Ark. Code Ann. § 16-66-211 (2020)
Claiming exemptions — Schedule of property — Stay of execution — Levy on remainder of property — Appeal
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- Whenever any resident of this state, upon the issue against him or her for the collection of any debt by contract of any execution or other process, of any attachment except specific attachment against his or her property, desires to claim any of the exemptions provided for by law, he or she shall prepare a schedule, verified by affidavit, of all his or her property. This schedule shall include moneys, rights, credits, and choses in action held by himself or herself or others for him or her and specifying the particular property which he or she claims as exempt under the provisions of the Arkansas Constitution, Article 9.
- After giving five (5) days' notice in writing to the opposing party or his or her agent or attornery, the resident claiming the exemption shall file the schedule with the judge or clerk issuing the execution or other process or attachment.
- A hearing shall be ordered by the court or judge issuing the process if, within five (5) days after receiving the notice required to be given by the person claiming the exemption, the party in whose favor the process issued files a request for a hearing with the judge or clerk of the court.
- If after the hearing, either in open court or by the judge in vacation, the claim of exemption is determined to be valid, then supersedeas shall issue, staying any sale or further proceeding under the execution, process, or attachment against the property described in the schedule, and claimed as exempted, and by returning the property to the defendant.
- No alias execution shall be levied on property relieved from process by claim of exemption until one (1) year from the date of the filing of the schedule of exemptions.
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- If the debtor has other property than that claimed in any former schedule, the officer shall levy upon that other property.
- If the debtor desires to claim further exemptions, he shall include all his property in any schedule therefor.
- If in any such schedule it appears that the debtor has more property in value than is exempt by law, he or she shall select his or her exemptions. The remainder of the property shall be subject to the levy of the execution, whether the property is included in any former schedule or not.
- An appeal may be taken to the circuit court from any order of judgment rendered by a justice of the peace upon the filing of the affidavit and upon executing the bond required in other cases of appeal.
History. Acts 1871, No. 58, § 1, p. 285; 1877, No. 53, § 1, p. 53; 1891, No. 3, § 1, p. 2; C. & M. Dig., §§ 5549-5551; Pope's Dig., §§ 7188-7190; Acts 1953, No. 164, § 2, p. 555; 1981, No. 714, § 1; A.S.A. 1947, § 30-209.
A.C.R.C. Notes. Acts 1991, No. 389, § 4, provided:
“All portions of Arkansas Code of 1987 Annotated § 16-66-211 pertaining to claiming exemptions in actions involving Writs of Execution are hereby repealed to the extent that the provision is inconsistent with the provisions of this act. All laws and parts of laws in conflict with this act are hereby repealed.”
Research References
Ark. L. Rev.
Laurence, An Odd Collection of Topics Relating to Creditors' Remedies Upon Which Various Federal Courts Have Recently Spoken — Rule 69, Rule 13, Federal Tax Liens and the Due Process Rights of Creditors, 37 Ark. L. Rev. 875.
U. Ark. Little Rock L.J.
Survey of Arkansas Law: Business Law, 4 U. Ark. Little Rock L.J. 161.
Notes, Garnishment Procedures Must Provide For Notice to Postjudgment Debtor, etc., 9 U. Ark. Little Rock L.J. 517.
Case Notes
Constitutionality.
Because the statutes pertaining to postjudgment garnishment, this section, §§ 16-66-208 and 16-110-401, do not require notice to the judgment debtor informing him of the garnishment, notice of possible state and federal exemptions, a prompt hearing to permit the judgment debtor to claim exemptions, an affidavit from the creditor stating that the writ would not cause the attachment of exempt funds, or the posting of a bond to compensate the judgment debtor for injury in case of wrongful garnishment, these sections do not contain sufficient procedural safeguards designed to prevent erroneous seizures to satisfy due process and are unconstitutional as violative of the due process clause of the Fourteenth Amendment of the United States Constitution. Davis v. Paschall, 640 F. Supp. 198 (E.D. Ark. 1986).
Postjudgment exemption laws adequately provide for procedures and hearings by which a judgment debtor may exercise his or her rights to exemption claims or the return of levied property. It is the lack of a requirement of notice to the judgment debtor, however, that makes statutory provisions such as §§ 16-66-211 and 16-66-401 constitutionally deficient. Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990).
Service on garnishee was invalid due to the invalidity of this section on which it was based, and the constitutional deficiency was not supplied by actual notice to garnishee of items constitutionally required. Gravett v. Marks, 304 Ark. 549, 803 S.W.2d 551 (1991).
In General.
Exemption is not allowed unless claimed as provided. Scanlan v. Guiling, 63 Ark. 540, 39 S.W. 713 (1897).
The method provided by this section is exclusive of all others. Baxley v. Laster, 82 Ark. 236, 101 S.W. 755 (1907).
Every citizen of this state is entitled to exemptions, but in order to get his property exempt he must comply with the law. Griffin v. Puryear-Meyer Grocer Co., 202 Ark. 495, 151 S.W.2d 656 (1941).
To be allowable, exemptions must be claimed in manner provided. Jennings v. Tankersley Bros. Packing Co., 218 Ark. 776, 238 S.W.2d 625 (1951).
Contempt.
There was no err in holding appellants in contempt for failing to comply with this section, because the court was not dependent upon affidavits or verified petitions, appellants were served with a copy of the contempt petition, appellants were represented by counsel and had an opportunity to defend at the hearing on the petition for contempt; the court had ordered appellants to file their schedules of assets with the court clerk within forty-five days from the date of the judgments, and the court was not dependent upon affidavits or verified petitions since all the court had to do was examine the court clerk's files and see that the schedules had not been filed within forty-five days to establish a prima facie case of contempt. P. J. Transp., Inc. v. First Serv. Bank, 2012 Ark. App. 292 (2012).
