No Fresh Start

Transcript

1 NO FRESH START HOW STATES LET DEBT COLLECTORS PUSH FAMILIES INTO POVERTY ® NCLC NATIONAL CONSUMER LAW October 2013 CENTER ®

2 © Copyright 2013, National Consumer Law Center, Inc. All rights reserved. ABOUT THE AUTHORS is the deputy director for advocacy at the National Consumer Law Center and Carolyn Carter has specialized in consumer law issues for more than 30 years. From 1974 to 1986 she worked for the Legal Aid Society of Cleveland, first as a staff attorney and later as law reform director. From 1986 to 1999, she was co-director of a legal services program in Pennsylvania. She was the 1992 recipient of NCLC’s Vern Countryman Award. She is admitted to the Pennsylvania bar. From 2005 to 2007 she was a member of the Federal Reserve Board’s Consumer Advisory Council. She is a graduate of Brown University and Yale Law School. Carolyn is co-author of NCLC’s Truth in Consumer Warranty Law and Lending, Unfair and Deceptive Acts and Practices, Collection Actions and is a contributor to a number of other NCLC legal treatises. is deputy director of the National Consumer Law Center, having served as a Robert J. Hobbs staff attorney from 1972 to 1987. He specializes in fair debt collection law. Bob was on the Board of Directors and the Treasurer of the National Association of Consumer Advocates and is a former member of the Federal Reserve Board’s Consumer Advisory Council. He has participated in FTC rulemaking on creditor practices and the antiholder in due course rule. He testified before Congress on fair debt collection and Truth in Lending legislation and worked with Congressional staff on the development of those laws. He coordinates NCLC’s annual Consumer Rights Litigation Conference and the Fair Debt Collection Practices Training Conference. He is author of Fair Debt Collection and editor of Consumer Law Pleadings . NCLC’s ACKNOWLEDGMENTS The views and conclusions presented in this report are those of the authors alone. The authors thank Massachusetts attorney Mary Kingsley for legal research on this report, NCLC Communications Director Jan Kruse for editorial review and communications support, and NCLC Staff Attorney John Rao for substantive review. ABOUT THE NATIONAL CONSUMER LAW CENTER NCLC ® ® ® Since 1969, the nonprofit National Consumer Law Center (NCLC ) has used its expertise in consumer law and energy policy to work for consumer justice and NATIONAL economic security for low-income and other disadvantaged people, including older adults, in the United States. NCLC’s expertise includes policy analysis and advocacy; CONSUMER consumer law and energy publications; litigation; expert witness services, and training and advice for advocates. NCLC works with nonprofit and legal services organizations, LAW private attorneys, policymakers, and federal and state government and courts across CENTER the nation to stop exploitive practices, help financially stressed families build and retain ® wealth, and advance economic fairness. 617-542-8010 WWW.NCLC.ORG   7 WINTHROP SQUARE, BOSTON, MA 02110

3 no fresh start HOW STATES LET DEBT COLLECTORS PUSH FAMILIES INTO POVERTY TABLE OF CONTENTS Executive Summary 3 3 K ey Recommendations for States I ntroduction 7 How Exemption Laws Work 8 9 The Growth of the Debt Buyer Industry How the States Rate 10 M any State Exemption Laws Are Archaic and Outdated 10 11 Methodology 1 2 Protection for Wages: Can a Creditor Reduce a Debtor to Below the Poverty Level? 1 The Family Car: Can A Debtor Continue to Get to Work? 5 1 7 Protecting the Family Home from Creditors 2 0 Stopping Creditors from Threatening Seizure of the Debtor’s Household Goods Protecting a Basic Amount in a Bank Account 2 3 The Importance of Self-executing Protections 23 How the States Rate 25 2 Other Important Exemptions 6 26 Pensions—Protecting Retirees from Destitution 26 Work Tools 2 Recommendations: What States Can Do to Protect Family Finances 7 29 Endnotes 1 No Fresh Start  www.nclc.org ©2013 National Consumer Law Center

4 Appendices S tate Protection of Wages 3 1 Appendix A: rotection of the Family Car P 3 3 Appendix B: Appendix C: P rotection for the Family Home 3 5 7 Appendix D: P rotection of Family Household Goods 3 3 9 Appendix E: P rotection of Family Bank Accounts Maps O verall Ratings: The Strength of State Protection Map 1: –5 4 for Family Finances Map 2: S tate Protection of Wages 1 3 Map 3: P rotection of the Family Car 1 6 Map 4: P rotection for the Family Home 1 9 2 1 Map 5: P rotection of Family Household Goods rotection of Family Bank Accounts P Map 6: 4 2 No Fresh Start  2 www.nclc.org ©2013 National Consumer Law Center

5 EXECUTIVE SUMMARY Every state has a set of exemption laws, intended to prevent creditors from pushing debtors and their families into destitution. Exemption laws preserve basic items of prop- erty from seizure by creditors, so that debtors can to continue to work productively and support themselves and their families. These laws are intended to protect at least subsis- tence wages and essential property from seizure by creditors. States have good reason to be concerned about protecting their residents from over- aggressive collection of judgments for consumer debts. The economic downturn has strained families to the breaking point and the growth of the debt buyer industry makes them increasingly vulnerable to seizure of essential wages and property. This report surveys the exemption laws of the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. Despite the importance of state exemption laws, this report state meets five basic standards: not one finds that Preventing debt collectors from seizing so much of the debtor’s wages that the • debtor is pushed below a living wage; • Allowing the debtor to keep a used car of at least average value; Preserving the family’s home—at least a median-value home; • • Preventing seizure and sale of the debtor’s necessary household goods; and • Preserving at least $1200 in a bank account so that the debtor has minimal funds to pay such essential costs as rent, utilities, and commuting expenses. Best states: Massachusetts, which recently modernized its archaic exemption laws, and Iowa come closest to meeting these five basic standards, each rating a “B+” grade. Solid “B” states include Nevada, New York, North Carolina, Oklahoma, South Carolina, Texas, and Wisconsin. The District of Columbia and New Hampshire each rate “B–” grades. At the opposite end of the scale are several states whose exemption laws Worst states: reflect indifference to struggling debtors. These states allow debt collectors to seize nearly everything a debtor owns, even the minimal items necessary for the debtor to continue working and providing for a family. Alabama, Delaware, Kentucky, and Michi- gan are the worst and rate an “F.” Meanwhile, Arkansas, Georgia, New Jersey, Pennsyl- vania, Utah, and Wyoming are nearly as bad, rating a “D–.” Key Recommendations for States State exemption laws should: • , by protecting a working car, work tools and Preserve the debtor’s ability to work equipment, and money for commuting and other daily work expenses. • Protect the family’s housing, necessary household goods, and means of transportation. 3  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

6 OVERALL RATINGS: THE STRENGTH OF STATE PROTECTIONS FOR FAMILY FINANCES C C C C D C C D B D B D D C C D B D D C B C D C  4 No Fresh Start www.nclc.org ©2013 National Consumer Law Center

7 OVERALL RATINGS: THE STRENGTH OF STATE PROTECTIONS FOR FAMILY FINANCES C C B B B B C F (Rhode Island) C D D C D C (Delaware) F C C (Washington, D.C.) C D F B C B D Strong protections in all five categories A F C (not one state meets this standard) B Fairly strong protections in most categories Protections have many gaps and C weaknesses D Weak protections C F Extremely weak protections (Puerto Rico) D (Virgin Islands) D 5  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

8 • Protect a living wage for working debtors —a wage that can meet basic needs and maintain a safe, decent standard of living within the community. • so that debtors can pay commut- Protect a reasonable amount of money on deposit ing costs and upcoming bills such as rent and utility bills. by restricting creditors’ ability to seize retirement Protect retirees from destitution • . funds Be automatically updated for inflation. • Close loopholes that enable some lenders to evade exemption laws. • For example, states that allow payday lending enable these lenders to evade state laws that pro- tect wages and exempt benefits from creditors. States that allow lenders to take household goods as collateral enable these lenders to avoid state household good exemptions. Be self-enforcing to the extent possible, so that the debtor does not have to file • complicated papers or attend court hearings. Model language for states to achieve these goals is provided in the National Consumer www.nclc.org/mffpa , available at Model Family Financial Protection Act . The Law Center’s model law also includes steps that states can take to reduce the pervasive abuse of the court system by debt buyers. Seizure of debtors’ wages and property would not be such a problem if debt buyers did not churn out such an endless stream of judgments on old, poorly documented debts—many of them not even owed. By updating their exemption laws, states can prevent debt buyers from reducing fami- lies to poverty. These protections also benefit society at large, by keeping workers in the work force, helping families stay together, and reducing the demand on funds for unem- ployment compensation and social services. No Fresh Start  6 www.nclc.org ©2013 National Consumer Law Center

