It often happens that a creditor will garnish a debtor’s bank
account, but there are more individuals named as account owners than just the one
debtor. People have a multitude of reasons for jointly owned bank accounts, and
they may never have thought about the possibility their individual deposits to
an account might be subject to the debts of a another named account co-owner.
KRS 391.310(1) provides in part as follows:
“A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.”
A party’s “net contribution” to the account is defined by KRS
391.300(6) as the sum of all deposits thereto made by or for him, less all
withdrawals made by or for him which have not been paid to or applied to the
use of any other party, plus a pro rata share of any interest or dividends
included in the current balance. These statutory provisions are “relevant only
to controversies between these persons and their creditors and other
successors,” KRS 391.305. Each of an account’s co-owners may be authorized full
access and right to withdraw all of the funds in an account, even if that is
more than their respective individual contribution of fund into the account,
but in Kentucky the mere right to withdraw all the funds from an account does
not establish ‘ownership’ of all the funds.
For example, a joint account is established for a child’s
education with the intent that the child is the owner of all the funds in the
account even though many contributions into the account are made by others. If
contributions to the fund are intended as gifts to the child, “clear and convincing” documentation should be
created to establish that intent to safeguard the account funds from the other’s
creditors, KRS 391.310(1), supra.
Ownership of joint bank accounts is presumed by statute to
depend upon who contributed the funds to the account, subject to proof of a
different intention. But, with bank account judicial garnishments, Kentucky
courts have held that a party to a joint account is initially presumed to own
the entire joint account for procedural purposes. The debtor or other account co-owners
must claim and prove their respective contributions to the account to overcome
that presumption, or prove an intention that the non-contributor has a greater
ownership interest than their relative contributions would indicate. See Brown
v Commonwealth of Kentucky,
40 S.W.3d 873 (Ky. App. 1999)
Brown, supra, stated in passing the best procedural
practice would be for the non-debtor joint owner of the account to intervene as
an interested party pursuant to Civil Rule 24.01 and assert his or her
ownership rights directly.
No comments:
Post a Comment