SB434_R1

Senate Bill No. 434–Committee on Judiciary

CHAPTER..........

AN ACT relating to exempt property; exempting from execution by creditors certain money held in a trust forming part of a qualified tuition program under certain circumstances; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 21.075 is hereby amended to read as follows:

21.075 1. Execution on the writ of execution by levying on

the property of the judgment debtor may occur only if the sheriff

serves the judgment debtor with a notice of the writ of execution

pursuant to NRS 21.076 and a copy of the writ. The notice must

describe the types of property exempt from execution and explain

the procedure for claiming those exemptions in the manner required

in subsection 2. The clerk of the court shall attach the notice to the

writ of execution at the time the writ is issued.

2. The notice required pursuant to subsection 1 must be

substantially in the following form:

NOTICE OF EXECUTION

YOUR PROPERTY IS BEING ATTACHED OR

YOUR WAGES ARE BEING GARNISHED

A court has determined that you owe money to

....................(name of person), the judgment creditor. He has

begun the procedure to collect that money by garnishing your

wages, bank account and other personal property held by

third persons or by taking money or other property in your

possession.

Certain benefits and property owned by you may be

exempt from execution and may not be taken from you. The

following is a partial list of exemptions:

1. Payments received under the Social Security Act.

2. Payments for benefits or the return of contributions

under the Public Employees’ Retirement System.

3. Payments for public assistance granted through the

Welfare Division of the Department of Human Resources.

4. Proceeds from a policy of life insurance.

5. Payments of benefits under a program of industrial

insurance.

6. Payments received as unemployment compensation.

7. Veteran’s benefits.

8. A homestead in a dwelling or a mobile home, not to

exceed $125,000, unless:

(a) The judgment is for a medical bill, in which case all of

the primary dwelling, including a mobile or manufactured

home, may be exempt.

(b) Allodial title has been established and not relinquished

for the dwelling or mobile home, in which case all of the

dwelling or mobile home and its appurtenances are exempt,

including the land on which they are located, unless a valid

waiver executed pursuant to NRS 115.010 is applicable to the

judgment.

9. A vehicle, if your equity in the vehicle is less than

$4,500.

10. Seventy-five percent of the take-home pay for any

pay period, unless the weekly take-home pay is less than 30

times the federal minimum wage, in which case the entire

amount may be exempt.

11. Money, not to exceed $500,000 in present value,

held [for retirement pursuant to certain arrangements or plans

meeting the requirements for qualified arrangements or plans

of sections 401 et seq. of the Internal Revenue Code (26

U.S.C. §§ 401 et seq.).] in:

(a) An individual retirement arrangement which

conforms with the applicable limitations and requirements

of 26 U.S.C. § 408;

(b) A written simplified employee pension plan which

conforms with the applicable limitations and requirements

of 26 U.S.C. § 408;

plan pursuant to the Internal Revenue Code;

(d) A trust forming part of a stock bonus, pension or

profit-sharing plan that is a qualified plan pursuant to

sections 401 et seq. of the Internal Revenue Code, 26 U.S.C.

§§ 401 et seq.; and

(e) A trust forming part of a qualified tuition program

pursuant to chapter 353B of NRS, any applicable

regulations adopted pursuant to chapter 353B of NRS and

section 529 of the Internal Revenue Code, 26 U.S.C. § 529,

unless the money is deposited after the entry of a judgment

against the purchaser or account owner or the money will

not be used by any beneficiary to attend a college or

university.

12. All money and other benefits paid pursuant to the

order of a court of competent jurisdiction for the support,

education and maintenance of a child, whether collected by

the judgment debtor or the State.

13. All money and other benefits paid pursuant to the

order of a court of competent jurisdiction for the support and

maintenance of a former spouse, including the amount of any

arrearages in the payment of such support and maintenance to

which the former spouse may be entitled.

14. A vehicle for use by you or your dependent which is

specially equipped or modified to provide mobility for a

person with a permanent disability.

15. A prosthesis or any equipment prescribed by a

physician or dentist for you or your dependent.

These exemptions may not apply in certain cases such as a

proceeding to enforce a judgment for support of a person or a

judgment of foreclosure on a mechanic’s lien. You should

consult an attorney immediately to assist you in determining

whether your property or money is exempt from execution. If

you cannot afford an attorney, you may be eligible for

assistance through ....................(name of organization in

county providing legal services to indigent or elderly

persons).