9 INTRODUCTION State exemption laws, which protect income and property from seizure by creditors, are a fundamental safeguard for families. Exemption laws are designed to protect debtors and their families from poverty, and to preserve their ability to be productive members of society and achieve financial rehabilitation. Exemption laws are particularly important because they protect cars, work tools, and other property that debtors need to stay in the workforce. When debtors lose their jobs, the consequences fall not just on the debtors and their families, but also on landlords, local merchants, and How Weak Exemption Laws Endanger Families other creditors that the debtor might have paid. By protecting families from John and Mary Doe (names have been changed to protect impoverishment, exemption laws also their privacy) are an Illinois couple. They bought their modest save costs that taxpayers would other- home in 1972 after John returned from serving during the wise have to bear for services such as Vietnam War. In the 1980s, John suffered serious health emergency shelter and foster care. problems that left him disabled. By budgeting carefully and living frugally, the couple managed to stretch their Social Exemption laws also deter predatory Security benefits to stay current on their mortgage. lending. Creditors are less likely to make unaffordable loans if they know Several years ago, however, a credit card lender took the they will have to rely on the debtor’s Does to court and won a judgment for $1600. It then ability to repay the debt, not on seizure garnished their bank account, cleaning out the money 1 of the debtor’s essential property. for their next month’s $500 mortgage payment. With just Despite the importance of state exemp- $955 a month in income, they had no other resources to tion laws, states vary widely in the make that payment. Their mortgage spiraled into default, income and property they protect from the mortgage lender started foreclosure, and their home seizure by creditors. In the majority of was scheduled for a sheriff’s sale to pay the obligation. states there are enormous gaps in these protections, allowing creditors to push The Does are now in bankruptcy, trying to save their debtors and their families into financial home. Even if they succeed in stopping the foreclosure, hopelessness. The gaps in exemption they will face a higher monthly mortgage payment laws also give debt collectors enormous because of the foreclosure costs and attorney fees leverage. By threatening to take a debt- that were added to their mortgage debt. or’s essential personal property, such as the family car or household goods, a Tragically, their bank account never should have been debt collector may persuade a debtor to garnished, as it consisted entirely of Social Security use the rent money to pay an old credit benefits. The law makes Social Security benefits exempt card bill that ought to be a much lower from garnishment, but at the time neither Illinois law priority. nor any federal regulations required their bank to check whether the funds on deposit were exempt before Exemption laws are primarily an area turning them over to the credit card lender. of state authority. Federal law requires states to protect at least a certain 7  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

10 amount of a debtor’s weekly wages from creditors: 75% of wages or 30 times the mini- mum wage. In addition, federal bankruptcy law provides its own set of exemptions for debtors who file bankruptcy. However, states are allowed to opt out and replace the federal exemptions with their own, and many have done so. Only a small percentage of consumers in financial distress file for bankruptcy. Most distressed consumers depend 2 so this report focuses on the laws that apply to on state exemptions for their protection, debtors who do not file bankruptcy. This report surveys the exemption laws of the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. It points out exemption laws in particular jurisdictions that cry out for improvement. The National Consumer Law Center’s (NCLC) Model Family 3 issued in an updated version along with this report, provides Financial Protection Act, suggested language for states to improve their exemption laws. How Exemption Laws Work Exemption laws come into play when a creditor goes to court and wins a judgment against a debtor. A judgment is a decision from the court that the debtor owes a specific sum of money. The creditor can then take steps to seize the debtor’s wages or property to pay the debt. Typically, the credi- tor asks the court or an official, such as a sheriff, to seize property, order the debtor’s employer to withhold a portion Glossary of the debtor’s wages, or order a bank As used in this report, these terms have the following meanings: to pay the debtor’s funds to the creditor. The creditor can also place a “judgment A law that protects a debtor’s property Exemption law: lien” on the debtor’s real estate and then from seizure to pay a debt owed to a judgment creditor. foreclose on that lien, forcing sale of the An order requiring a party who is holding an Garnishment: home. asset belonging to a debtor to turn the asset over to a judg- The state’s exemption laws specify ment creditor. A wage garnishment orders the debtor’s employer how much of the debtor’s wages and to pay a portion of the debtor’s wages to a judgment creditor. property the creditor can seize and how orders a bank to turn the money A bank account garnishment much it cannot seize. In a few states, in the debtor’s bank account over to a judgment creditor. these exemptions, or some of them, Judgment or money judgment: A decision from a court are self-executing: the debtor does not in a civil case that a debtor owes a specific sum of money have to act affirmatively to protect the judgment to a creditor. The debtor is then termed a property that is exempt. However, in . judgment creditor , and the creditor is a debtor many states, the exemptions are not self-executing. The property will not be protected unless the debtor takes vari- ous procedural steps—typically, filing papers in court or attending hearings—to claim the exemptions. These steps are often daunting for debtors, who are typically left to navigate the judicial system on their own without attorneys. 8 No Fresh Start  www.nclc.org ©2013 National Consumer Law Center

11 The Growth of the Debt Buyer Industry The problem of protecting debtors’ essential property from creditors has been exacer- bated in recent years by the growth of the debt buyer industry and its abuses in obtain- ing judgments against consumers. These debt buyers purchase the right to sue on claims, such as old credit card debts, medical bills, and money left owing after a car is 4 However, there are serious concerns about the legitimacy of the repossessed and sold. judgments debt buyers obtain when they sue. One problem is “sewer service”—deep-sixing the papers informing a defendant of a col- lection lawsuit instead of giving them to the defendant. The result is that the defendant has no opportunity to object to the cred- itor’s claim. Sewer service was such a scandal in New York that the attorney general prosecuted a group of process Guilty Until Proven Innocent servers that made a practice of falsely certifying that they gave the papers to Ms. G., 59, lives in Brooklyn, New York and works for the debtor and sued the debt collectors the public school system. Ms. G. believes she is a victim 5 that employed them. of identity theft because years ago she was robbed at gunpoint and her wallet was stolen. In March 2011, she Robo-signed affidavits are another discovered that a debt collection law firm had entered pervasive problem. A New York study a default judgment against her in a lawsuit in 2005, for showed that in 90% of cases examined, a debt that she had never heard of with AT&T that had debt buyers submitted robo-signed purportedly been purchased by a debt buyer. Ms. G. had affidavits—affidavits signed by an never had an AT&T account and had never heard of the employee of the debt buyer, falsely debt buyer that sued her. She had never been served attesting to information that the with a summons and she learned about the lawsuit only employee did not and could not after her paycheck was garnished for the judgment, six know—to the court to establish the years after the lawsuit had been filed. The garnishment 6 Indeed, most debt buyers operate debt. caused her significant financial hardship. Only after without obtaining the key records of the going to court with the assistance of a legal services original creditor, but expect to obtain program was Ms. G. able to get back the money that 7 judgments without them. had been taken from her paycheck. Most fundamentally, the sloppy manner in which these debts are bought and sold without documentation means that many are simply not owed. Some are the result of identity theft, some are so old that the creditor is barred from bringing suit, some are the result of fraud by the original seller, 8 and some have already been paid or discharged in bankruptcy. 9  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

12 How the States Rate To achieve the purposes of state exemption laws of preserving the ability of debtors to continue working and being productive members of society and protecting them and their families from destitution, a state exemption law should: Prevent debt collectors from seizing so much of the debtor’s wages that the debtor is • pushed below a living wage—a wage that can meet basic needs and maintain a safe, decent standard of living within the community; Allow the debtor to keep a used car of at least average value; • • Preserve the family’s home—at least a median-value home; • Prevent seizure and sale of the debtor’s necessary household goods; and Preserve at least $1200 in a bank account so that the debtor’s funds to pay such • essential costs as upcoming rent, utilities, and commuting expenses are not cleaned out. Not one state meets all five of these criteria. Massachusetts, which recently modernized its archaic exemption laws, and Iowa come Not one state exemption - closest, and rate a high “B” grade. Nevada, New York, North Caro law meets all five of the lina, Oklahoma, South Carolina, Texas, and Wisconsin rate solid “B” grades, and the District of Columbia and New Hampshire rate low criteria that would keep “B” grades. Texas would rate an “A” grade except for its failure to a debtor’s family from provide any protection for the debtor’s bank account. In the early destitution and allow days of statehood, Texas was a leader in protecting debtors from 9 the debtor to continue and this history continues in its strong protection of oppression, debtors’ homes and wages from seizure by creditors. working as a productive At the opposite end of the scale are several states whose exemption member of society. laws reflect indifference to struggling debtors. These states allow debt collectors to seize nearly everything a debtor owns, even the minimal items necessary for the debtor to continue working and providing for a family. Alabama, Delaware, Kentucky, and Michigan are the worst and rate an “F.” Arkansas, Georgia, New Jersey, Pennsylvania, Utah, and Wyoming are nearly as bad, rating a low “D.” Many State Exemption Laws Are Archaic and Outdated In some states, the inadequacy of the state exemption laws simply reflects a failure to update them. Since state exemption laws are so important in protecting debtors from poverty, one would expect that states would key exemption laws to inflation or update them frequently. Some states do, but in a number of states, exemption laws reflect the horse-and-buggy era. For example, Pennsylvania protects clothing, Bibles, school books, sewing machines that are not held for resale, military uniforms and accoutrements, and a whopping $300 of other property. There is no protection for household goods beyond $300. Creditors can clean out a debtor’s home, taking virtually everything. Nor is there any protection No Fresh Start  10 www.nclc.org ©2013 National Consumer Law Center

