Section 2.10 Protection and Enforcement of Exemption Rights

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

4. (§2.10) Protection and Enforcement of Exemption Rights

It is the officer's duty before levying the execution to apprise the judgment debtor of the property exempt under §§ 513.430 and 513.440, RSMo Supp. 2008, and of the judgment debtor's right to hold the property exempt from execution. The officer must advise the judgment debtor of these rights in some clear and explicit manner, and although the officer is not required to do so in writing, service of written notice would be the most effective way of discharging this duty. The officer's failure to apprise the judgment debtor of the exemption rights does not invalidate an execution sale. Daugherty v. Gangloff, 144 S.W. 434 (Mo. 1911).

The officer's duty to notify the judgment debtor of the exemption rights is mandatory, and failure to advise of those rights will require a levy to be quashed when the levy has been made on property that could be held as exempt. Smith v. Waterson, 34 S.W.2d 544 (Mo. App. S.D. 1931). When the officer fails to advise the judgment debtor of the exemption rights or proceeds to sell notwithstanding the judgment debtor's selection of property to be held exempt, the officer is liable on the officer's bond for breach of the mandatory duty imposed on the officer by law. Dancer v. Chenault, 527 S.W.2d 714 (Mo. App. W.D. 1975); Parketon v. Pugsley, 121 S.W. 789, 791 (Mo. App. E.D. 1909).

Furthermore, Rule 76.075 requires that the officer who levies on execution must notify the debtor within 3 days of the levy that the debtor has certain exemption rights under §§ 513.430 and 513.440 and that the debtor may elect to exempt certain property. The judgment debtor may claim an exemption by filing a verified...