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Division 4. Courts and Judicial Proceedings
Title 36. Civil Remedies and Defenses and Special Proceedings
Chapter 651. Attachment and Execution
Part III. Exemptions
§ 651-61. Exemption, how claimed
Where an officer is about to levy an attachment or execution on personal property, some of which is claimed as exempt, the officer shall demand of the defendant in writing that the defendant make selection of such property as is exempt to the defendant and in reference to which the defendant has the right of selection and the defendant shall then and there make the defendant's selection; or, failing so to do, the officer shall make it for the defendant, and any selection so made shall be conclusive on the defendant.
§ 651-62. Indemnity bond if exemption claimed
If any officer levies or is about to levy an attachment or execution on any property claimed as exempt under subpart C, and a doubt arises as to the liability of the property to be seized or sold, the officer may demand of the plaintiff a bond with sufficient sureties, payable to the officer, in a sufficient penalty, conditioned to indemnify and save harmless the officer against all damages, costs, and expenses which the officer may sustain in consequence of the seizure or sale of the property. If the bond is not given after twenty-four hours' notice in writing from the officer to the plaintiff, the plaintiff's agent, or attorney, if it is required, the officer may refuse to levy, or, having levied, may dismiss the levy. If the required bond is given, the officer shall seize and sell or dispose of the property according to the command of the process in the officer's hands.
§ 651-63. Liability for selling exempt property
If any officer or other person seizes or sells any property exempt from execution under subpart C, the officer or other person shall be liable to an action at the suit of the owner for all damages and costs sustained thereby, including an attorney's fee to be fixed by the court before which the action is tried, and the fact that the officer or person has demanded and received the indemnifying bond mentioned in section 651-62 shall not exempt the officer or other person from the liability in this section specified.
§ 651-64. Seizure of exempt property
Any defendant who claims that exempt property has been levied upon or seized may, with or without the giving of bond, apply to the court which issued the process for the release and return of the property. Upon the giving of bond in such sum and with such sureties as may be approved by the court, payable to the plaintiff in the attachment or execution and conditioned to have the property forthcoming to abide the court's determination of whether such property is exempt or for its value, and for the payment of costs, the court may order the property released and returned to the defendant forthwith. In such case the officer shall deliver the property to the defendant, and return the attachment or execution to the court whence it issued.
If it shall be found that the property is liable to attachment or execution, the same not being exempt, the plaintiff shall have judgment against the defendant and the defendant's sureties on the bond for the value of the property and the costs of the proceeding including an attorney's fee, or for such costs and the reinstitution of the levy as of the date it was made, as the court shall order. But if it is found that the property is exempt, the defendant shall recover the defendant's property, damages, and costs including an attorney's fee to be fixed by the court.
§§ 651-65 to 651-67. Repealed by Laws 1976, ch. 136, § 5
§§ 651-65 to 651-67. Repealed by Laws 1976, ch. 136, § 5
§ 651-68. Proceedings on execution; appraisers; expiration of lien, result
When an execution for the enforcement of a judgment is levied upon real or personal property for which an exemption is authorized under subpart B or C, the judgment creditor may at any time within sixty days thereafter apply to the court for the appointment of a person or persons to appraise the value thereof. If such application is not made within sixty days after the levy of such execution the lien of the execution shall cease at the expiration of such period, and no execution based upon the same judgment shall thereafter be levied upon the real or personal property.
§ 651-69. Application form contents
The application shall be made upon a verified petition of the judgment creditor filed with the court showing:
(1) The fact that an execution has been levied upon the real or personal property within sixty days prior to the filing of the petition.
(2) A description of the real or personal property and the name of the claimant of an exemption under subpart B or C.
(3) That the value of the real or personal property, over and above all liens and encumbrances thereon recorded prior to the lien under which sale is to be made, exceeds the amount of the real or personal property exemption, if any.
(4) That no previous execution arising out of the same judgment has been levied upon the real or personal property.
[§ 651-70]. Service of petition and notice of hearing; effects of failure to serve; appointment of appraisers
Within ninety days from the date of filing the petition, a copy thereof, with the notice of the time and place of hearing, shall be served personally by any person over the age of majority and by certified mail, return receipt requested, upon the claimant or the claimant's attorneys at least ten days before the hearing, then upon affidavit or refusal of such services or inability to locate upon diligent search and inquiry, by publication once in a newspaper of general circulation in the State at least twenty days before the hearing. If the notice is not served, the lien of the execution shall cease at the expiration of the ninety-day period, and no execution based upon the same judgment shall thereafter be levied upon the real or personal property.
