Once a judgment has been taken, a creditor may take any legal means to collect the debt. This can include wage garnishment, bank account or personal property attachment or taking a judgment lien against property.

Notice of a hearing on a bank attachment must be given to the debtor at least seven (7) business days before the hearing. The notice must include the debtor’s right to a hearing and a request for hearing form. A hearing is automatically scheduled but will be canceled if the debtor fails to request the hearing in writing within five (5) business days after receiving the notice.

The debtor and the bank receive notice of the intended attachment at the same time. A freeze is put on the funds in the account. The bank must decide if the creditor has the right to receive funds from the bank account and make a report to the court.

At the hearing the issues are limited to a defense or claim of exemption. The debtor has the burden to prove the claim of exemption or other defense. If the funds in the account are ‘exempt’ from attachment, the debtor must make that known to the court at the hearing. Examples of exempt funds are cash assistance under Ohio Works First, unemployment compensation, Disability Assistance (DFA), funds received under the Child Tax Credit or Earned Income Tax Credit, Social Security retirement and disability income and SSI, and Veterans benefits.

Exempt funds retain their exemption after being deposited in a bank account. However, the funds must be identifiable. If there are both exempt and non-exempt funds (such as wages) in an account, you will need to show which portion is exempt from attachment.

On the day of the hearing, bring proof of where the money in the account came from. You should have:

1.) an award letter showing the source of the funds

2.) deposit slips, receipts, or bank statements showing the exempt funds were deposited

3.) proof of the amount of exempt funds in the account at the time of attachment. If the balance in the attached account is more than the amount of your usual check, you will need to tell the court the source of the ‘extra’ money in the account. If you don’t have proof in writing, you will have to rely on your sworn testimony and hope that it will be enough for the court to release the money.

If you need the money immediately, you can try calling the attorney who represents the creditor to ask to have the funds released because they are exempt. If the attorney says the account will be released, ask for written confirmation. Call your bank a couple of days later to be sure the money has been released. Your bank will give written notice that your account has been credited for the amount that was frozen. If you are sure the money has been released, you do not need to go to court on the day of the hearing.

 

This article is meant to give you general information and not to give you specific legal advice.
Prepared by Community Legal Aid Services, Inc. Updated February, 2012. CE-02-F009-CLAS