13 for the debtor’s home, car, or work tools. This indifference to debtors and their fami- lies is balanced out to some extent by Pennsylvania’s refusal to allow creditors to seize any portion of a debtor’s wages, but even that protection has been watered down by exceptions in recent years. A simple, yet fair and New Jersey provides a total of only $2000 in exemptions for the debt- or’s home, household goods, car, work tools, and all other personal effective approach property. Delaware protects a sewing machine owned and used by a would be for states seamstress, but only $50 to $75 of tools of the debtor’s trade and $500 to build automatic in other property unless the debtor files bankruptcy. Vermont pro- inflation adjustments tects one cow, two goats, and three swarms of bees, but only a vehicle worth $2500. into exemption laws. Because of inflation and changes in society, exemption laws can become irrelevant simply due to the passage of time. States can reduce the erosion of these critical protections by building in automatic inflation adjust- ments. Alaska is an example: the dollar amounts in its exemption law are adjusted by statute every second year to reflect changes in the Consumer Price Index. Laws in California, Indiana, Minnesota, Ohio, and South Carolina also provide for automatic inflation adjustments. New York adjusts a few of its dollar amounts automatically for inflation. It is surprising that more states have not adopted this simple, yet fair and effec- tive approach. Methodology The specific criteria for our ratings of the states are set forth in the sections discuss- ing each category: wages, the family car, a median-priced home, necessary household goods, and a basic amount in a bank account. Each section includes a state-by-state map with state details in the appendices. Some states allow married debtors to “stack” their exemptions. For example, if a state allowed a $2000 exemption for a car, each spouse might be able to exempt that amount and save a car worth $4000. The figures in this report are based on the individual exemp- tion amounts unless otherwise stated. Some states provide higher exemption amounts for debtors who are elderly or disabled. In this report we have not used these higher amounts but have used the exemption amounts available to debtors who do not show special circumstances. When states pro- vide a higher exemption amount for a person who is the head of a family, however, we have used that amount in our ratings. When there are ambiguities in state exemption laws, we have interpreted them in favor of a broader rather than a narrower exemption. This approach is in line with the general principle that state exemption laws are to be interpreted liberally in favor of the debtor. But it also means that, even in states that we rate highly, the exemption law may need improvements to make it clear that the broader reading is correct. 11  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

14 PROTECTION FOR WAGES: CAN A CREDITOR REDUCE A DEBTOR TO BELOW THE POVERTY LEVEL? Protection of wages is one of the most important roles of exemption laws. When credi- tors garnish a debtor’s wages, the employer is required to take the money from the debt- or’s paycheck and send it to the creditor. The debtor never sees that money and cannot use it to pay higher-priority obligations such as rent, food, and child care. Instead, the money goes to pay old credit card debts, written-off Federal law protects just medical bills, or the amount still owed after a car was repossessed $217.50 a week of a and sold. wage earner’s paycheck 10 In Wage garnishment can doom a family’s efforts to stay afloat. from garnishment, most states, an employer is even permitted to fire a worker whose 11 wages are garnished for more than one debt. placing a single person below the federal Since 1970, federal law has protected 75% of a wage earner’s pay- check or 30 times the federal minimum wage, whichever is greater. poverty level. For a This means that wage garnishment will not reduce a debtor’s pay- family of four, $217.50 check below $217.50 (thirty times the current minimum wage of per week is less than $7.25 an hour). But a weekly paycheck of $217.50 places even a single 12 individual who has no dependents below the federal poverty level. half of the federal less than half of the federal For a family of four, $217.50 per week is poverty guideline. 13 poverty guideline ($452.88). Federal law gives states the option of protecting a larger portion of 14 Yet only 12 jurisdictions protect even a poverty- a debtor’s paycheck if they choose. level wage for a family of four, and 21 jurisdictions do not go beyond the federal mini- mum at all. Four states ban wage garnishment entirely for typical consumer debts: • North Carolina (if supporting a family) • Pennsylvania South Carolina • • Texas A number of other states protect more of a worker’s wages than the minimum required by federal law. In five of these jurisdictions, Iowa, Missouri, New Jersey, New York and the Virgin Islands, the protections are strong enough so that, depending on the exact calculations, a debtor will often be able to retain at least a poverty-level wage. More - over, these states limit wage garnishment to no more than 10% of the debtor’s paycheck. Therefore, a debtor who is already earning more than a poverty-level wage will not face as severe a reduction as the 25% allowed by federal law, and is more likely to retain a living wage. 12 No Fresh Start  www.nclc.org ©2013 National Consumer Law Center

15 STATE PROTECTION OF WAGES D D F D D D F D F C B D D F D F F RI A B D B D F F D D F DE F F D D D.C. D D B F F A D F F D A F F F F F A C C D V.I. P. R . B F No Fresh Start 13  www.nclc.org ©2013 National Consumer Law Center

16 Three other states—Alaska, Florida, and Wisconsin—protect enough of a worker’s wages so that wage garnishment will not push a wage earner’s paycheck below the federal poverty level of $452.88 per week for a family of four. While the federal poverty level is a very low benchmark, and should not be the goal for states, these states at least keep families from falling that low. Twenty other states protect more of a worker’s wages than the minimum required by federal law. These states are shown in the map on page 13. Some of these states exceed the federal minimum by protecting 40 or 50 times the minimum wage, rather than just 30 times the minimum wage. Others do so by using a higher state minimum wage in the 15 by protecting a higher percentage than the federal minimum (75%), or by calculation, adding a small additional protected amount for each of the debtor’s dependents. These additional protections are welcome news for struggling debtors. However, these states protect a living wage, or even ensure that garnishment will not push a debtor’s do not wages below the poverty level for a family of four. Finally, 21 jurisdictions protect no more of a worker’s wages than the federal minimum: $217.50 a week, less than half the poverty level for a family of four: Alabama Kansas Ohio 16 Arizona Kentucky Oklahoma Oregon Arkansas Louisiana Puerto Rico District of Columbia Maryland Rhode Island Georgia Michigan Utah Idaho Mississippi Wyoming Indiana Montana protects 80 times the federal or state mini- Model Family Financial Protection Law NCLC’s mum wage. If the debtor nets more than that amount but no more than $1200 a week (the approximate equivalent of $70,000 a year in gross wages), 10% of the excess amount can be garnished, leaving the debtor 90%. If the debtor earns more than that, 15% can be garnished, leaving the debtor 85%. The model law thus allows creditors to make use of wage garnishment, but it protects a debtor from a disastrous reduction in the income necessary to meet daily expenses. The model law would also guarantee that garnishment would never push a debtor’s weekly paycheck below $580 (eighty times the federal mini- mum wage of $7.25 an hour)—hardly a lavish income but at least above the poverty level. 17 Such a For retirees, some states protect the full amount of certain retirement benefits. policy makes sense, since retirement benefits must last the rest of a retiree’s life. But pro- tecting the employment earnings of workers before they retire is equally important. If wage garnishment pushes workers below a living wage, they will not be able to save for retirement so the protection for retirement benefits will not help them. States should also be alert to ways in which creditors evade protections for debtors’ wages. For example, payday lenders have the borrower write a post-dated check, No Fresh Start  14 www.nclc.org ©2013 National Consumer Law Center

17 payable on the borrower’s next payday, for the amount due on the loan. This is a back- door method of seizing the borrower’s wages, without a court order and without regard to state and federal limits on wage garnishment. THE FAMILY CAR: CAN A DEBTOR CONTINUE TO GET TO WORK? For many workers, a car is essential to employment. Many wage earners have to work substantial distances from their homes or on evenings and weekends when public trans- portation shuts down. Even those whose jobs are near public transportation may be unable to work unless they have a car to take children to and from daycare. Loss of a car can place a family on a downward trajectory that leads to job loss and a cas- cade of unpaid utility bills, unpaid rent, and deferred medical care. The effect of allow- ing creditors to seize the family car has wide ramifications, hurting not just the debtor and the debtor’s family but also the debtor’s landlord, the local utility provider, and other creditors that the debtor would like to pay. 18 The average The average wholesale price for a used car as of May 2013 was $8,946. 19 Even assum- price for the lowest-priced category of cars, compact cars, was $7,097. ing that a state uses the wholesale price rather than the higher retail price to determine whether a car is protected from seizure by creditors, only nine jurisdictions—Idaho, Iowa, Kansas, Louisiana, Massachusetts, Nevada, Oklahoma, Puerto Rico, and Rhode Island—protect even an average used compact car (one worth $7,000 or more) from seizure. (Several states—Arizona, Colorado, Minnesota, New York, and North Dakota— protect a car worth more than $7000, but only if the debtor is elderly or disabled, or if the car is specially adapted for use by a disabled person.) Some states do not specifically protect a car worth $7000, but give the debtor a “wild card” exemption that the debtor can apply to a car, household goods, or certain other types of property. This approach can enable a debtor to preserve an average used com- pact car, as long as the wild card amount is high enough so that the debtor does not have to choose between preserving the car or preserving the refrigerator and beds. For example, if a state allows a debtor to apply a $9,000 wild card exemption to a car and household goods, the debtor could preserve a $7,000 car and $2,000 in household goods. As shown in more detail in Appendix B, the District of Columbia, Indiana, Mississippi, New Hampshire, New Mexico, North Carolina, North Dakota, South Carolina, Ten- nessee, Texas, Vermont, and Wisconsin all have wild card exemptions that, either by themselves or combined with other exemptions, total at least $9000. Debtors in these states may be able to preserve at least the most basic household goods and a very low- value used car. Arizona, Colorado, Maine, Virginia, West Virginia and Wyoming allow a debtor to keep a car worth between $5000 and $6999. Maryland and Washington also fall in this category: although they provide exemptions of less than $5000 for a car, they also provide a wild card exemption that might enable a family to keep a low-value used 15  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