At the hearing the court may, upon proof of the service of a copy of the petition and notice, and of the facts stated in the petition, appoint one to three disinterested residents of the county in which the property is situated to appraise the value of the real or personal property.
B. Real Property
§ 651-91. Definitions
As used in this subpart:
(1) "Head of a family" includes within its meaning:
(A) A man and woman when married, except as provided in section 651-93.
(B) Every individual who is residing on the real property and who has under his or her care or maintenance, either:
(i) His or her minor child, or minor grandchild, or the minor child of his or her deceased wife or husband;
(ii) A minor brother or sister, or the minor child of a deceased brother or sister;
(iii) A father, mother, grandfather, or grandmother;
(iv) The father, mother, grandfather, or grandmother of a deceased husband or wife;
(v) An unmarried brother, sister, or any other of the relatives mentioned in this subparagraph, who have attained the age of majority.
(C) Head of household as defined in section 2(b) of the Internal Revenue Code of 1954, as amended.
(2) "Long-term lease" means a lease for twenty years or more.
(3) "Owner" means an individual who has an interest in real property.
(4) "Person" means any individual under sixty-five years of age other than the head of a family.
(5) "Real property" consists of the dwelling house in which the owner resides and one parcel of land not to exceed one acre, upon which it is situated together with other buildings thereon. This parcel may be in fee simple or any other interest in real property which vests the immediate right of possession, even though such right of possession is not exclusive, and includes land held under long-term lease, ownership rights in a condominium or stock cooperative unit.
§ 651-92. Real property exempt
(a) Real property shall be exempt from attachment or execution as follows:
(1) An interest in one parcel of real property in the State of Hawaii of a fair market value not exceeding $30,000 owned by the defendant who is either the head of a family or an individual sixty-five years of age or older.
(2) An interest in one parcel of real property in the State of Hawaii of a fair market value not exceeding $20,000 owned by the defendant who is a person.
The fair market value of the interest exempted in paragraphs (1) or (2) shall be determined by appraisal and shall be an interest which is over and above all liens and encumbrances on the real property recorded prior to the lien under which attachment or execution is to be made. Not more than one exemption shall be claimed on any one parcel of real property even though more than one person residing on such real property may otherwise be entitled to an exemption.
Any claim of exemption under this section made before May 27, 1976, shall be deemed to be amended on May 27, 1976, by increasing the exemption to the amount permitted by this section on May 27, 1976, to the extent that such increase does not impair or defeat the right of any creditor who has executed upon the real property prior to May 27, 1976.
(b) No exemption authorized under this section shall apply to process arising from:
(1) A lien as provided by section 507-42;
(2) A lien or security interest created by a mortgage, security agreement, or other security instrument;
(3) A tax lien in the name of the federal or state government;
(4) An improvement district lien of any county of the State; or
(5) A lien or encumbrance recorded against the real property prior to the acquisition of interest in and commencement of residence on such real property.
[§ 651-93]. Effect of separation, divorce, reconciliation
Following the entry of a decree of separate maintenance or an interlocutory decree of divorce, each spouse may claim a separate real property exemption under this part as a person. A subsequent reconciliation of the spouses when evidenced by a dismissal of the divorce action or vacation of the decree of separate maintenance executed by both spouses or their attorneys of record shall cancel a separate claim for a real property exemption and the spouses shall only have one real property exemption.
§ 651-94. Proceedings where real property can be divided without material injury
If the defendant is entitled to an exemption as provided in section 651-92, and from the appraiser's report, it appears to the judge that the real property claimed can be divided without material injury and subject to applicable state and county land use, zoning, and subdivision laws, the judge shall, by order, direct the appraisers to set off to the defendant so much of the real property, including the residence and outbuildings, as will amount in value to the real property exemption and all liens and encumbrances and the execution may be enforced against the remainder of the real property subject to all liens and encumbrances recorded prior to the lien under which sale is made.
