Can I Keep Jewelry in Bankruptcy?

07 Oct Can I Keep Jewelry in Bankruptcy?

One question we’re often asked is whether a client can keep their jewelry if they file for bankruptcy. The answer is “usually,” but, as with most things, it depends on the details.

If you own the jewelry free and clear, meaning that it isn’t security for a loan, the answer depends on how much it’s worth and how much you can exempt.

I previously wrote a fairly detailed blog discussing “What Are Exemptions (or What Can I Keep in Bankruptcy),” which I recommend reading. In some states, a wedding band and engagement ring, regardless of value, are fully exempt, meaning that you can keep them, even if they’re worth a million dollars. Others, such as Kansas, have a dollar limit. For an excellent article discussing the Kansas jewelry exemption, see Jill Michaux‘s post, Will a Kansas Bankruptcy Trustee Take My Wedding Ring From Me? In other states, such as Maryland, there are no specific exemptions for jewelry. Does this mean you have to turn over to the Trustee your wedding ring? Certainly not.

In a Chapter 13 case, you keep everything that you have, regardless of value and regardless of whether it is exempt. Read my blog, “What Can I Keep in Bankruptcy” for a more detailed discussion of this. In a Chapter 7 case, even in Maryland, jewelry is valued not at sale or replacement value, but by liquidation value. What is Liquidation Value? It’s how much you can actually sell the item for. In the case of jewelry, this means how much a jeweler or pawn shop would pay for it, NOT how much you bought it for, or its replacement value. In most cases, this amount is so small that it will fit comfortably within your exemptions, even in Maryland.

If you bought the item of jewelry on credit and the creditor took a security interest in the item, does this mean that you have to give it up? Probably not. This is because of the economics of liens.

Liens survive bankruptcy. In all states that I am aware of, this means that if you don’t strip off the lien (see Chip Parker’s blog on this issue, “What is a Secured Debt”), it continues through bankruptcy and has to be dealt with once your case is discharged. But what does “dealt with” really mean?

It means that before the creditor can actually require you to give up the item (or can take it), it must go through the following steps:

• Hire (and pay for) a lawyer;
• The lawyer needs to file a specific type of lawsuit called a “Replevin Action”;
• A summons needs to be personally served on you (more money);
• A hearing needs to be held or the Court needs to enter a default against you;
• The creditor needs to hire someone to go to your house with a sheriff and take the item (more money);
• The creditor needs to advertise that the item will be sold at auction on a particular date (more money);
• The creditor needs to hire an auctioneer to sell the item (more money);
• The creditor needs to pay the lawyer to file an accounting of all the money received and how it was allocated (more money).

By the time this process is over, a creditor would usually spend several thousand dollars. So, if the item won’t sell at auction for at least enough to pay the out-of-pocket costs of the replevin action, it is very unlikely that the creditor will actually do anything other than threaten to do something. And even if the creditor decides to file a replevin action, I have usually been successful in working out a payment arrangement so that my client can keep the item.

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Brett Weiss, Esq.

Brett Weiss, a senior partner at Chung & Press, LLC, represents people and businesses in all phases of bankruptcy. He has experience in complex individual Chapter 7, Chapter 11 and Chapter 13 bankruptcy cases, and in Chapter 11 small business restructuring and reorganization. Mr. Weiss lectures nationally on bankruptcy issues. He has testified before the Federal Bankruptcy Rules Committee, the Consumer Financial Protection Bureau, and has twice testified before Congress on bankruptcy and credit issues. Brett Weiss is the co-author of Chapter 11 for Individual Debtors, and has written Not Dead Yet: Bankruptcy After BAPCPA, for the Maryland Bar Journal, as well as hundreds of blogs for the Bankruptcy Law Network. With his law partner, he recorded a 13-hour basic bankruptcy training series, and leads intensive three-day Chapter 11 training boot camps. Mr. Weiss has received international media attention in connection with his work. He was interviewed by Barbara Walters on The View, has appeared on the Today Show, Good Morning America, ABC News with Peter Jennings, the Montel Williams Show, National Public Radio, AARP-TV, the BBC World Service, German state television, and numerous local radio and television programs, and been quoted in Money magazine, The Washington Post and The Baltimore Sun, among others. Brett Weiss is the Maryland State Chair for the National Association of Consumer Bankruptcy Attorneys, a founding member of the Bankruptcy Law Network, on the board of the Maryland State Bar Consumer Bankruptcy Council, and a member of the American Bankruptcy Institute, the Bankruptcy Bar Association of Maryland, and the Civil Justice Network. He has been recognized as a “Super Lawyer” every year since 2007 for Maryland and the District of Columbia, and in 2011 received the Distinguished Service Award from the National Association of Consumer Bankruptcy Attorneys for his work on behalf of consumers across the country. Mr. Weiss is admitted to practice before Maryland and District of Columbia federal and state courts, the United States Courts of Appeals for the DC, Fourth and Eighth Circuits, The United States Tax Court, and the Supreme Court of the United States, and has been practicing law since 1983.

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