18 PROTECTION OF THE FAMILY CAR C C D B D B D B A B D A D F D A C RI F A D F A D C D F B DE D B C D D.C. C C D A D B B A C B B F D F B A B D D D V.I. P. R . F A  No Fresh Start 16 www.nclc.org ©2013 National Consumer Law Center

19 car. Alaska, California, Connecticut, Florida, Georgia, Hawaii, Illinois Kentucky, Min- nesota, Missouri, Montana, Nebraska, New York, Ohio, Oregon, South Dakota, and Utah provide only enough of an exemption to enable a debtor to keep, at most, a very low- value used car, one worth between $1500 and $4999. Georgia and South Dakota give the debtor a $5000 or $6000 exemption but it must cover household goods as well. A few states provide so little protection for a debtor’s car that it will almost never be possible for a debtor to protect a working car from seizure. Alabama, Arkansas, Dela- ware, Michigan, New Jersey, Pennsylvania, and the Virgin Islands all either provide less than $1500 protection for a car, or provide a very minimal wild card exemption that cannot protect both a working car and minimal household goods. Delaware protects a car worth up to $15,000, but only if the debtor files bankruptcy. NCLC’s Model Family Financial Protection Act protects a car worth up to $15,000, and up to $25,000 if the car is specially adapted because of a disability of the debtor or a dependent. It also provides a wild card of $10,000 that the debtor can use, if necessary, to exempt the remaining value of a car (or a low-value second car so that a second family member has transportation for work, school, or child care). By allowing a debtor to retain a moderately-priced car, NCLC’s Model Law enables debtors to remain produc- tive members of society and support their families. PROTECTING THE FAMILY HOME FROM CREDITORS Protection of the family home from creditors is one of the fundamental purposes of exemption laws. Loss of a home means loss of support networks. It can also mean loss of a job if the family cannot find replacement housing within commuting distance. For a farm family, loss of the home means loss of their source of support. Loss of the family home is particularly hard on children, as it often means that they must change schools and leave friends and relatives behind. Some states protect the debtor’s home regardless of its value, usually with a limit on acreage, such as a half-acre in an urban area or 160 acres in a rural area. This approach most clearly recognizes the importance of the home. However, this approach has engen- dered controversy because of occasional attempts by wealthy individuals to shield all their assets from creditors by moving to one of these states and investing all their assets in an exempt home. While these cases are exceedingly rare, they may have made states reluctant to adopt uncapped homestead exemptions, and the Model Family Financial Protection Act provides a homestead exemption tied to the median home price in the area. Eight jurisdictions protect the family home regardless of value: Arkansas (head of household only), District of Columbia (head of household only), Florida, Iowa, Kansas, Oklahoma, South Dakota, and Texas. All of these jurisdictions, except the District of Columbia, place limits on the number of acres that the exempt homestead can include. 17  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

20 Five other states—Massachusetts, Minnesota, Montana, Nevada, and Rhode Island— have a dollar cap on the amount of the homestead exemption, but the cap is high enough 20 ) is exempt. so that a median-priced home ($211,312 as of 2012 Seven states—Arizona, Idaho, New Hampshire, North Dakota, Ohio, Vermont, and Washington—have homestead exemptions that are sufficient to protect about half the current median value of a home. Since the median value of homes is not uniform nation- wide, these laws may be sufficient to protect a modest home in some states. They may also protect a home that is still encumbered with a substantial mortgage Some of the remaining states provide lower homestead exemptions, but at least protect about one-quarter of the median price of a home. The states falling into this category are Alaska, California, Colorado, Connecticut, Maine, Mississippi, Nebraska, New Mexico, New York, South Carolina, and Wisconsin. All of these states protect a home between $50,001 and $99,999 in value. Fourteen jurisdictions, listed in the map on page 19, provide even lower homestead exemptions—as little as $5,001 to $50,000. These exemption amounts are so small that they are likely to save only a heavily mortgaged home. Eight states—Alabama, Delaware, Kentucky, Michigan, New Jersey, Pennsylvania, Vir- ginia, and West Virginia—provide little or no protection for the family home. Pennsyl- vania, for example, provides a wild card exemption of just $300. The debtor can apply this exemption to a car, household goods, a home, or other property. Delaware is simi- lar: it allows the head of a household to apply a $500 wild card exemption to the family home. Only if the debtor files bankruptcy is a realistic homestead exemption ($125,000) available. New Jersey provides no exemption at all that can be applied to a home. Ala- bama, Kentucky, Virginia, and West Virginia provide $5,000 homestead exemptions, and Michigan’s is just $3,500. Whether a home is exempt typically depends on whether the debtor’s equity in it is less than the exemption amount. As a result, a home with a large mortgage debt may be exempt even if the home’s market value would exceed the exemption amount. The reason is that, if the creditor forced the sale of a mortgaged home, the proceeds would go first to pay off the mortgage debt and only the amount left after that would go toward the creditor’s debt. As a result, elders who have lived in a home a long time and have paid down their mortgages are particularly likely to face loss of their homes in states that have low homestead exemptions. Some states allow a married couple to “stack” the exemptions summarized in this sec- tion. For example, Alabama allows each of two spouses to claim the state’s $5000 home- stead exemption. In addition, some states—even some states that provide little or no other protection for the home—recognize a doctrine called “tenancy by the entireties” under which a home owned by a married couple cannot be subjected to a forced sale by a creditor unless both spouses owe the debt. This legal doctrine protects some homes, but it has limited application since often both spouses owe the debt. In addition, it pro- vides no protection at all to widows, widowers, and divorced parents—who may be most in need of protection. No Fresh Start  18 www.nclc.org ©2013 National Consumer Law Center

21 PROTECTION OF THE FAMILY HOME (See Appendix C on page 35 for specifics on each jurisdiction's rating.) B C A B A B D B B C C A A F C A D RI F A C F A B D D F D DE D A F C D.C. F C D A F D D A B C C A D F C D A A C D V.I. P. R . D D 19  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

22 Exempting the family home does not leave the creditor empty-handed. Typically, homestead exemption laws are structured so that a judgment creditor can place a lien on the family home, but they forbid foreclosure on that lien. The creditor is paid when the homeowner(s) die. If the family sells the home, the creditor can take any proceeds that exceed the exempt amount. The creditor can even take the exempt amount if the debtor(s) do not use it to buy a new home. STOPPING CREDITORS FROM THREATENING SEIZURE OF THE DEBTOR’S HOUSEHOLD GOODS Household goods usually have little resale value. Seizing them and selling them does little to pay off a debt. The costs of seizure and sale can even exceed the proceeds of the sale. Yet, while the debtor’s household goods are of little use to the creditor, they are of enormous value to the debtor. Without beds, tables, chairs, a stove, a refrigerator, and other furniture and appliances, debtors cannot maintain a household for themselves and their dependents. The mere threat to take a debtor’s household goods, even when the creditor rarely or never follows through, places tremendous pressure on families. The threat can induce debtors to pay old written-off credit card and other low-priority debts rather than high- priority obligations, such as rent and utility bills The strongest approach is to protect all of a debtor’s necessary household goods and appliances. Six states—California, Connecticut, Hawaii, Kansas, Louisiana, and Okla- homa—follow this approach. In addition, Maine achieves a similar result by protecting all household goods and appliances as long as the value of any individual item does not exceed $200. Maine also provides a wild card exemption that ranges, depending on the circumstances, from $400 to $6000 that can be used to protect more expensive items such as appliances. Although New York does not protect all household goods, it protects all household furniture plus a list of other items, including a stove and refrigerator, so mar- ginally qualifies in this category. A second approach that some states take is to allow the debtor to exempt household goods up to a dollar amount. Some states provide an exemption just for household goods, capping the aggregate dollar amount of household goods exempted and some- times also placing a cap on the value of any individual item. In other states, the debtor must use a single exemption, with its dollar cap, for household goods, the family car, and work tools. As long as the dollar amount is high enough, the debtor can protect the items necessary to keep a family intact. (Some of these states also provide a separate exemption for certain specified household items, such as beds). Of the jurisdictions that follow this approach, ten—the District of Columbia, Massachu- setts, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Texas, Washington, and Wisconsin—allow a debtor to keep at least $10,000 of household goods (or provide a combined exemption sufficient to protect $10,000 of household goods plus a $7000 car). No Fresh Start  20 www.nclc.org ©2013 National Consumer Law Center

23 PROTECTION OF THE FAMILY HOUSEHOLD GOODS B A D C B C D B C B A B D F A C D RI F C F F B B D D F C DE D B C A D.C. D D D A D B C A D D C F D D C A B D D A V.I. P. R . D F 21  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

