Creditor May Enforce Debtor’s Written Waiver Of Exemptions

An attorney called me for help collecting several judgments against the same individual debtor. The debtor’s principal asset was his retirement account. Retirement accounts are exempt in Florida pursuant to Florida statutes. The attorney wanted to know if a the debtor’s signature to loan documents which included a general waiver of exemptions from judgment execution was enforceable to the extent that the attorney could garnish this debtor’s retirement account.

Exemption waivers are enforceable as long as the debtor knowingly and voluntarily signs a waiver for valid consideration. Therefore, this attorney should garnish the financial institution where the debtor maintains retirement accounts. The debtor will probably claim that his accounts are exempt under Florida statute 222.21. The attorney should be able to defeat the claim of exemption because of the waiver.

There are some exceptions to the valid waiver of exemptions from execution. Florida courts have held that a debtor may not waive homestead protection from forced sale to collect a judgment. Next, waivers of a debtor’s exemption from wage garnishment must be very conspicuous in the applicable document and follow the language set forth in Florida Statute 222.11 (2)(b). Finally, waivers of exemptions are not enforceable in bankruptcy court because the Bankruptcy Code does not recognize a debtor’s prior waiver of bankruptcy exemptions.

About the Author

Gideon Alper specializes in asset protection planning for individuals and their families.

Gideon Alper

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