The answer to that question is yes. Exemptions are created under state law. They’re also available under bankruptcy law but most states have opted out of using the federal bankruptcy exemptions and they want to use their own state exemptions. There are exemptions that are always available if you’re in bankruptcy or not yet in bankruptcy and some states have additional exemptions if you’re asserting them in a bankruptcy case. But if creditors have obtained a judgment against you and, for example, you have a bank account that’s been seized and you’re not yet ready to file bankruptcy, you need to file a motion with the court asking to apply the exemptions that you’re allowed under state law. At that point, the court will almost certainly grant you those exemptions and then allow you to recover that bank account or that other asset as long as the value of the asset that’s being seized is within the value of your allowed statutory exemptions.
I’m not ready to file bankruptcy but judgment creditors are seizing my assets. Can I still claim exemption?
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Ronald J. Drescher has been practicing since 1986 in the areas of business transactions, commercial litigation, loan documentation, bankruptcy, creditors’ rights, and out-of-court workouts. His experience also includes corporate reorganizations, insolvency, business and tax planning.