If a sale is made, the proceeds thereof shall be applied in the following order of priority: first, to the satisfaction of the execution costs, attorney's and appraiser's fees, and any other fees that may necessarily arise; second, to the satisfaction of the lien under which the sale is made; third, to the discharge of any subsequent liens and encumbrances according to their priority, and the balance, if any, to the defendant. The sale shall operate to extinguish subsequent liens and encumbrances on the remainder sold without forcing prior lienors and encumbrancers to exercise their right of recovery.
As used in this section, "material injury" means that the value of the real property left after the set off to the defendant is less than: all liens and encumbrances on the real property recorded prior to lien under which sale is made and an amount equal to estimated execution costs, attorney's and appraiser's fees, and other fees.
§ 651-95. Sale where real property cannot be divided; application of proceeds
If the defendant is entitled to an exemption as provided in section 651-92, and if, from the appraiser's report, it appears to the court that the real property claimed exceeds in value the amount of the real property exemption, all liens and encumbrances recorded prior to the judgment lien under which sale is to be made and an amount equal to estimated execution costs, attorney's and appraiser's fees, and other fees, and that it cannot be divided under section 651-94, the court shall make an order directing its sale under the execution, subject to all liens and encumbrances recorded prior to the lien under which the sale is to be made.
If the sale is made, the proceeds thereof shall be applied in the following order of priority: first, to the defendant to the amount of the exemption; second, to the satisfaction of the execution costs, attorney's and appraiser's fees, and any other fees that may necessarily arise; third, to the satisfaction of the lien under which the sale is made; fourth, to the discharge of any subsequent liens and encumbrances according to their priority, and fifth, the balance, if any, to the defendant. The sale shall operate to extinguish subsequent liens and encumbrances without forcing prior lienors and encumbrancers to exercise their right of recovery.
§ 651-96. After sale, money equal to real property exemption protected
The money paid to the defendant as the defendant's exemption shall be entitled, for the period of six months thereafter, to the same protection against attachment and execution which section 651-92 gives to the real property. If the defendant, within such six-month period, applies such proceeds to the purchase of real property, the date of such acquisition and commencement of residence for the purpose of section 651-92(b)(5), shall be considered to be the date of the acquisition of interest in and commencement of residence on the real property whose sale resulted in such proceeds.
C. Personal Property
§ 651-121. Certain personal property and insurance thereon, exempt
The following described personal property of an individual up to the value set forth shall be exempt from attachment and execution as follows:
(1) All necessary household furnishings and appliances, books and wearing apparel, ordinarily and reasonably necessary to, and personally used by a debtor or the debtor's family residing with the debtor; and, in addition thereto, jewelry, watches, and items of personal adornment up to an aggregate cash value not exceeding $1,000.
(2) One motor vehicle up to a value of $2,575 over and above all liens and encumbrances on the motor vehicle; provided that the value of the motor vehicle shall be measured by established wholesale used car prices customarily found in guides used by Hawaii motor vehicle dealers; or, if not listed in such guides, fair wholesale market value, with necessary adjustment for condition.
(3) Any combination of the following: tools, implements, instruments, uniforms, furnishings, books, equipment, one commercial fishing boat and nets, one motor vehicle, and other personal property ordinarily and reasonably necessary to and personally owned and used by the debtor in the exercise of the debtor's trade, business, calling, or profession by which the debtor earns the debtor's livelihood.
(4) One parcel of land, not exceeding two hundred fifty square feet in size, niche or interment space owned, used, or occupied by any person, or by any person jointly with any other person or persons, in any graveyard, cemetery, or other place for the sole purpose of burying the dead, together with the railing or fencing enclosing the same, and all gravestones, tombstones, monuments, and other appropriate improvements thereon erected.
(5) The proceeds of insurance on, and the proceeds of the sale of, the property in this section mentioned, for the period of six months from the date the proceeds are received.
(6) The wages, salaries, commissions, and all other compensation for personal services due to the debtor for services rendered during the thirty-one days before the date of the proceeding.
§ 651-122. Personal property not exempt
No exemption for personal property authorized under section 651-121 shall apply to attachment or execution issued upon a judgment recovered for the price of such property, or upon a judgment of foreclosure of a security agreement or other security instrument encumbering personal property or for taxes or fines or any debt due the State.
