This is general information about how you may be able to protect some of your property from collection. For information about your particular case, you should talk to a lawyer.
This article focuses entirely on protecting personal property such as cars, boats, computers, or money in the bank. It does not focus on protecting wages from garnishment. If you have received a Wage Garnishment order (called “Suggestee Execution”) click here for a different Legal Aid article about protecting wages.
Who Can Protect Personal Property From Being Attached To Pay A Debt?
“Any individual” living in West Virginia can protect personal property from being attached to pay a judgment debt. You do not have to be a “head of household.” This protection is available to “any individual residing in this state.” This protection is called a “Personal Property Exemption.”
West Virginia law allows you to protect certain items of property from being taken by a creditor. This protection is available even against payment of a valid legal judgment. The purpose is to assure that families and children have at least some money to cover the basic necessities of life.
What Is a “Personal Property Exemption”?
A “Personal Property Exemption” allows “any individual residing in this state” to “exempt” some personal property from the normal court judgment collection process.
Assume a creditor or landlord sued you. He won a court judgment that says you owe the money. He then has three ways to try to collect the money:
- Have the court order that money be taken out of your paycheck before you are paid. This is called a “wage garnishment” or a “suggestee execution.” Click here for an article about protecting wages from garnishment.
- Have the court take money from your bank accounts.
- Have the sheriff "attach" your cars or household goods to sell. The money produced from the sale would be used to pay the debt.
The Personal Property Exemption can protect some of your property from these collection powers. The law puts a cap on the dollar amount you can protect, for different types of personal property. If your dollar values are less than those caps, you can protect all of your property; if your dollar values are more than those caps, you can protect some but not all personal property.
The procedure for the Personal Property Exemption is not automatic. You must file an “Exemption Form” with the court. The Court then will issue a “release” to stop the collection procedure. The collection procedure will not stop until the release is given to the bank or sheriff.
How Does The Personal Property Exemption Work?
First, the creditor must win a law suit proving that you owe money. At the end of that case the court will issue a “judgment order” stating the exact amount of money that is owed as of that date. (Interest is also added from the date the judgment order is issued until the date it is paid off in full.)
After getting a judgment order, the creditor must file separate papers with the court to ask for these legal collection methods to be used.
Copies of the creditor’s request for collection procedures will be sent to you.
As soon as you learn about the collection request, you can go the Clerk’s Office to file an Exemption Form to protect some (or even all) of your personal property items.
What Property Can Be Protected?
There are five categories of personal property. Each category has its own dollar limit on how much can be protected:
- One motor vehicle -- Up to $5,000 total value
- Household goods, appliances, clothing, books, etc -- Up to $8,000 total value
- Implements, professional books, or tools of trade -- Up to $3,000 total value
- Money in bank accounts or savings & loan accounts -- Up to $1,100 total value
- Money in an IRA or retirement account -- No dollar limit
That All Adds Up To $17,000. Is That The Amount I Can Protect?
No. There is an overall limit of $15,000 on the first four categories combined.
If you have more than $15,000 in these four categories, you will only be able to protect $15,000. You will have to choose which category to take less than the full amount, in order to fit all of them under the $15,000 cap.
Can I Protect Land Or My House Using the Personal Property Exemption?
No. Land or a house is not "personal property."
Everything else you may own is “personal property.” Cash, bank accounts, savings accounts; phones, computers, TV, DVD player, sound systems; furniture; washers, dryers, refrigerators, and other appliances; clothing; dishes, pots, pans and silverware; beds; books; pictures; cars, trucks, motorcycles, campers; mobile homes; and so on.
Can I Protect “Business” Property?
No. The second category allows you to protect household goods, furniture, toys, animals, appliances, books and wearing apparel which are “primarily for personal, family or household use.” Things you buy or sell as part of your business are not “primarily for personal, family or household use.”
But this is different from “implements, professional books, or tools of trade.” You CAN protect the tools and implements which you use to earn your living.
Can I Exempt Something Against A Collection Claim From the Creditor that Sold It to Me or Financed It For Me?
No. You cannot protect an item against the particular creditor that sold you that item, or the lender that financed it. You can protect that item from any other creditor, but not from the one that sold it to you.
For example, suppose you bought a TV on credit from ABC Department Store. You haven’t paid the bill. The store sued and got a court judgment saying you owed the money. Now the ABC Department Store wants to have the sheriff sell the TV to raise money to pay the debt. You cannot exempt the TV from the collection procedure by ABC Department Store.
What If My Car Is Worth More Than $5,000?
First, realize that this means the value of your car after any liens against it are paid. Suppose you own a car with Blue Book value of $6,000. But you still owe the bank $3,000 on the loan. The “value” of the car is only $3,000.
If the actual value is more than the $5,000 exemption limit, the creditor can insist that the car be sold to get the amount above the limit. You will get the first $5,000 from the sale. The creditor will get any amount above $5,000 (up to the amount of the judgment debt.)
Can I Apply “Unused” Protection in One Category to “Excess” property in Another Category?