24 Ten states—Idaho, Indiana, Iowa, Mississippi, North Dakota, Rhode Island, South Caro- lina, Tennessee, Vermont, and West Virginia—protect at least $7000 but less than $10,000 of household goods, or provide a wild card exemption that will protect $7000 of house- hold goods and a motor vehicle worth at least $2000. Eighteen jurisdictions—Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Illinois, Kentucky, Maryland, Missouri, Montana, New Mexico, Oregon, South Dakota, Utah, the Virgin Islands, Virginia, and Wyoming— protect only between $2000 and $6999 of household goods. Seven jurisdictions—Arkansas, Delaware, Michigan, Nebraska, New Arkansas, Delaware, Jersey, Pennsylvania, and Puerto Rico—protect virtually none of the debtor’s household goods. For example, Arkansas provides a $200 Michigan, Nebraska, New exemption ($500 if the debtor is married or the head of a household), Jersey, Pennsylvania, which must cover all personal property. Delaware provides just a and Puerto Rico $500 exemption for all personal property except work tools, clothing, and bedding. This shocking indifference to debtors and their families protect virtually none means that creditors can clean out a family’s home even though used of the debtor’s household goods typically have little or no resale value. household goods. Some states allow a married couple to preserve jointly-owned per- sonal property, such as household goods or a car, from creditors if only one of the two spouses owes the debt. This rule, called “tenancy by the entireties,” ameliorates the harshness of low household good exemptions in some states, but only in the relatively uncommon case when only one of two spouses owes the debt. It provides no help to widows, widowers, divorced parents, or single individuals. NCLC’s Model Family Financial Protection Act protects all the debtor’s household goods, but allows the creditor to ask a court to allow sale of any item worth more than $3000. This approach ensures that a family will not be stripped of essential items needed for daily life, yet at the same time does not protect high-cost luxury items. States should also take care to prevent creditors from evading state restrictions on sei- zure of household goods. The primary way that creditors evade these restrictions is by having the borrower put up household goods as collateral for the loan. Then, if the borrower defaults, the creditor has the right to seize the household goods, even if state 21 prohibits lenders from exemption law protects them. The FTC Credit Practices Rule taking certain household goods as collateral (unless the credit is extended to purchase those household goods), but leaves a large number of household goods unprotected. 22 No Fresh Start  www.nclc.org ©2013 National Consumer Law Center

25 PROTECTING A BASIC AMOUNT IN A BANK ACCOUNT Even if a state’s exemption laws protect a debtor’s home and essential personal property, a debtor needs to be able to access some basic amount of cash to commute to work, buy groceries, and pay the upcoming rent or mortgage payment or the next payment on the family car. A debtor who is left without cash may also be unable to pay for bus fare, daycare, utility service, and other Improper Bank Account Seizure necessities, not to mention emergency Puts Family at Risk expenses such as car repairs. Every state gives a creditor the right Ms. C., 49, from the Bronx in New York, discovered that to seize funds in a bank account in the she had been sued when her bank account, containing debtor’s name once it has obtained her tax return, was restrained without notice. The shock a judgment from a court determin- of losing access to her bank account and the stress ing that the debtor owes a debt. Many of finding out she had been sued exacerbated a pre- states allow the creditor to clean out the existing medical condition, which required emergency account completely, protecting at most eye surgery. As a result of the surgery, Ms. C. could not a few special types of accounts such as return to work immediately and needed the funds even college savings accounts. Only a few more desperately to cover her family’s expenses while states set a fixed amount that the credi- she recuperated. The underlying case was for an alleged tor cannot touch. medical debt for her disabled 20-year old son. However, Ms. C. had never previously heard of the plaintiff and Protecting bank accounts is particularly had never received any notices or bills from the company. important in light of the growing use Ms. C. notified the plaintiff that she had never been served of direct deposit of wages. If a creditor with court papers and that she disputed the validity of can clean out the debtor’s bank account, the debt, but instead of lifting the restraint, the plaintiff this can amount to seizure of 100% of levied the restrained funds. Only after going to court with the debtor’s wages, in essence nullifying the help of a local legal services program was Ms. C. the federal and state limits on wage gar- ultimately able to regain the money. nishment. Some state wage garnishment laws are interpreted to protect wages even after they are deposited in a bank account, but typically these laws are not self-executing: the debtor must go to court and present evidence tracing the funds on deposit to specific wage deposits. This process can take weeks. In the meantime, the account is frozen so the debtor cannot pay the rent, bus fare, car payment, or mortgage payment. Not only is the account frozen but hundreds of dollars of bank fees will be imposed against the next paycheck deposited, undermining the debtor's ability to pay the next month's bills. The Importance of Self-executing Protections In 2010, a group of federal agencies led by the U.S. Treasury Department addressed a similar problem with respect to federal benefits, such as Social Security benefits that are direct-deposited into the beneficiary’s bank account. Even though federal law makes Social Security and other similar federal benefits immune from garnishment for all 23  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

26 PROTECTION OF FAMILY BANK ACCOUNTS (See Appendix E on page 39 for specifics on each jurisdiction's rating.) B D B B B B B B F A A A D F C F F RI F B B F B D D D F C DE F B B B D.C. C F D F F B B B D C B F D F B F F B F B V.I. P. R . F F A tates that protect at least $1200 in bank account S B tates that protect at least $700 in bank account, plus car and household goods worth at least S $9000, or that explicitly exempt deposited wages tates that protect at least $700 in bank account, plus car and household goods worth total of S C $7000 D S tates that protect car and household goods worth at least $4000 to $6999, plus at least $300 in bank account tates with no protection, or with protection only for specialized types of accounts, or that S F provide just a wild card of $3999 or less for bank account, household goods, and car No Fresh Start  24 www.nclc.org ©2013 National Consumer Law Center

27 purposes except child support, creditors were seizing those funds once they were depos- 22 To reverse the seizure of the benefits, the beneficiary had to navigate the court ited. system and prove the source of the funds, and in the meantime had no access to these essential benefits. In 2010, the Treasury Department adopted a rule that requires a bank that receives a garnishment order to determine whether the bank account contains elec- tronically deposited exempt federal benefits. If it does, the bank must protect the last 23 two months of deposits. The beauty of the 2010 Treasury rule is that it is designed to be self-executing. The bank protects the funds. No action on the part of the beneficiary is necessary—the beneficiary does not have to file papers in court, attend court hearings, or present evidence about the source of the funds. And because the protection is self-executing, the account is not frozen while the beneficiary tries to navigate the judicial system. The approach of auto- matically protecting electronically deposited exempt benefits was pioneered by Califor- nia and New York, which adopted similar laws prior to the Treasury Department rule. The Treasury rule, while a great improvement, still has gaps. It protects only certain federal benefit payments and only two months of those payments. It does not protect state-paid benefits. Most critically, it does not protect wages that are deposited into bank accounts or any portion of a family’s savings. However, it is a demonstration of the prac- ticality and effectiveness of a self-executing protection for bank accounts, and a model for the states. How the States Rate The analysis of states’ protection of bank accounts shown in Appendix E is from the point of view of a debtor who is supporting a family and renting a home or apartment. 24 If the state The median amount of rent paid by a family in the U.S. is $717 per month. provides a targeted exemption of at least $1200 in a bank account, a family living in rela- tively low-rent housing will be able to pay the rent ($700) and will have $500 for other monthly expenses such as utility service or commuting costs. This is a very low stan- dard, as the median rent in a metropolitan area can greatly exceed $700 per month. Yet only Massachusetts, New York, and Wisconsin fall in this category. The map on page 24 gives these states an “A” rating. Exemptions like those in Massachusetts and Wisconsin that set a fixed amount that is exempt in a bank account are especially worthy of consideration by the states because they can be structured to be self-executing. The bank holding the account can potentially preserve the exempt amount without the need for action by the debtor, or can at least alert the debtor about the availability of this specific exemption. Other states do not provide a targeted exemption of $1200 or more for bank accounts, but provide a series of exemptions, usually including a wild card that the debtor can apply to exempt a car, household goods, and a sum of money in a bank account. If the state allows the debtor to exempt household goods and a car worth a total of at least $9000, plus $700 in a bank account, the table gives the state a “B.” With these exemp- tions, a debtor could exempt an average used compact car ($7000), $2000 worth of 25  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

28 household goods, and enough money to pay a month’s rent in relatively low-rent hous- ing. States whose statutes explicitly provide that wages remain exempt after deposit in a bank account are also rated “B,” as they provide an important, albeit limited, protection for wage earners’ bank accounts. States whose exemption schemes allow a debtor to exempt a car and household goods worth a total of $7000 plus $700 in a bank account, and that do not explicitly provide that the exemption for wages continues after deposit, rate a “C.” Those that allow exemption of a car and household goods worth a total of $ 4000 to $6999 and at least $350 in a bank account, and do not have an explicit statutory exemption for deposited wages, rate a “D.” The remaining states rate an “F.” Some of these states provide no means for a debtor to exempt any amount in a bank account, or protect only a few specialized types of accounts such as college tuition accounts. Others in this category provide a wild card that can be applied to a bank account, but it is $3999 or less and must also cover house- hold goods and the family car. OTHER IMPORTANT EXEMPTIONS Pensions—Protecting Retirees from Destitution Just as states must protect wages in order to save working families from destitution, they must also protect retirement income. Retirees typically have fewer options than younger adults. Too old or frail to rejoin the workforce, their retirement funds must cover not just housing costs, food, transportation, and utilities but also growing expenses for home care, medications, and adaptive equipment. The money in a retirement fund may seem like an attractive target for a creditor, but the fund must last the rest of the retiree’s life. The great majority of jurisdictions protect retirement funds to some extent. However, some states protect just certain pensions or certain types of retirement vehicles. Some place a dollar cap on the amount protected. Others limit the protection to an amount necessary for support, which invites creditors to try to persuade a court to reduce an elderly debtor to penury. NCLC’s Model Family Financial Protection Act treats all pensions and retirement funds equally. Given current life expectancies and the magnitude of potential medical and home care expenses, the Model Law protects $1,500,000 of retirement funds for the debtor, and $1,500,000 for each of the debtor’s dependents except to the extent they have other means of support. Work Tools Many debtors—skilled craftsmen, farmers, or orchard workers—require special- ized tools and equipment in order to maintain productive employment. Other work- ers require computer equipment and programs in order to earn an income. It is No Fresh Start  26 www.nclc.org ©2013 National Consumer Law Center

