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Bay State laws on property seizures mostly antiquated, routinely ignored

Massachusetts laws regulating personal property seizures are laden with the dust of centuries of legislative inattention.

A Globe review found that many are vague and most are out of date. In fact, several provisions have remained on the books without legislative or judicial review for decades and, in some cases, more than 300 years.

For example, since Colonial times Massachusetts lawmakers have recognized that certain property owned by debtors should be protected from collectors, to ensure they can get by, and to give them a realistic chance of repaying their debts. One antiquated provision says that every debtor, no matter how large the debt, may keep ''two cows, twelve sheep, two swine and four tons of hay,'' while another protects ''one pew occupied by [a debtor] or his family in a house of public worship.''

Today, the best-known example of such protection is the so-called ''homestead law,'' which shields the value of most homes in the state from any action taken by a creditor. Over the last 30 years, state lawmakers have increased the protection from $30,000 to $500,000 in value - reflecting rising property values and putting most homes beyond the reach of creditors.

In 1975, the Legislature for the first time added a similar exemption for autos ''necessary for personal transportation or to secure and maintain employment.'' The provision barred the seizure of any car worth $700 or less.

But the Legislature has never updated the $700 figure, even though the cost of cars has escalated markedly. Jordan L. Shapiro, a long-time collection attorney and a coauthor of the standard reference book on Massachusetts collection law, said he believes the automobile protection should be raised by ''several thousand dollars.'' Such a change would, by itself, protect the vast majority of cars from seizure.

It is also past time, Shapiro said, for a comprehensive review of statutes related to the seizure of personal property - to include, he said, the absurdly inadequate exemption in the colonial statute that permits a dairy farmer to keep just two cows.

In addition, Shapiro said, the law creating the $700 automobile exemption has no provision requiring that debtors be informed about it. And the Globe found that in almost all cases where constables and sheriffs seize cars and sell them at auction, they pocket the proceeds, dividing the take with tow lot operators and creditors without setting aside the debtor's $700 share.

Most sheriffs and constables told the Globe they believe it is the debtor's responsibility to claim the money. But Shapiro disagreed. ''I don't think the debtor has to do anything to get it back,'' he said. ''It's up to the creditor to make sure the debtor gets the first 700 bucks.''

Brad Parker, chief deputy sheriff of Barnstable County, agrees. Parker said only two debtors in Barnstable have had confiscated autos sold at auction in the last five years, and each was given the $700. They knew they were entitled to the money, he said, ''because we told them.''

In recent years, legislative action has left debtors' property more vulnerable, not less. In 1990, the Legislature created a loophole in state law that allows constables and deputy sheriffs to set their own fees. Until then, the fee was limited to $25, unless both the creditor and the debtor agreed on a higher amount. Former state representative Michael P. Walsh, the House chairman of the Committee on Counties in 1990, sponsored the legislative change. In an interview, Walsh said he could not recall who requested the rewording of the law. But it seems logical to him that the change was made at the request of the sheriffs.

''I'm sure there was a justifiable reason for it,'' he said.

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