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Published By Citizens' Justice Programs

Post Office Box 90, Hull, Massachusetts 02045

Some Thoughts on Litigation and Financial Privacy

By David C. Grossack, Constitutional Attorney

Common Law Copyright © 1994
All Rights Reserved

You see them in your morning mail at least once a week now.

They have scary messages in the envelope like "Avoid Seizure of Property, Open Immediately" or "Kiss Your Assets Goodbye!"

Inevitably, such missives will ask you to purchase a report on "Judgment Proofing" or "Homesteads" or a related topic from one of the plethora of experts in a growing industry, the financial privacy game.

It caught up with me one afternoon in Boston Municipal Court. As a litigation attorney, my work consists in large part of seeking to recover money from individuals or companies who do not want to part with it.

A pro-se defendant ("pro-se" means representing oneself without a lawyer) walking up to me shouting "You may as well give up now; you'll never get any thing from me ... I'm judgment proof!") Here was someone who knew the game and who was trying to wear down my offensive. If you ask anyone active in any aspect of litigation, "judgment proofing" means essentially arranging one's income and assets so legal predators will be unable to seize either.

There are several ways in which an attorney can seize income or assets.

The first is called "pre-trial attachment." This is when permission is granted from the court to prevent you from selling or mortgaging real estate prior to a decision in the case in which you are the Defendant. The purpose is ostensibly to make certain you will have assets to satisfy a judgment against you.

A simple way to convince a judge to vacate an attachment is to produce an insurance coverage certificate which will apply to the specific cause of action brought against you.

Attachments are public records and are routinely monitored by credit rating services. They are often published in real estate journals. Bank accounts are seized in proceedings similar to real estate attachments, as are wages.

Some states will allow your property or bank accounts to be seized without the opportunity to be heard. A boiler plate affidavit alleging a risk of a property transfer can convince a judge to issue an order of pre-trial attachment on an "ex-parte" basis, (meaning a party is not present, that party being you.)

If you are unlucky enough to have a judgment issued against you, the opposing attorney(s) can ask the court to issue a document known as a "Writ of Execution." This can be used to seize property, business equipment, inventory and bank accounts, and to authorize sheriffs to auction off your non-cash assets.

In situations where no assets can be found to satisfy a Judgment and Execution, plaintiff-creditors can force you into court and have you ordered to disclose all of your assets, income, beneficial interests in trusts and so forth. Failure to attend these hearings, known as "poor debtor sessions" or "Supplementary Process Proceedings" is considered a contempt of court and at least in theory is punishable by arrest by constable in Massachusetts, and other states.

In reality many debtors ignore supplementary process notices and the threat of arrest by constable.

It is both easy and common for a lawyer to accumulate hundreds of thousands of dollars in uncollected judgments.

An industry is emerging to add to this trend. Call it the Financial Privacy Industry. The theory behind it is quite simple. Don't be a sitting duck for bill collectors. Purchase legal and financial services to avoid creditors. You can even purchase an offshore bank in the Republic of Palau for $7,500.00 (this may be the ultimate in asset hiding.)

Service bureaus sell turn-key bank operating systems for prospective bank owners and it cannot be disputed that bank privacy and anonymity is greater in a variety of off-shore locations than here in the USA.

For generations wealthy Europeans have availed themselves to a device known as a Liechtenstein "anstalt" which holds some similarity to the US common law trust for the purpose of changing legal, but not necessarily beneficial ownership of assets.

Since ancient Roman times there has been the forerunner of the trustee, known as the "straw", i.e. a trusted friend, who held possession of goods or land while the real owner was at war, incarcerated or otherwise out of the picture. Americans are now using trusts in record numbers, and perhaps straws as well. Having been a litigation attorney for a number of years it is not without some frustration I have encountered defendants who obviously use these or other methods to avoid leaving a paper trail of their property.

Because there is a Registry of Deeds system in every state, and because huge data bases exist that any financial detective can plug into (by stealth if need be), Americans really do not have much financial privacy, especially if they become involved in litigation. Many devices offered by lawyers and other experts do not work, or go haywire.

One prominent businessman had a corporation for his business and his wife was trustee for the family home. He made the ignorant mistake of placing shares of the corporation in the name of the trust.

The IRS (Internal Revenue Service) assessed various charges, fines and penalties to the corporation and also hit the family realty trust with liens arising from the corporate debt. Placing a home in a trust is not always a perfect shield. Equity actions can easily pierce a trust if a judge feels that the trust was used to avoid creditors in bad faith.

Horror stories do abound in the course of ordinary litigation. A man purchased a restaurant with a promissory note and defaulted. He failed to obtain the promisee's consent to transfer ownership of the business, there was an indefensible lawsuit and an attachment as well as a judgment sale of his home. He had signed all notes personally and allowed his home to remain in his name.

People do occasionally become forced out into the street because of unforeseen litigation problems and need to take as many steps as possible to place barriers in the way of those seeking to acquire their property for real or imagined grievances.

Thus an incentive exists for the purveyors of financial privacy, judgment proofing devices, and so forth. Anyone who has been the victim of an ex-parte attachment might be interested.

Some of the best devices are also the cheapest. Many states protect a family's interest in its primary residence by permitting the filing of a "homestead deed." In Massachusetts, homeowners can shield $200,000 equity, excluding mortgages and tax liens. Even certain commercial real estate can be shielded.

The costs of a homestead including a ($10.00) ten dollar filing fee and then whatever a lawyer can get away in charging to draw it up. Over $90.00 would be high.

Trust formation generally costs $750.00 and upwards.

Due to high malpractice premiums, many attorneys (yes, we are being sued in increasing numbers) and physicians are now seriously exploring judgment proofing and financial privacy.

Newsletters are appearing in the mail telling stories of professionals ruined by outrageous jury verdicts, and offering bank accounts in the Channel Islands, Grand Turk and even the Cook Islands, near New Zealand.

It is scary to contemplate placing one's earnings in a jurisdiction where deposits are not insured and, where the protections afforded by our government are not present.

Nevertheless, our litigious society has created a boom in financial privacy services and judgment proofing. Traps for the unsophisticated and new frontiers for the adventurous will no doubt bring more news stories for these pages in the not too distant future.

The author is an attorney in private practice in Boston.