29 counterproductive to allow creditors to seize and sell items that enable a debtor to be employed, support a family, and pay debts. Many states provide a special exemption for tools of the trade, but states vary widely. Some offer no exemption or one as low as $75, while others exempt $10,000 or more in tools of the debtor’s trade. NCLC’s Model Family Financial Protection Act provides that $30,000 in tools of the trade, or $50,000 in the case of farm tools, are exempt from seizure by creditors. So that unemployed debtors are not shut out of their field of employment, it allows a debtor who is searching for employment to claim the same tools of the trade as exempt. RECOMMENDATIONS: WHAT STATES CAN DO TO PROTECT FAMILY FINANCES States have good reason to be concerned about protecting their residents from over- aggressive collection of judgments for consumer debts. The economic downturn has strained families to the breaking point, and the growth of the debt buyer industry makes them increasingly vulnerable to seizure of essential wages and property. State exemption laws should: • Preserve the debtor’s ability to work , by protecting a working car, work tools and equipment, and money for commuting and other daily work expenses. • Protect the family’s housing, necessary household goods, and means of transportation. —a wage that can meet basic needs and Protect a living wage for working debtors • maintain a safe, decent standard of living within the community. • Protect a reasonable amount of money on deposit so that debtors can pay commut- ing costs and upcoming bills such as rent and utility bills. • by restricting creditors’ ability to seize retirement Protect retirees from destitution funds. Be automatically updated for inflation. • For example, Close loopholes that enable some lenders to evade exemption laws. • states that allow payday lending enable these lenders to evade state laws that pro- tect wages and exempt benefits from creditors. States that allow lenders to take household goods as collateral enable these lenders to avoid state household good exemptions. • Be self-enforcing to the extent possible , so that the debtor does not have to file complicated papers or attend court hearings. Model language for states to achieve these goals is provided in the National Consumer , available at Model Family Financial Protection Act Law Center’s . www.nclc.org/mffpa 27  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

30 At the same time, policymakers need to address the pervasive abuse of the court system by debt buyers. Debt buyers obtain an endless stream of court judgments against con- sumers without any documentation that the consumer actually owes the debt. These judgments then enable the debt buyer to seize consumers’ wages, cars, household goods, homes, and bank accounts—the harsh collection remedies highlighted in this report. suggests steps that states can take Part I of NCLC’s Model Family Financial Protection Act to tighten up their procedures and reduce these abuses. By updating their exemption laws, states can prevent debt buyers from reducing fami- lies to poverty. These protections also benefit society at large, by keeping workers in the work force, helping families stay together, and reducing the demand on funds for unem- ployment compensation and social services. No Fresh Start  28 www.nclc.org ©2013 National Consumer Law Center

31 ENDNOTES A s early as 1968, when Congress adopted the wage garnishment limitations of the Consumer 1. Credit Protection Act, it found: "The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce." 15 U.S.C. § 1671(a)(1). 2. R ichard M. Hynes, “Broke But Not Bankrupt: Consumer Debt Collection in State Courts” (60 Fla. L. Rev. 1 (2008). 3. R obert J. Hobbs and Chi Chi Wu, National Consumer Law Center, Model Family Financial Protection Act (June 2012; revised October 2013), available at http://www.nclc.org/mffpa . ick Jurgens and Robert J. Hobbs, National Consumer Law Center, 4. R The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts (July 2010), available at http://www.nclc.org/issues/debt-collection.html . 5. Pr ess Release, Attorney General Cuomo Sues to Throw Out Over 100,000 Faulty Judgments Entered Against New York Consumers In Next Stage of Debt Collection Investigation (July 22, 2009), available at http://www.ag.ny.gov/press-release/attorney-general-cuomo- sues-throw-out-over-100000-faulty-judgments-entered-against-new See also “Suit . Claims Fraud by Debt Collectors,” New York Times Dec. 30, 2009, available at http://www .nytimes.com/2009/12/31/nyregion/31debt.html?_r=0 . usan Shin and Claudia Wilner, New Economy Project, The Debt Collection Racket in New 6. S York at 4 (June 2013). The Structure and Practices of the Debt Buying Industry ederal Trade Commission, F 7. (Jan. 2013), available at . http://www.ftc.gov/os/2013/01/debtbuyingreport.pdf 8. R ick Jurgens and Robert J. Hobbs, National Consumer Law Center, The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts (July 2010), available at ht t p:// www.nclc.org/issues/debt-collection.html ; Claudia Wilner, New Economy Project (formerly the Neighborhood Economic Development Advocacy Project); Nasoan Sheftel-Gomes, Urban Justice Center; Carolyn Coffey, MFY Legal Services; Tashi Lhewa, The Legal Aid Society; and April Newbauer, Legal Aid Society; Debt Deception: How Debt Buyers Abuse the Legal System to Prey on Lower-Income New Yorkers (May 2010) available at http://www.nedap.org/pressroom/ documents/DEBT_DECEPTION_FINAL_WEB.pdf . 9. (New York: Alfred A. obert A. Caro, The Path to Power: The Years of Lyndon Johnson, Vol. 1 R Knopf 1982). 10. S ee Sniadach v. Family Fin. Corp., 395 U.S. 337, 341-2 (1969) (prejudgment wage garnishment “may as a practical matter drive a wage-earning family to the wall”). 11. ee 15 U.S.C. § 1674(a) (prohibiting an employer from discharging an employee by reason of S the fact that "his earnings have been subjected to garnishment for any one indebtedness," but placing no restriction on discharge by reason of garnishment for more than one i ndebted ness). he 2013 federal poverty level for a one-person household is $11,490 a year or $220.96 per 12. T . http://aspe.hhs.gov/poverty/13poverty.cfm week. See 13. he 2013 federal poverty level for a four-person household is $23,550 per year or $452.88 per T http://aspe.hhs.gov/poverty/13poverty.cfm . week. See or the sake of simplicity, the maps in this section do not distinguish between gross and net 14. F wages. In drafting a wage garnishment limit, these distinctions are important, because the exact calculations can make a significant difference. 29  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

32 Se e www.dol.gov/whd/minwage/america.htm (listing state minimum wage amounts). 15. 16. T he judge can protect more in case of hardship. 17. Se e Robert J. Hobbs and Chi Chi Wu, National Consumer Law Center, Model Family Financial Protection Act, (June 2012, revised October 2013). ttp://www.autoremarketing.com/wholesale/adesa-may%E2%80%99s-year-over-year-wholesale- 18. h price-decline-mirrors-april%E2%80%99s-reading 19. . Id ttp://news.theregistrysf.com/u-s-median-home-prices-increase-11-percent-in-2012-says- 20. h http://www.census.gov/construction/nrs/pdf/uspriceann.pdf . See also ziprealty ) (median new home sales price in 2012 was $245,200); http://www.realtor.org/sites/default/files/ reports/2013/embargoes/ehs-7-22-kjuh/ehs-06-2013-overview-2013-07-22.pdf ) (median sales price of an existing home in 2012 was $176,800) 6 C.F.R. Part 444. 1 21. Se 22. , Mayers v. New York Cmty. Bankcorp, 2005 WL 2105810 (E.D.N.Y. Aug. 31, 2005). e, e.g. 1 C.F.R. Part 212. 3 23. (Table 11A/B. Median Asking Rent tp://www.census.gov/housing/hvs/data/histtabs.html ht 24. and Sales Price of the U.S. and Regions: 1988 to Present) (2012 figure). No Fresh Start  30 www.nclc.org ©2013 National Consumer Law Center