Exemptions.
The articles claimed as exempt must be specified. Friedman v. Sullivan, 48 Ark. 213, 2 S.W. 785 (1886).
A debtor cannot claim his exemptions out of the proceeds of attached property when he has had an opportunity to schedule the specific property. Surratt v. Young, 55 Ark. 447, 18 S.W. 539 (1892).
Where Bulk Sales Law was not complied with, rights of seller's creditors could not be defeated on ground that seller was entitled to exemption when value of property sold, together with all other personal property owned by him, was less than his statutory exemption. Griffin v. Puryear-Meyer Grocer Co., 202 Ark. 495, 151 S.W.2d 656 (1941).
Hearing.
Dismissal of proceedings claiming certain property as exempt from seizure did not preclude a subsequent action to have exemptions set apart. Taylor v. Tomlinson, 65 Ark. 232, 45 S.W. 544 (1898).
Noncompliance.
A debtor who neglects to claim his exemptions as provided by this section waives his right to exemption. Andrews v. Briggs, 203 Ark. 714, 158 S.W.2d 269 (1942).
A judgment creditor was not prejudiced by a finding that the debtor's homestead was exempt from any levy under an earlier judgment even though the debtor failed to follow the proper procedures in claiming the exemption. Ross v. White, 15 Ark. App. 98, 689 S.W.2d 588 (1985).
Defendant's motion for the return of personal property that was seized in response to plaintiff's writ of execution and to claim statutory exemptions was denied because defendant had not filed with the court a schedule, verified by affidavit, setting forth all of his property as required by this section, which Fed. R. Civ. P. 69(a) made applicable to the proceeding, and as to defendant's claim of statutory exemptions under 11 U.S.C.S. § 522(d), defendant failed to offer any evidence that he had filed for bankruptcy, and defendant had not followed the procedures set forth in 11 U.S.C.S. § 521 for filing a schedule of assets. Chanel, Inc. v. Adamson, No. 07-mc-00028, 2008 U.S. Dist. LEXIS 9292 (W.D. Ark. Jan. 29, 2008).
Notice.
An appearance contesting the right to schedule is a waiver of the five days' notice. Garrett Bros. v. Wade, 46 Ark. 493 (1885); Brown v. Doneghey, 46 Ark. 497 (1885).
Notice to judgment debtor, to be constitutional, need not supply the judgment debtor with a “laundry list” of statutory or constitutional exemptions or inform him of all available exemptions. Such notice need only inform the debtor that postjudgment execution is being levied and that state and federal exemptions may be available with respect to the property subject to the levy. Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990).
Actual notice is insufficient where a notice statute is constitutionally insufficient. Gravett v. Marks, 304 Ark. 549, 803 S.W.2d 551 (1991).
Proof.
A judgment debtor who was allowed his rural exemption and who sought to enlarge his exemption had the burden of showing his right thereto. Hatcher v. Wasson, 191 Ark. 765, 87 S.W.2d 578 (1935).
A debtor claiming property to be exempt from execution is required to make a schedule of all his property, specifying the particular property claimed as exempt, and file the same with the officer after giving five days' notice in writing to the opposite party; if he would claim exemption for any of the property, he must bring himself and his property within the exceptions of some section by proper proof. Griffin v. Puryear-Meyer Grocer Co., 202 Ark. 495, 151 S.W.2d 656 (1941).
Once the debtor's right to the homestead exemption is at issue, the burden of proof is on the one claiming the exemption. In re Pate, 95 B.R. 102 (Bankr. W.D. Ark. 1988).
Schedule.
The schedule is amendable, on appeal in circuit court. May v. Hutson, 54 Ark. 226, 15 S.W. 606 (1891).
Schedule should be filed with justice when process from which property is claimed exempt is issued by him. Taylor v. Tomlinson, 65 Ark. 232, 45 S.W. 544 (1898).
An intentional failure to make a full disclosure of all personal property authorizes a disallowance of the claim. Farris v. Gross, 75 Ark. 391, 87 S.W. 633 (1905).
One who claims that his property is exempt from sale must file a written schedule with the justice of the peace who issued the execution before the sale, and mere notice that he intends to claim exemption does not satisfy the statute. Andrews v. Briggs, 203 Ark. 714, 158 S.W.2d 269 (1942).
Rule that one claiming exemption from sale must file written schedule with the justice who issued the execution prior to the sale is relaxed if unavoidable casualty intervenes. Andrews v. Briggs, 203 Ark. 714, 158 S.W.2d 269 (1942).
Defendant debtor is entitled to amend his schedule of exemption to show actual assets held by him. Williams v. Swann, 220 Ark. 906, 251 S.W.2d 111 (1952).
—Sufficiency of Schedule.
Schedule found sufficient. Huffman v. Thompson, 64 Ark. 196, 41 S.W. 428 (1897).
Schedule found insufficient. Cain v. Chennault, 195 Ark. 141, 110 S.W.2d 1063 (1937).
Supersedeas.
The debtor must see that supersedeas is issued, or he will have waived his right thereto; and if judgment is adverse, he must prosecute an appeal. Cason v. Bone, 43 Ark. 17 (1884); Chambers v. Perry, 47 Ark. 400, 1 S.W. 700 (1886).
A justice of the peace has no power to revoke a supersedeas. Cox v. Lee, 50 Ark. 456, 8 S.W. 400 (1887).
Cited: Duraclean Co. v. Foltz, 240 Ark. 38, 397 S.W.2d 804 (1966); Winkle v. Grand Nat'l Bank, 267 Ark. 101, 590 S.W.2d 852 (1979); Stephens v. Walker, 743 F. Supp. 670 (W.D. Ark. 1990).