§ 651-123. Application of proceeds of sale
When the property thus taken is sold, which sale shall be subject to all prior liens and encumbrances, the proceeds of the sale thereof shall be applied in the following order of priority: first, to the defendant to the amount of the exemption, if any; second, to the satisfaction of the execution costs, attorney's and appraiser's fees, and any other fees that may necessarily arise; third, to the satisfaction of the lien under which the sale is made; fourth, to the discharge of any subsequent liens and encumbrances according to their priority; and fifth, the balance, if any, to the defendant. The sale shall operate to extinguish subsequent liens and encumbrances without forcing prior lienors and encumbrancers to their right of recovery.
§ 651-124. Pension money exempt
The right of a debtor to a pension, annuity, retirement or disability allowance, death benefit, any optional benefit, or any other right accrued or accruing under any retirement plan or arrangement described in section 401(a), 401(k), 403(a), 403(b), 408, 408A, 409 (as in effect prior to January 1, 1984), 414(d), or 414(e) of the Internal Revenue Code of 1986, as amended, or any fund created by the plan or arrangement, shall be exempt from attachment, execution, seizure, the operation of bankruptcy or insolvency laws under 11 United States Code section 522(b), or under any legal process whatever. However, this section shall not apply to:
(1) A "qualified domestic relations order" as defined in section 206(d) of the Employee Retirement Security Act of 1974, as amended, or in section 414(p) of the Internal Revenue Code of 1986, as amended; and
(2) Contributions made to a plan or arrangement within the three years before the date a debtor files for bankruptcy, whether voluntary or involuntary, or within three years before the date a civil action is initiated against the debtor, except for contributions to a retirement plan established by state statute if the effect would be to eliminate a state employee's retirement service credit.
Division 2. Business
Title 24. Insurance
Chapter 431. Insurance Code
Article 10. Insurance Contracts Generally
Part II. General Rules
§ 431:10-231. Exemption of proceeds; accident and health or sickness
The proceeds of all contracts of accident and health or sickness insurance and of provisions providing benefits on account of the insured's disability which are supplemental to life insurance or annuity contracts shall be exempt from all liability for any debt of the insured, and from any debt of the beneficiary existing at the time the proceeds are made available for the beneficiary's use.
§ 431:10-232. Exemption of proceeds; life, endowment and annuity
(a) All proceeds payable because of the death of the insured and the aggregate net cash value of any or all life and endowment policies and annuity contracts payable to a spouse of the insured, or to a child, parent or other person dependent upon the insured, whether the power to change the beneficiary is reserved to the insured or not, and whether the insured or the insured's estate is a contingent beneficiary or not, shall be exempt from execution, attachment, garnishment, or other process, for the debts or liabilities of the insured incurred subsequent to May 19, 1939, except as to premiums paid in fraud of creditors within the period limited by law for the recovery of such payments.
(b) When the terms of any life or endowment policy or annuity contract require that the proceeds thereof be retained by the insurer upon the death of the insured, or other maturity of the policy or contract, for payment to any beneficiary other than the insured in accordance with a settlement plan selected by the insured, the beneficiary shall have no right or power, nor shall the beneficiary be permitted by any insurer, to commute, encumber, assign, or otherwise anticipate the beneficiary's interests under the plan if the right or power is expressly denied the beneficiary by the terms of the contract or policy. If the beneficiary under the settlement plan is or was the spouse of the insured, or a child, parent or other person dependent upon the insured, the beneficiary's interests thereunder, in any case, shall be exempt from execution, attachment, garnishment, or other process for the beneficiary's debts or liabilities incurred after December 31, 1955.
(c) This section does not apply to group life insurance.
§ 431:10-233. Exemption of proceeds; group life
(a) A policy of group life insurance or the proceeds thereof payable to the individual insured or to the beneficiary thereunder, shall not be liable, either before or after payment, to be applied to any legal or equitable process to pay any liability of any person having a right under the policy. The proceeds of the policy, when not made payable to a named beneficiary or to a third person pursuant to a facility-of-payment clause, shall not constitute a part of the estate of the individual insured for the payment of the insured's debts.
(b) This section shall not apply to group life insurance policies issued under section 431:10D-203 to the extent that the proceeds are applied to payment of the obligation for the purpose of which the insurance was so issued.
