June 8 2010
DA 10-0002
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 131
BANK OF AMERICA,
Plaintiff and Appellee,
v.
MARY JO IVEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and For the County of Silver Bow, Cause No. DV 2008-445
Honorable Brad Newman, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
D. Michael Eakin, Chuck Munson, Montana Legal Services Association,
Billings, Montana
For Appellee:
Eeva Greenley, Johnson, Rodenburg & Lauinger, Fargo, North Dakota
Submitted on Briefs: May 25, 2010
Decided: June 8, 2010
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 This is an appeal from the order of the Second Judicial District Court, Silver Bow
County, holding that Mary Jo Ivey’s personal checking account is not exempt from
execution under § 25-13-609(1), MCA. We affirm.
¶2 Mary Jo is a disabled resident of Butte, Montana. She currently lives solely off
Social Security Disability Insurance (SSDI) benefits that total $691.00 per month plus
Supplemental Security Income (SSI) benefits that total $4.00 per month. In June 2008,
when the events at issue here occurred, Mary Jo was living off SSDI benefits totaling
$653.00 per month.
¶3 On June 6, 2008, Mary Jo received a rebate under the Economic Stimulus Act of
2008 in the form of a $300.00 electronic deposit to her personal checking account with
U.S. Bank. At this time, Bank of America held a default judgment against Mary Jo
(obtained two years earlier in a collection action) in the amount of $3,036.95. On June 9,
2008, Bank of America executed upon and seized all of the funds in Mary Jo’s checking
account which, after the deduction of a $75.00 execution fee, consisted of $454.38. That
same day, three previously written checks and a Visa CheckCard purchase were posted to
Mary Jo’s account, resulting in four $35.00 overdraft charges. Mary Jo became aware of
the execution the following day (June 10) through a coincidental online balance inquiry
and a call to the bank. She thereafter was served with a Notice of Execution Levy dated
June 26, 2008.
¶4 Mary Jo objected to the seizure of her funds and requested a hearing in Silver Bow
County Justice Court (where the original default judgment had been entered). Bank of
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America ultimately acknowledged that her social security benefits were exempt from
execution pursuant to § 25-13-608(1)(b), MCA, and it therefore agreed to return $154.38
to Mary Jo. That left in dispute her $300.00 economic stimulus rebate and the $75.00
execution fee. Mary Jo argued that the $75.00 fee came out of her social security benefits
and, thus, should be returned with the other $154.38. As for the $300.00 rebate, Mary Jo
argued that a “household bank account” is a “household good” under § 25-13-609(1),
MCA, and, as such, is exempt from execution up to $600.00. (Under this theory, the
entire $529.38 in her account at the moment of execution would be exempt.) In addition,
she argued that the Notice of Execution Levy was untimely and that executing on her
economic stimulus money violated the Supremacy Clause of the United States
Constitution. The Justice Court disagreed with all three arguments and denied her claim
for exemption.
¶5 Mary Jo then appealed to the District Court, raising the same three grounds. That
court concluded as follows: Mary Jo’s checking account is not a household good exempt
from execution under § 25-13-609(1), MCA; while the Notice of Execution Levy was
untimely under § 25-13-211(1), MCA, Mary Jo had not been prejudiced as a result; and
Mary Jo had not established how Montana’s execution statute thwarts the purpose and
objectives of the Economic Stimulus Act of 2008.
¶6 Mary Jo now appeals to this Court, raising the single issue of whether a personal
checking account used to pay household expenses is a “household good” protected up to
$600.00 by § 25-13-609(1), MCA. This statute states that a judgment debtor is entitled to
exemption from execution of
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the judgment debtor’s interest, not to exceed $4,500 in aggregate value, to
the extent of a value not exceeding $600 in any item of property, in
household furnishings and goods, appliances, jewelry, wearing apparel,
books, firearms and other sporting goods, animals, feed, crops, and musical
instruments. [Emphases added.]