33 APPENDIX A STATE PROTECTION OF WAGES NCLC’s Model Family Financial Protection Act Recommendation: 80 times federal or state minimum wage or 10% of disposable income (15% if weekly disposable income exceeds $1200) STATE AMOUNT PROTECTED “A” States Ban Wage Garnishment for Most Debts North Carolina All wages exempt if supporting a family Pennsylvania All wages exempt for most debts All wages exempt South Carolina Te x a s All wages exempt “B” States Preserve 90% of the Debtor’s Wages Iowa 90% to 97% of wages, depending on amount of annual earnings 90% of wages for head of family Missouri New Jersey 90% of wages if under 250% of federal poverty level New York 90% of wages earned in the last 60 days, or 30 times state or federal minimum wage (now $7.25) 90% of wages Virgin Islands “C” States Protect Enough Wages So That Paycheck Does Not Drop Below the Poverty Level ($452.88 per week for family of four) Alaska $2970 per month (about $691 per week, which is 95 times the federal minimum wage), if debtor’s income is sole support of household First $750 is exempt if wage earner is head of family Florida Wisconsin Federal poverty amount, based on family size, is exempt “D” States Preserve More of a Worker’s Wages than the Minimum Required by Federal Law California 40 times state minimum wage for individual; more if debtor proves higher amount is needed 30 times state minimum wage ($7.78 per hour as of Jan. 1, 2013) Colorado 40 times state or federal minimum wage ($8.25 per hour) Connecticut 85% of wages Delaware Hawaii All but 5% of the first $100 in wages, all but 10% of the next $100, and all but 20% of the remainder Illinois 85% of wages or 45 times federal minimum wage Maine 75% of wages or 40 times federal minimum wage (for consumer credit transactions) 85% of wages or 50 times the greater of the state or federal minimum wage Massachusetts 75% of wages or 40 times federal minimum wage Minnesota 85% of wages of head of household Nebraska 75% of wages or 50 times federal minimum wage Nevada 31  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

34 STATE AMOUNT PROTECTED “D” States Preserve More of a Worker’s Wages than the Minimum Required by Federal Law ( continued ) 50 times federal minimum wage New Hampshire New Mexico 75% of wages or 40 times federal minimum wage North Dakota 75% of wages or 40 times federal minimum wage, plus $20 per dependent 80% of wages, or 40 times federal minimum wage plus $25 per dependent South Dakota Tennessee 75% of wages or 30 times federal minimum wage, plus $2.50 per week for each dependent child under age 16 85% of wages or 40 times federal minimum wage; if debt arose from Vermont consumer credit transaction, more is protected if debtor shows need 75% of wages or 40 times federal minimum wage Virginia Washington 75% of wages or 35 times federal minimum wage West Virginia 80% of wages or 30 times federal minimum wage “F” States Protect Only the Federal Minimum 75% of wages or 30 times federal minimum wage Alabama 75% of wages or 30 times federal minimum wage Arizona Arkansas 75% of wages or 30 times federal minimum wage District of Columbia 75% of wages or 30 times federal minimum wage Georgia 75% of wages or 30 times federal minimum wage 75% of wages or 30 times federal minimum wage Idaho 75% of wages or 30 times federal minimum wage Indiana Kansas 75% of wages or 30 times federal minimum wage Kentucky 75% of wages or 30 times federal minimum wage 75% of wages or 30 times federal minimum wage Louisiana Maryland 75% of wages or 30 times federal minimum wage 75% of wages or 30 times federal minimum wage Michigan 75% of wages or 30 times federal minimum wage Mississippi Montana 75% of wages or 30 times federal minimum wage Ohio 75% of wages or 30 times federal minimum wage Oklahoma 75% of wages or 30 times federal minimum wage, but judge can protect more in case of hardship Oregon 75% of wages or 30 times federal minimum wage 75% of wages or 30 times federal minimum wage Puerto Rico 75% of wages or 30 times federal minimum wage Rhode Island Utah 75% of wages or 30 times federal minimum wage Wyoming 75% of wages or 30 times federal minimum wage No Fresh Start  32 www.nclc.org ©2013 National Consumer Law Center

35 APPENDIX B PROTECTION OF THE FAMILY CAR NCLC’s Model Family Financial Protection Act Recommendation: $15,000 car ($25,000 if adapted for disability), plus $10,000 wild card STATE VALUE OF CAR PROTECTED “A” States Protect an Average Used Compact Car from Seizure Idaho $7000 Iowa $7000 $20,000 Kansas Louisiana $7500 Massachusetts $7500 $15,000 Nevada $7500 Oklahoma Puerto Rico No cap if vehicle used in occupation Rhode Island $12,000 “B” States Provide At Least $9000 in Combined Exemption for Car and Household Goods $10,650 but only if debtor does not claim homestead exemption District of Columbia Indiana $9350 $10,000 Mississippi $4000 car, $1000 wild card, plus up to $7000 in unused exemption for tools, New Hampshire household goods, and certain other items $4000 car plus up to $5000 wild card if debtor does not claim homestead New Mexico exemption $3500 car plus up to $5000 if debtor does not use homestead exemption North Carolina $2950 plus up to $7500 wild card North Dakota $5625 plus up to $5625 wild card South Carolina $10,000 Tennessee $30,000 wild card ($60,000 for a family) that can be applied to household Te x a s goods, vehicles, and various other items Vermont $2500 plus up to $7000 of unused exemptions for other specified personal property Wisconsin $4000 plus up to $12,000 wild card “C” States Protect a Car Worth $5000 to $6999 Arizona $6000 Colorado $5000 $5000 Maine Maryland No specific protection; $6000 wild card is available but must also cover any household goods over $1000 33  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

36 STATE VALUE OF CAR PROTECTED “C” States Protect a Car Worth $5000 to $6999 ( continued ) Virginia $6000 $3250 plus $3000 wild card Washington $5000 West Virginia Wyoming $5000 “D” States Protect a Car Worth $1500 to $4999 Alaska $4050 in car worth not more than $27,000 $2900 California $3500 plus $1000 wild card. Connecticut $1000 plus unused homestead exemption up to $4000, which must also cover Florida any household goods over $1000 $5000 exemption but must also cover household goods and other personal Georgia property Hawaii $2575 $2400 Illinois Kentucky $2500 Minnesota $4600 Missouri $3000 plus $600 wild card ($1250 for head of family with additional $350 per dependent minor child) $2500 Montana Nebraska $2400 (tools of trade exemption; must be used for work or commuting). New York $4000 $3450 Ohio Oregon $3000 $5000 wild card ($7000 for head of household), but must also cover household South Dakota goods Utah $3000 “F” States Provide No Realistic Protection for the Debtor’s Car Protects just $3000 total for household goods, car, and tools Alabama Arkansas Only protects car worth $1200, and then only if debtor files bankruptcy; otherwise a $200 exemption ($500 if married or head of household) must cover all personal property Delaware Unless debtor files bankruptcy, only protection is a $500 wild card that must cover all property except bedding, clothing, and work tools Protects car worth $1000 but only if used in debtor’s principal business or Michigan profession New Jersey Protects just $1000 of real and personal property (plus $1000 for household goods and furniture). Pennsylvania Protects just $300 total for household goods, car, and other personal property Virgin Islands No protection No Fresh Start  34 www.nclc.org ©2013 National Consumer Law Center

37 APPENDIX C PROTECTION FOR THE FAMILY HOME Median house price NCLC’s Model Family Financial Protection Act Recommendation: STATE HOME EXEMPTION AMOUNT “A” States that Protect the Family Home Regardless of Value Arkansas Limit on number of acres, but no dollar cap (head of household only) No dollar cap District of Columbia (head of household only) Limit on number of acres, but no dollar cap Florida Iowa Limit on number of acres, but no dollar cap Limit on number of acres, but no dollar cap Kansas Limit on number of acres, but no dollar cap Oklahoma South Dakota Limit on number of acres, but no dollar cap Te x a s Limit on number of acres, but no dollar cap “A” States that Protect a Median-Priced Home ($211,312) Massachusetts $125,000 (up to $500,000 if recorded homestead declaration) Minnesota $390,000 ($975,000 if a farm) Montana $250,000 $550,000 Nevada Rhode Island $500,000 “B” States Protect a Home Worth $100,000 to $211,311 $150,000 Arizona $100,000 Idaho New Hampshire $100,000 $100,000 North Dakota $125,000 Ohio Vermont $125,000 Washington $125,000 35  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

38 STATE HOME EXEMPTION AMOUNT “C” States Protect a Home Between $50,001 and $99,999 in Value Alaska $70,900 California $75,000, but $100,000 if married; $175,000 for certain elder, disabled, or low- income debtors $60,000 ($90,000 if elderly or disabled) Colorado Connecticut $75,000 ($125,000 for hospital debt) Maine $47,500, but $95,000 if household includes dependent minor or if debtor or dependent is elder or disabled Mississippi $75,000 Nebraska $60,000, but only for head of household or elder $60,000 ($120,000 if home is jointly owned) New Mexico New York $75,000 to $150,000, depending on county South Carolina $56,150 $75,000 Wisconsin “D” States Only Protect a Home Worth $5001 to $50,000 Georgia $21,500 $20,000 ($30,000 if head of household) Hawaii $15,000 Illinois Indiana $ 1 7, 6 0 0 $35,000 Louisiana Maryland No homestead exemption, just $6000 wild card $15,000 Missouri $35,000 ($60,000 for certain elders) North Carolina $40,000 ($50,000 if married) Oregon $15,000 (head of family only) Puerto Rico Tennessee $5,000 to $25,000, depending on owner’s age, marital status, and minor children Utah $30,000 Virgin Islands $30,000 $20,000 Wyoming “F” States Provide Little or No Protection for the Family Home Alabama $5000 $500 wild card can be applied to home (head of family only) Delaware $5000 Kentucky Michigan $3500 None New Jersey $300 wild card Pennsylvania Virginia $5000 (plus $500 per dependent); $10,000 for elder West Virginia $5000 No Fresh Start  36 www.nclc.org ©2013 National Consumer Law Center