PROCEDURE FOR CLAIMING EXEMPT PROPERTY

If you believe that the money or property taken from you

is exempt, you must complete and file with the clerk of the

court a notarized affidavit claiming the exemption. A copy of

the affidavit must be served upon the sheriff and the judgment

creditor within 8 days after the notice of execution is mailed.

The property must be returned to you within 5 days after you

file the affidavit unless you or the judgment creditor files a

motion for a hearing to determine the issue of exemption. If

this happens, a hearing will be held to determine whether the

property or money is exempt. The motion for the hearing to

determine the issue of exemption must be filed within 10 days

after the affidavit claiming exemption is filed. The hearing to

determine whether the property or money is exempt must be

held within 10 days after the motion for the hearing is filed.

IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE

TIME SPECIFIED, YOUR PROPERTY MAY BE SOLD

AND THE MONEY GIVEN TO THE JUDGMENT

CREDITOR, EVEN IF THE PROPERTY OR MONEY IS

EXEMPT.

Sec. 2. NRS 21.090 is hereby amended to read as follows:

21.090 1. The following property is exempt from execution,

except as otherwise specifically provided in this section:

(a) Private libraries not to exceed $1,500 in value, and all family

pictures and keepsakes.

(b) Necessary household goods, as defined in 16 C.F.R. §

444.1(i) as that section existed on January 1, 1987, and yard

equipment, not to exceed $3,000 in value, belonging to the judgment

debtor to be selected by him.

supplies and seed not to exceed $4,500 in value, belonging to the

judgment debtor to be selected by him.

(d) Professional libraries, office equipment, office supplies and

the tools, instruments and materials used to carry on the trade of the

judgment debtor for the support of himself and his family not to

exceed $4,500 in value.

(e) The cabin or dwelling of a miner or prospector, his cars,

implements and appliances necessary for carrying on any mining

operations and his mining claim actually worked by him, not

exceeding $4,500 in total value.

(f) Except as otherwise provided in paragraph (o), one vehicle if

the judgment debtor’s equity does not exceed $4,500 or the creditor

is paid an amount equal to any excess above that equity.

(g) For any pay period, 75 percent of the disposable earnings of

a judgment debtor during that period, or for each week of the period

30 times the minimum hourly wage prescribed by section 6(a)(1) of

the federal Fair Labor Standards Act of 1938 , 29 U.S.C. §

206(a)(1), and in effect at the time the earnings are payable,

whichever is greater. Except as otherwise provided in paragraphs

(n), (r) and (s), the exemption provided in this paragraph does not

apply in the case of any order of a court of competent jurisdiction

for the support of any person, any order of a court of bankruptcy or

of any debt due for any state or federal tax. As used in this

paragraph, “disposable earnings” means that part of the earnings of

a judgment debtor remaining after the deduction from those earnings

of any amounts required by law, to be withheld.

(h) All fire engines, hooks and ladders, with the carts, trucks and

carriages, hose, buckets, implements and apparatus thereunto

appertaining, and all furniture and uniforms of any fire company or

department organized under the laws of this state.

(i) All arms, uniforms and accouterments required by law to be

kept by any person, and also one gun, to be selected by the debtor.

(j) All courthouses, jails, public offices and buildings, lots,

grounds and personal property, the fixtures, furniture, books, papers

and appurtenances belonging and pertaining to the courthouse, jail

and public offices belonging to any county of this state, all

cemeteries, public squares, parks and places, public buildings, town

halls, markets, buildings for the use of fire departments and military

organizations, and the lots and grounds thereto belonging and

appertaining, owned or held by any town or incorporated city, or

dedicated by the town or city to health, ornament or public use, or

for the use of any fire or military company organized under the laws

of this state and all lots, buildings and other school property owned

by a school district and devoted to public school purposes.

(k) All money, benefits, privileges or immunities accruing or in

any manner growing out of any life insurance, if the annual

premium paid does not exceed $1,000. If the premium exceeds that

amount, a similar exemption exists which bears the same proportion

to the money, benefits, privileges and immunities so accruing or

growing out of the insurance that the $1,000 bears to the whole

annual premium paid.

(l) The homestead as provided for by law, including a

homestead for which allodial title has been established and not

relinquished and for which a waiver executed pursuant to NRS

115.010 is not applicable.

