Tag: Judgment

Debtor’s (Non-Spousal) Inherited IRA Not Exempt from Civil Judgment – IL First District Rules

Case: In re Marriage of Xenakis, 2015 IL App (1st) 141297

Fact Snapshot: The judgment debtor successfully moved to discharge citations issued to the custodian of an individual retirement account (IRA) he inherited from his deceased mother.  The judgment creditor appealed, arguing that the IRA wasn’t properly exempt from the judgment’s reach.

Result: The First District agreed with the creditor and reversed the trial court’s discharge of the citations.

Memorable Quote: “We find no indication that the Illinois legislature intended to allow a judgment debtor to exempt assets that could be spent freely and frivolously at the debtor’s whim.  The [post-judgment statute] is aimed at protecting retirement assets as opposed to funds that could, conceivably, be used to supplement the lifestyle of a non-retiree debtor.”

Reasoning:

– The purpose underlying exemptions from judgments is the protection of a debtor’s essential needs.  Setting aside funds for retirement is a court-recognized example of a debtor protecting his essential needs;

– Code Section 12-1006 exempts retirement plan assets from actions to collect a judgment so long as the retirement plan is intended in good faith to qualify as one under the Internal Revenue Code of 1986;

– Code Section 12-1006 is silent on the difference between a traditional IRA and an inherited non-spousal IRA, such as the one involved in this case and is the functional equivalent of Section 522 of the Bankruptcy Code which governs debtor exemptions from the bankruptcy estate;

– The US Supreme Court has held that money in an inherited IRA does not qualify as “retirement funds” under Bankruptcy Code Section 522 1

– Funds in a non-spousal inherited IRA, on their face, are not set aside for purposes of retirement;

– Unlike in a traditional IRA, the beneficiary of an inherited IRA can freely withdraw funds at any time with no tax penalty.  In fact, the owner of an inherited IRA must withdraw its funds – either in total within 5 years of the original owner’s death or via minimum annual withdrawals 2;

– Since inherited retirement funds can be withdrawn and spent by the account holder whenever he wants, these funds don’t serve the purpose of providing a debtor with the “basic necessities of life” and so do not implicate the policies that underlie judgment exemptions;

– An inherited IRA has nothing to do with retirement since the holder can spend it at will.  It is more akin to a discretionary bank account;

(¶¶ 18-26)

After canvassing the Federal bankruptcy Code, the Internal Revenue Code, the Illinois judgment exemption statutes and the foundational rationale for the exemptions, the First District squarely held that non-spousal inherited IRAs can be attached (i.e. are not exempt) by judgment creditors.

Afterwords:

1/ Exemptions serve salutary purpose of protecting debtor from destitution and abject poverty;

2/ Retirement accounts further that prophylactic purpose;

3/ This policy of protecting debtors has limits though.  If “retirement” funds can be withdrawn and spent at will, the funds won’t be treated as retirement funds and will be within a creditor’s reach.

————————-

References:

1  Clark v. Rameker, 134 S.Ct. 2242 (2014); 11 U.S.C. §§ 522(b), (d).

2  26 U.S.C. § 408(d)(3)(C)(ii)(2012)

When The Person You Have A Judgment Against Has His Property Tied Up In A Trust: What Then?

images (photo credit: www.dreamstime.com; Google images (visited 11.26.14)

In earlier posts, I’ve discussed how time-consuming and frustrating it can be to collect on a money judgment.  The primary creditor enforcement methods include freezing the debtor’s bank accounts, garnishing his wages, and liening his real estate by recording the judgment in the county where his land is located.  Recording a lien against a debtor’s real estate is an especially strong tactic.  Once a creditor records the judgment, he can sue to foreclose the property and force its sale.  But where a debtor has no assets or source of income, the judgment is worthless. 

Adding yet another layer of difficulty to the collection process is where a debtor’s property is sheltered in a trust.  The most common scenario I encounter this in my practice is with real estate held in a land trust.  Typically, the property will be owned by a trustee (usually a bank) and lived in by the debtor who most likely is the trust beneficiary. 

In Illinois, a debtor’s beneficial interest in a land trust is regarded as personal property: he (the debtor) doesn’t possess a direct ownership interest in the trust real estate.  The practical effect: you can’t lien the real estate by recording the judgment since the trust – not the debtor – owns the land.  The debtor’s beneficial interest in a land trust is considered intangible personal (not real) property.  

Illinois’ post-judgment statutory scheme expressly allows a creditor to impress a lien on a debtor’s intangible property via the citation to discover assets.  Once a citation is served on the debtor, the judgment becomes a lien on all of a debtor’s nonexempt personal property (including a beneficial interest in a land trust) on the date the citation is served. 

The citation results in the judgment binding the debtor’s personal property (everything that’s not land basically: cars, jewelry, stereo equipment, stocks, bonds, etc.) in his possession or which later comes into his possession before the citation expires.  735 ILCS 5/2-1402(m)(1). 

Code Section 2-1403 (735 ILCS 5/2-1403) provides that no court can order the satisfaction of any judgment out of property held in trust if (a) the trust was created in good faith; and (b) created by someone other than the debtor.  So, if the trust was created by a third party, the trust property is protected from creditors.  However, once any trust property is distributed “out of” the trust, the creditor can attach and lien the disbursement.

Creditor’s counsel should be leery of property held in trust for the debtor’s benefit and be cognizant of other standard exemptions (property that creditor’s can’t touch) like pension funds, retirement accounts, unemployment benefits, etc. 

Assuming there is no fraud or other suspicious circumstances surrounding the trust’s creation, the trust property will be shielded from creditors.  However, once the trust income is disbursed to the debtor, it’s fair game.  The creditor should then promptly move for a turnover order or ask the court to impress a judicial lien on the trust funds being distributed to the debtor.