Opinion
No. CV94-0047296
May 28, 2003
MEMORANDUM OF DECISION
The issue before the court is whether a judgment debtor may claim the statutory one thousand dollar exemption from execution when she has failed to follow the statutory procedure for claiming such an exemption.
On August 11, 1994, the plaintiff in this matter obtained a judgment as to the defendant Jennifer Bender in the amount of $5,370.44. On March 31, 2003, the plaintiff applied for and received from the clerk a bank execution against Bender. The plaintiff claimed that $5,152.44 of the judgment remained unpaid.
The bank execution was served on Webster Bank, a bank at which Bender had an account. The account contained $918.16. On April 11, 2003, Webster Bank mailed copies of the execution and exemption claim form to Bender's last known address at 96 Branca Court, Milford, CT. Unfortunately, Bender had moved from her Branca Court address in February 2003. On April 11th, she was living at 136 Hill Street, Milford, CT. She had not notified the bank of her new address and she had not filed a change of address form with the post office so that her mail could be forwarded to her.
The defendant did receive actual notice of the service of the bank execution on Webster Bank at the beginning of April 2003. At that time, while at Webster Bank, she was informed that her account had been charged a thirty dollar service fee due to the service of the bank execution. She was told by employees of the bank that she would be getting notice of the bank execution in the mail. The defendant did not receive the bank execution and exemption claim form until April 26, 2003. The forms were given to the defendant at that time by her mother-in-law who still lived at 96 Branca Court, Milford, CT.
In the meantime, the defendant consulted with an attorney concerning the bank execution on April 22, 2003. According to her testimony, she was given an exemption claim form for a property execution and erroneously told to file this form with the clerk's office. She did so on April 23, 2003.
Because the defendant never filed an exemption claim form with the bank as required by statute, the bank released the money in her account to the serving officer for payment to the plaintiff.
The defendant argues that she should be entitled to claim the one thousand dollar statutory exemption provided by General Statutes § 52-352b (r). She acknowledges that she failed to follow the procedure established in General Statutes § 52-367b for claiming the exemption but she argues that this court should not exalt form over substance. The plaintiff asserts that the defendant may not claim the statutory exemption because she failed to follow the statutory procedure. Under the circumstances of this case, I agree with the plaintiff that the defendant's failure to follow the statutory procedure for claiming the exemption is fatal to her claim.
It is undisputed that the defendant failed to comply with the procedures set forth in General Statutes § 52-367b for asserting a claim for an exemption. The statute provides that the "judgment debtor shall give notice of a claim of exemption by delivering to the banking institution, by mail or other means, the exemption claim form or other written notice that an exemption is being claimed." General Statutes § 52-367b (e). Instead of providing notice of her intent to claim an exemption to the bank, the defendant filed an exemption claim with the court. As a result, Webster Bank, having no notice of the defendant's exemption claim, paid the serving officer the funds in the defendant's bank account as it was required to do by statute. See General Statutes § 52-367b (h).
Moreover, the defendant is unable to rightly argue that her failure to follow the statutory procedure was through no fault of her own. She did not get a copy of the exemption claim form sent by the bank because she did not notify the bank of her new address when she moved in February. She compounded this error by failing to have her mail forwarded by the post office to her new address.
She also failed to take appropriate steps to claim an exemption upon receiving actual notice from the bank that a bank execution had been served upon it. Even after being told by the bank to expect further information regarding the bank execution through the mail, the defendant failed to take timely steps to receive her mail from her mother-in-law who continued to reside at the defendant's former address. These series of inactions by the defendant mute any claim that equity demands that she be relieved of her obligation to comply with the statutory procedure for asserting an exemption.
Accordingly, the defendant's request for an exemption is denied.
BY THE COURT
Judge Jon M. Alander