Sec. 09.38.075. Special procedures relating to limited value exemptions; burden of proof.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)Unless a creditor is seeking collection of a claim enforceable against exempt property under AS 09.38.065 , the creditor may obtain a levy on an individual's property of a kind listed in AS 09.38.020 only by complying with this section. Before levy, the creditor shall file with the court out of which the process issues

(1)an affidavit stating that the creditor has reason to believe the individual has property of a kind listed in AS 09.38.020 that is not exempt, identifying the property, setting out facts constituting the basis for believing the property is not exempt; and

(2)a request for an order by the court notifying the individual

(A)of the creditor's claim of a right to levy on the property identified as nonexempt;

(B)of the individual's right to contest the creditor's claim of a right to levy by filing with the clerk of the court, on or before a date fixed by the court, but not exceeding 15 days after the issuance of the order, a written objection to the proposed levy and a statement of the grounds for the objection and of the right to describe the property in lieu of setting its value;

(C)of the possible consequences of failure to respond to the notice as provided in

(c)of this section; and

(D)of the information required by AS 09.38.085 (a).

(b)Notice of an order issued in accordance with a request under

(a)of this section, together with the creditor's affidavit, shall be served on the individual. The order shall restrain the individual from removing, encumbering, damaging, or disposing of any property of the kind listed in AS 09.38.020 for 30 days after receipt of the order, unless the court reduces, extends, or otherwise modifies the restraining order during the 30-day period.

(c)If exemption of property identified in a notice served on an individual under

(b)of this section depends on its value, the individual may describe the property in the responsive statement and indicate the amount of any indebtedness chargeable against it. If the individual, within the time allowed by the order of the court, fails to respond to a notice served under

(b)of this section that the creditor believes the debtor has nonexempt property of a kind listed under AS 09.38.020 , the court may order the individual to appear and disclose the description, location, and value of the individual's property. If the individual fails to appear and disclose the information specified in the order, the individual waives objection to the creditor's levy on property of that kind.

(d)Except to the extent the procedure is prescribed by this section, AS 09.38.080

(e)governs a proceeding for the determination of a contest in respect to a claim to exemption of property under AS 09.38.020 .

(e)Costs incurred in making, or proposing to make, a levy on property of a kind listed in AS 09.38.020 shall be paid out of the proceeds of a sale of property of that kind. If the proceeds of a sale of the property are insufficient to cover the costs incurred in proceedings commenced under this section, the creditor shall pay the costs and may not recover them from the individual, notwithstanding any agreement of the parties to the contrary.

(f)The burden of proving the validity of an exemption by a preponderance of the evidence is upon the individual claiming the exemption.