No. Each of the first four categories has its own limit. There is no carry-over from one category to another. If your property in one category is over the limit for that category, you will have to choose which items of that type to protect and which to leave unprotected.
What If I Own More Personal Property Than These Limits Protect?
You will be able to protect some of your property, but not all of it. You will have to show on the Exemption Form which items you choose to protect. All other items will be unprotected.
If I Own More Than The Limit in Any Particular Category, How Should I Choose What To Protect?
Protect first the items that are easiest for the creditor to take.
Start with money, and money in bank accounts.
Then protect major appliances that are valuable and easy to re-sell, like computers, TVs, DVDs, stereos, etc.
Then protect major items of furniture, like sofas, living room suites and bedroom suites.
This may mean that you leave unprotected some things that are important to everyday living, such as your clothes or your kitchen utensils. Or you may leave unprotected things that have strong sentimental value, like your children’s baby pictures.
But these things aren't worth much even if they are sold. The sheriff can’t get much for your used clothes or your child’s baby pictures. So most creditors will not ask the sheriff to sell these things even though they are “unprotected.”
How Do I Decide The “Value” Of My Property?
The “value” is what it could be sold for today, in it’s present condition.
For example, if you sold your car through the Ad Bulletin, what do you think you could really get for it? If you sold your clothes or your furniture at a yard sale, how much would someone really pay for them? Consider the real, actual condition - is it dented and scratched, or is it brand new and in perfect condition?
You probably paid a lot more to buy the item when it was new than it is worth now.
You would probably have to pay a lot more to buy a replacement item than the current one is worth now.
Neither of those things matter. The only important question is: what is this property item worth right now in its present condition? How much would an ordinary person pay to buy this item?
How Do I Value An Item If I Still Owe Money On It?
Go through a two-step process. First, figure out what the item would bring if you sold it. Second, subtract whatever you still owe from the amount you would get if you sold it. Anything that’s left is the actual value. That is the amount you should put down as its value.
For example, suppose you still owe $1,200 on your car. The car has some problems, and you don't think you could get more than $800 for it. After you subtract the $1,200 still owing from the $800 you might get in a sale, your car has a true value of zero.
If you have any items on which you still owe money, you have to show both the “fair value” and the “amount owed” on the Exemption Form. Give the name of the creditor and the amount still owed on the item.
Do I Have To List Everything I Own, Or Just What I Want To Exempt?
You must list everything. The law requires that you must list all property. If the total value is over the limits, you have to identify which items you want to protect. The other items will be unprotected.
What About Wages?
There is an entirely different set of protections for Wages. Wages are not covered by these “personal property exemptions.” You do not protect wages by filing the Personal Property Exemption paperwork.
The short version of wage protection is that there are two limitations:
First, you must always be left with at least $362.50 per week “after taxes;”
Second, the creditor can never take more than 20% of wages; and
Third, the creditor cannot take the full 20% if that would mean that you had less than $362.50 per week after taxes.
Click here for the Legal Aid article about protecting wages from Garnishment.
When Do I Claim My Exemption?
As soon as you learn about the collection request. Act quickly. Go to the court clerk’s office. Fill in the Exemption Form and file it. This is especially true if you are protecting money in bank accounts.
Where Do I Get the Exemption Forms?
In the Clerk's Office of the court which issued the judgment.
You can also get them from the Supreme Court web site of forms. Click here.
Where Do I File My Exemption Form?
In the Clerk's Office of the court which issued the judgment. You will have to fill out TWO copies of the form. Do not sign them until you are in the Clerk’s Office. They will notarize the forms for you.
What Do I Do AFTER I File My Exemption Form?
When you file the Exemption form, the Clerk will then issue a “release.” You will get two copies. One copy is for yourself. One copy is for you to deliver to the person holding your money or property.
If the creditor is trying to garnish wages, you must take the Release to your employer.
If the creditor is trying to take money from a bank account, you must take the Release to the bank.
If the creditor is asking the sheriff to take property to sell, take the Release to the sheriff.
The collection method is not stopped until the Release is in the hands of the person holding your property (that is, your employer, or your bank, or the sheriff). It is up to you to get the Release to the Employer or the bank or the sheriff. The Clerk will mail a copy of the Exemption form and the Release to the creditor.
How Often Do I Have To Do This?
Only once, at the beginning of the process, unless there are changes in your personal property.
An attachment of property is valid for one year. If there are changes in your wages or your personal property during that year, you must file a new exemption form to report the changes.
If you inherited a car or an ATV when your dad died, you must file a new exemption form to let the court know about the new property.
If you got a bonus at work and bought a new computer, you have to file a new exemption form.
One year after the date the attachment was filed, that attachment expires.
However, the creditor can file a new garnishment if the judgment (with interest) still has not been paid in full.
If the creditor files a new garnishment, then the whole procedure starts over. You will need to file a new exemption form to cover the new garnishment.
If the creditor does NOT file a new garnishment after the old one expires, you have no further obligation to report changes in wages or property.