(m) The dwelling of the judgment debtor occupied as a home for

himself and family, where the amount of equity held by the

judgment debtor in the home does not exceed $125,000 in value and

the dwelling is [situate] situated upon lands not owned by him.

(n) All property in this state of the judgment debtor where the

judgment is in favor of any state for failure to pay that state’s

income tax on benefits received from a pension or other retirement

plan.

(o) Any vehicle owned by the judgment debtor for use by him or

his dependent that is equipped or modified to provide mobility for a

person with a permanent disability.

(p) Any prosthesis or equipment prescribed by a physician or

dentist for the judgment debtor or a dependent of the debtor.

(q) Money, not to exceed $500,000 in present value, held in:

(1) An individual retirement arrangement which conforms

with the applicable limitations and requirements of 26 U.S.C. § 408;

(2) A written simplified employee pension plan which

conforms with the applicable limitations and requirements of 26

U.S.C. § 408;

(3) A cash or deferred arrangement which is a qualified plan

pursuant to the Internal Revenue Code; [and]

(4) A trust forming part of a stock bonus, pension or profit-

sharing plan which is a qualified plan pursuant to sections 401 et

seq. of the Internal Revenue Code , [(]26 U.S.C. §§ 401 et seq.[).] ;

and

(5) A trust forming part of a qualified tuition program

pursuant to chapter 353B of NRS, any applicable regulations

adopted pursuant to chapter 353B of NRS and section 529 of the

Internal Revenue Code, 26 U.S.C. § 529, unless the money is

deposited after the entry of a judgment against the purchaser or

account owner or the money will not be used by any beneficiary to

attend a college or university.

(r) All money and other benefits paid pursuant to the order of a

court of competent jurisdiction for the support, education and

maintenance of a child, whether collected by the judgment debtor or

the State.

(s) All money and other benefits paid pursuant to the order of a

court of competent jurisdiction for the support and maintenance of a

former spouse, including the amount of any arrearages in the

payment of such support and maintenance to which the former

spouse may be entitled.

2. Except as otherwise provided in NRS 115.010, no article or

species of property mentioned in this section is exempt from

execution issued upon a judgment to recover for its price, or upon a

judgment of foreclosure of a mortgage or other lien thereon.

3. Any exemptions specified in subsection (d) of section 522 of

the Bankruptcy Act of 1978 [(92 Stat. 2586)] , 11 U.S.C. § 522(d),

do not apply to property owned by a resident of this state unless

conferred also by subsection 1, as limited by subsection 2 . [, of this

section.]

Sec. 3. NRS 31.045 is hereby amended to read as follows:

31.045 1. Execution on the writ of attachment by attaching

property of the defendant may occur only if:

(a) The judgment creditor serves the defendant with notice of

the execution when the notice of the hearing is served pursuant to

NRS 31.013; or

(b) Pursuant to an ex parte hearing, the sheriff serves upon the

judgment debtor notice of the execution and a copy of the writ at

the same time and in the same manner as set forth in

NRS 21.076.

If the attachment occurs pursuant to an ex parte hearing, the clerk of

the court shall attach the notice to the writ of attachment at the time

the writ is issued.

2. The notice required pursuant to subsection 1 must be

substantially in the following form:

NOTICE OF EXECUTION

YOUR PROPERTY IS BEING ATTACHED OR

YOUR WAGES ARE BEING GARNISHED

Plaintiff, .................... (name of person), alleges that you

owe him money. He has begun the procedure to collect that

money. To secure satisfaction of judgment the court has

ordered the garnishment of your wages, bank account or other

personal property held by third persons or the taking of

money or other property in your possession.

Certain benefits and property owned by you may be

exempt from execution and may not be taken from you. The

following is a partial list of exemptions:

1. Payments received under the Social Security Act.

2. Payments for benefits or the return of contributions

under the Public Employees’ Retirement System.

3. Payments for public assistance granted through the

Welfare Division of the Department of Human Resources.

4. Proceeds from a policy of life insurance.

5. Payments of benefits under a program of industrial

insurance.

6. Payments received as unemployment compensation.

7. Veteran’s benefits.

8. A homestead in a dwelling or a mobile home, not to

exceed $125,000, unless:

(a) The judgment is for a medical bill, in which case all of

the primary dwelling, including a mobile or manufactured

home, may be exempt.