39 APPENDIX D PROTECTION OF FAMILY HOUSEHOLD GOODS NCLC’s Model Family Financial Protection Act Recommendation: All household goods, but creditor can seek court order to seize any item worth over $3,000 AMOUNT OF PROTECTION FOR HOUSEHOLD GOODS STATE “A” States Protect All of a Debtor’s Necessary Household Goods California All necessary household goods All necessary household goods Connecticut Hawaii All necessary household goods All necessary household goods Kansas All necessary household goods Louisiana Maine All household goods and appliances as long as item value does not exceed $200, plus wild card of $400 to $6000 that can be used to protect more expensive items New York All household furniture plus stove, refrigerator, and certain other items All necessary household goods Oklahoma “B” States Protect at Least $10,000 of Household Goods District of Columbia $8,625 plus a wild card of up to $8075 if debtor does not claim homestead exemption Massachusetts $15,000 Minnesota $10, 350 $12,000 plus a $1000 wild card Nevada $3500 plus a $1000 wild card plus up to $7000 of unused exemptions New Hampshire Up to $14,000 depending on number of dependents and whether debtor claims North Carolina homestead exemption Ohio $11, 525 Te x a s $30,000 for individual, $60,000 for family Washington $6500 for individual, $13,000 for married persons, plus $3000 wild card $12,000 Wisconsin “C” States Protect $7000-$9999 of Household Goods $7500 Idaho $9350, but must also cover motor vehicle Indiana Iowa $7000 Mississippi $10,000 wild card ($50,000 for elders) but must also cover any motor vehicle $1000, plus $7500 if head of household or $3750 if individual North Dakota $9600 Rhode Island South Carolina $4500 plus up to $5000 of certain unused exemptions AMOUNT OF PROTECTION FOR HOUSEHOLD GOODS STATE 37  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

40 “C” States Protect $7000-$9999 of Household Goods ( continued ) Tennessee $10,000 wild card but must also cover motor vehicle Vermont $2500, plus $400 wild card and up to $7000 of unused exemptions for other specified personal property West Virginia $8000 (plus $1000 wild card for head of household) “D” States Protect $2,001-$6999 in Household Goods Alabama $3000 Alaska $4050 Arizona $4000 $3000 Colorado Florida $1000 plus unused homestead exemption up to $4000 $5000 Georgia Illinois $4000 Kentucky $3000 $1000 plus $6000 wild card Maryland Missouri $3000 plus $600 wild card (for head of family additional $1250 wild card and $350 per dependent child) Montana $4500 New Mexico Furniture and books plus $500 wild card and up to $5000 of unused homestead exemption $3000 Oregon South Dakota $5000 wild card ($7000 if head of household), which must also cover any motor vehicle Utah $4000 plus appliances, food, and bedding Virgin Islands $3000 Virginia $5000 $4000 Wyoming “F” States Protect Almost None of a Debtor’s Household Goods Arkansas $200 ($500 if married or head of household), which must cover all personal property Delaware Just apparel and bedding, plus $500 wild card, which must cover all personal property except work tools Michigan $1000 Nebraska $1500 New Jersey $1000 household furnishings, plus $1000 wild card, which must also cover car, work tools, and other property Pennsylvania $300 wild card, which must also cover car, work tools, and other property Puerto Rico $850 No Fresh Start  38 www.nclc.org ©2013 National Consumer Law Center

41 APPENDIX E PROTECTION OF FAMILY BANK ACCOUNTS $10,000 in a bank NCLC’s Model Family Financial Protection Act Recommendation: account STATE AMOUNT OF PROTECTION FOR FAMILY BANK ACCOUNTS “A” States Protect At Least $1200 in Bank Account $2500 Massachusetts $1740 (240 times the minimum wage), and a possible $1000 exemption in lieu of New York homestead exemption Wisconsin $5000 ($10,000 for married couple) “B” States Protect at Least $700 in Bank Account, Plus Car and Household Goods Worth At Least $9000, or That Explicitly Exempt Deposited Wages California Protects deposited wages District of Columbia Protects $8250 household goods, $2575 vehicle, plus $850 wild card that can be used for bank account Florida Protects deposited wages Protects deposited wages Hawaii $1000 (cash, bank accounts, or any other personal property); also exempts $7000 Iowa in household goods and vehicle worth $7000 Minnesota Protects deposited wages Mississippi $10,000 wild card that can cover car, household goods, and money Protects deposited wages Montana Protects deposited wages; also provides $2500 wild card that appears to be Nebraska available for bank account Protects $400 in bank account, and $1000 wild card is also available; protects Nevada car and household goods worth more than $9000; also protects deposited wages $3500 household goods, $4000 motor vehicle, plus $1000 wild card (increased to New Hampshire $5000 if debtor does not claim work tools) that can be applied to bank account $3500 car; $5000 household goods ( plus $1000 more per dependent, up to an North Carolina additional $4000), plus wild card of $5000 of unused homestead exemption North Dakota $2950 car, $7500 ($3750 if not head of family) wild card, plus additional $7500 wild card if debtor does not claim homestead exemption Protects deposited wages Oklahoma Protects deposited wages; also provides $400 wild card that appears to be Oregon available for bank account South Carolina $5625 for motor vehicle, $4500 household goods, plus $5625 cash or liquid assets if debtor does not claim homestead $10,000 wild card that can be applied to household goods, car, and bank Tennessee account Vermont $700 in bank account; protects $2500 car and $2500 household goods but debtor who does not claim exemption for work tools or crops can exempt $7000 more 39  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

42 AMOUNT OF PROTECTION FOR FAMILY BANK ACCOUNTS STATE “B” States Protect at Least $700 in Bank Account, Plus Car and Household Goods Worth At Least $9000, or That Explicitly Exempt Deposited Wages ( continued ) Washington $200 in bank account; $6500 household goods; $3250 motor vehicle; plus $3000 wild card, of which $500 can be used for bank account West Virginia $1000 in bank account; $2400 motor vehicle; $8000 household goods “C” States Protect at Least $700 in Bank Account, plus Car and Household Goods Worth Total of $7000 All necessary household goods plus $3500 vehicle and $1000 wild card that can Connecticut be applied to bank account (all necessary household goods plus $3500 vehicle is probably the equivalent of a combined exemption of $7000 so falls within th is category) $350 for bank account plus $9350 personal property Indiana $4000 motor vehicle, $5000 wild card if debtor does not claim homestead New Mexico exemption; note that furniture is also exempt so New Mexico rates a high “C” $5000 wild card for any property, plus $5000 for household goods and $6000 Virginia for vehicle “D” States Protect Car and Household Goods Worth at Least $4000 to $6999, plus at Least $300 in Bank Account $4000 household goods, $6000 car, but only $300 in bank account and no wild Arizona card that can be applied to bank account $5000 wild card for all real and personal property Georgia $2400 for motor vehicle, plus $4000 wild card that can be used for bank account Illinois and household goods $400 general wild card that can be applied to bank account, plus any household Maine goods worth less than $200 per item and a car worth up to $5000, plus up to $6000 of unused homestead exemption, which that can be applied to household goods Maryland $1000 for household goods, plus $6000 wild card that can be applied to bank account Missouri $3000 household goods, $3000 car, and $600 wild card that can be applied to bank account Protects $425 in bank account, $3450 motor vehicle, and $11,525 in household Ohio goods; no wild card that can be applied to protect more in bank account South Dakota $7000 wild card ($5000 if not head of family) to cover car, motor vehicle, and bank account No Fresh Start  40 www.nclc.org ©2013 National Consumer Law Center

43 STATE AMOUNT OF PROTECTION FOR FAMILY BANK ACCOUNTS “F” States With No Protection, or With Protection Only For Specialized Types of Accounts, or Provide Just a Wild Card of $3999 or Less for Bank Account, Household Goods, and Car Alabama $3000 wild card must cover household goods, car, and bank account $1400 ($2200 if sole support of household), but only if individual is not Alaska receiving earnings weekly, monthly, or semi-monthly; $4050 car, $4050 household goods $200 ($500 if married or head of household) for all personal property Arkansas Colorado No exemption that can be applied to bank account Delaware $500 wild card must cover bank accounts and all personal property except bedding, clothing, and work tools No exemption that can be applied to bank account Idaho No exemption that can be applied to bank account Kansas Kentucky No exemption that can be applied to bank account No exemption that can be applied to bank account Louisiana Michigan $1000 wild card but must cover household goods and vehicle New Jersey $1000 wild card must cover all personal property except clothing and $1000 of household goods and furniture Pennsylvania $300 exemption must cover all property No exemption that can be applied to bank account Puerto Rico No exemption that can be applied to bank account Rhode Island No exemption that can be applied to bank account Te x a s No exemption that can be applied to bank account Utah No exemption that can be applied to bank account Virgin Islands No exemption that can be applied to bank account Wyoming 41  No Fresh Start www.nclc.org ©2013 National Consumer Law Center

44 ® NCLC NATIONAL CONSUMER LAW Washington Office: Boston Headquarters: 1001 Connecticut Ave, NW 7 Winthrop Square CENTER Boston, MA 02110-1245 Suite 510 ® Phone: 617/542-8010 Washington, DC, 20036 Advancing Fairness Phone: 202/452-6252 Fax: 617/542-8028 Fax: 202/463-9462 www.nclc.org in the Marketplace for All

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