As noted, the District Court disagreed with the proposition that a personal checking
account is a “household good.” The court reasoned that while the statute lists many
specific items, it does not list accounts or moneys. Conversely, the statute listing what
property is subject to execution includes “moneys.” See § 25-13-501, MCA (“All goods,
chattels, moneys, and other property, both real and personal, or any interest therein of the
judgment debtor, not exempt by law, and all property and rights of property seized and
held under attachment in the action are liable to execution. . . .” (emphasis added)).
¶7 Of course, Mary Jo points out that § 25-13-501, MCA, refers to “moneys . . . not
exempt by law,” which thus brings us back to the exemption statutes and the question of
whether “moneys” held in a personal checking account are exempt from execution as a
“household good” under § 25-13-609(1), MCA. Mary Jo offers a number of reasons why
she believes her checking account—which she says contains the funds she uses to
purchase household furnishings and goods, appliances, wearing apparel, and books—
should itself be considered a “household good.” However, we are not persuaded by her
arguments that the Legislature intended with the language “household furnishings and
goods, appliances, jewelry, wearing apparel, books, firearms and other sporting goods,
animals, feed, crops, and musical instruments” to include—by implication—the personal
checking account containing the moneys with which such items might be purchased.
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¶8 Mary Jo notes a number of policy considerations for why her checking account
should be exempt from execution. She contends that as a result of Bank of America’s
actions here, she was left destitute, exposed to overdraft charges and mounting debt, and
having to borrow money from acquaintances just to buy food. She points out that the
exemption laws were enacted to preclude this sort of result; that such laws were intended
to shield the poor, Ferguson v. Speith, 13 Mont. 487, 496, 34 P. 1020, 1022-23 (1893),
and to prevent the debtor and his or her dependents from becoming public charges, Hitt v.
Glass, 164 B.R. 759, 764 (Bankr. App. 9th Cir. 1994); and that courts are therefore to
construe exemption statutes liberally, In re Archer, 2006 MT 82, ¶ 15, 332 Mont. 1, 136
P.3d 563. Mary Jo argues that a low-income debtor such as herself should have the funds
which are used for household purchases protected from seizure up to $600.00.
¶9 In response, Bank of America curtly dismisses these arguments as “inapposite,
especially in the context of a one-time economic stimulus payment.” Bank of America
brazenly characterizes Mary Jo’s $300.00 economic stimulus payment as a “windfall”
and suggests that the seizure of this money did not harm her or leave her destitute
because “it is not part of her social security benefits nor is it regularly relied-upon
income.” These contemptuous remarks, however, are utterly unavailing in light of the
fact that Bank of America abruptly seized every last cent in Mary Jo’s account, including
exempt social security benefits (which were not returned until after a hearing in Justice
Court roughly eight weeks later), thus leaving her with a negative balance once the three
previously written checks, the CheckCard purchase, and the four overdraft charges were
posted to her account. They also suggest total indifference to Mary Jo’s predicament
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following the seizure. In this regard, Mary Jo points out that as a result of its own dire
predicament in 2008 (the same year it seized her $300.00 economic stimulus rebate),
Bank of America received billions of dollars in bailout money from the federal
government. But more to the point, Bank of America evidently fails to appreciate that
exemption laws were indeed designed to shield the poor, not to strip them. Ferguson, 13
Mont. at 496, 34 P. at 1022-23.
¶10 The fundamental problem with Mary Jo’s position is not that it necessarily lacks
merit or is “inapposite,” but that it is being made to the wrong branch of government.
While exemption statutes are to be construed liberally, such construction may not
disregard plain legislative mandate. Archer, ¶ 15. Here, “household checking account”
is not contained in the list in § 25-13-609(1), MCA, and we are not persuaded that the
Legislature intended the term “goods” to encompass “moneys” that are contained in a
“household checking account.” Thus, Mary Jo’s policy arguments need to be made to the
Legislature, since it is not this Court’s prerogative to rewrite the statute in the manner she
proposes. See § 1-2-101, MCA (“In the construction of a statute, the office of the judge
is simply to ascertain and declare what is in terms or in substance contained therein, not
to insert what has been omitted or to omit what has been inserted.”).
¶11 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS
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