(b) Allodial title has been established and not relinquished

for the dwelling or mobile home, in which case all of the

dwelling or mobile home and its appurtenances are exempt,

including the land on which they are located, unless a valid

waiver executed pursuant to NRS 115.010 is applicable to the

judgment.

9. A vehicle, if your equity in the vehicle is less than

$4,500.

10. Seventy-five percent of the take-home pay for any

pay period, unless the weekly take-home pay is less than 30

times the federal minimum wage, in which case the entire

amount may be exempt.

11. Money, not to exceed $500,000 in present value,

held [for retirement pursuant to certain arrangements or plans

meeting the requirements for qualified arrangements or plans

of sections 401 et seq. of the Internal Revenue Code (26

U.S.C. §§ 401 et seq.).] in:

(a) An individual retirement arrangement which

conforms with the applicable limitations and requirements

of 26 U.S.C. § 408;

(b) A written simplified employee pension plan which

conforms with the applicable limitations and requirements

of 26 U.S.C. § 408;

plan pursuant to the Internal Revenue Code;

(d) A trust forming part of a stock bonus, pension or

profit-sharing plan that is a qualified plan pursuant to

sections 401 et seq. of the Internal Revenue Code, 26 U.S.C.

§§ 401 et seq.; and

(e) A trust forming part of a qualified tuition program

pursuant to chapter 353B of NRS, any applicable

regulations adopted pursuant to chapter 353B of NRS and

section 529 of the Internal Revenue Code, 26 U.S.C. § 529,

unless the money is deposited after the entry of a judgment

against the purchaser or account owner or the money will

not be used by any beneficiary to attend a college or

university.

12. All money and other benefits paid pursuant to the

order of a court of competent jurisdiction for the support,

education and maintenance of a child, whether collected by

the judgment debtor or the State.

13. All money and other benefits paid pursuant to the

order of a court of competent jurisdiction for the support and

maintenance of a former spouse, including the amount of any

arrearages in the payment of such support and maintenance to

which the former spouse may be entitled.

14. A vehicle for use by you or your dependent which is

specially equipped or modified to provide mobility for a

person with a permanent disability.

15. A prosthesis or any equipment prescribed by a

physician or dentist for you or your dependent.

These exemptions may not apply in certain cases such as

proceedings to enforce a judgment for support of a child or a

judgment of foreclosure on a mechanic’s lien. You should

consult an attorney immediately to assist you in determining

whether your property or money is exempt from execution. If

you cannot afford an attorney, you may be eligible for

assistance through .................... (name of organization in

county providing legal services to the indigent or elderly

persons).

PROCEDURE FOR CLAIMING EXEMPT PROPERTY

If you believe that the money or property taken from you

is exempt or necessary for the support of you or your family,

you must file with the clerk of the court on a form provided

by the clerk a notarized affidavit claiming the exemption. A

copy of the affidavit must be served upon the sheriff and the

judgment creditor within 8 days after the notice of execution

is mailed. The property must be returned to you within 5 days

after you file the affidavit unless the judgment creditor files a

motion for a hearing to determine the issue of exemption. If

this happens, a hearing will be held to determine whether the

property or money is exempt. The hearing must be held

within 10 days after the motion for a hearing is filed.

IF YOU DO NOT FILE THE AFFIDAVIT WITHIN THE

TIME SPECIFIED, YOUR PROPERTY MAY BE SOLD

AND THE MONEY GIVEN TO THE JUDGMENT

CREDITOR, EVEN IF THE PROPERTY OR MONEY IS

EXEMPT.

If you received this notice with a notice of a hearing for

attachment and you believe that the money or property which

would be taken from you by a writ of attachment is exempt or

necessary for the support of you or your family, you are

entitled to describe to the court at the hearing why you

believe your property is exempt. You may also file a motion

with the court for a discharge of the writ of attachment. You

may make that motion any time before trial. A hearing will be

held on that motion.

IF YOU DO NOT FILE THE MOTION BEFORE THE

TRIAL, YOUR PROPERTY MAY BE SOLD AND

THE MONEY GIVEN TO THE PLAINTIFF, EVEN IF THE

PROPERTY OR MONEY IS EXEMPT OR NECESSARY

FOR THE SUPPORT OF YOU OR YOUR FAMILY.

Sec. 4. This act becomes effective upon passage and approval.

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