Claim of Exemption.
Also, your claim to an exemption does not apply for all time. You might be exempt from execution now, but you might not be in the future. If your financial circumstances change, the judgment creditor can try to execute the judgment again.
A Nevada judgment expires six years from the date it is entered in the case unless it is renewed. If the judgment creditor keeps renewing the judgment, it is theoretically good forever. For more information, click to visit Overview of Civil Judgment and Collection.
If the judge denies my exemption claim, do I have any appeal rights?
Yes. Contact an attorney immediately to obtain assistance. Click to visit Lawyers and Legal Help.
Can exempt property ever be taken from me?
There are certain situations in which otherwise exempt property can be taken to pay a judgment. These situations include:
- When the judgment entered against you is for child support
- Where a bankruptcy court orders that the property be taken
- If the judgment is to satisfy certain tax liens
- Where the judgment was for the purchase, loan, or improvement on that property (for example, the remaining installment payment on a used car that you bought)
What can I do if I have property or wages that are not exempt from execution?
To avoid garnishment or attachment of your non-exempt wages or property, generally your options are to:
- Pay the debt either in full or through a payment plan that is negotiated with the creditor
- Convert non-exempt property to exempt property (filing a homestead exemption on your house, for example)
- Erase the debt through a bankruptcy
For expert assistance deciding the option that is best for you, contact the Financial Guidance Center. This non-profit organization offers counseling, education, debt management (looking at all of your income, expenses and debts) and specialized counseling (student loans, fax repayment, establishing credit, etc.). The agency will also help you understand the pros and cons of bankruptcy.
FYI! Legal Aid Center of Southern Nevada offers a FREE bankruptcy class where you can learn more about bankruptcy and the options available to you. After the class, you can also apply for a FREE lawyer to represent you in your bankruptcy case! For more information, click to visit Free Classes.