Page:United States Statutes at Large Volume 76A.djvu/413

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-317for his claim to exemption, and all facts necessary to support his claim, and also stating therein his address for the purpose of permitting service by mail upon him of the counter-affidavit and any notice of the motion herein provided. (2) Forthwith upon receiving the affidavit of exemption the levying officer shall serve upon the plaintiff or the person m whose favor the writ runs (herein referred to as "the creditor"), either personally or by mail, a copy of the affidavit of exemption, together with a writing, signed by the levying officer, stating that the claim to exemption has been received and that the officer will release the property unless he receives from the creditor a counter-affidavit within five days after service of the writing. (3) If the creditor desires to contest the claim to exemption, he shall within the period of five days file with the levying officer a counter-affidavit alleging that the property is not exempt within the meaning of the paragraphs relied upon, or if the claim to exemption is based on paragraph (1), (2), or (4) of section 548 of this title, alleging that the value of the property claimed to be exempt is in excess of the value stated in the applicable paragraphs, together with pi-oof of service of a copy of the counter-affidavit upon the judgment debtor. (4) If a counter-affidavit, with proof of service, is not so filed with the levying officer within the time allowed, the officer shall forthwith release the property. (5) If a counter-affidavit, with proof of service, is so filed, either the creditor or the judgment debtor is entitled to a hearing in the court in which the action is pending or from which the writ issued for the purpose of determining the claim to exemption, or the value of the property claimed to be exempt. The hearing shall be granted by the court upon motion of either party made within five days after the counter-affidavit is filed with the levying officer, and the hearing shall be had within 15 days from date of the making of the motion unless continued by the court for good cause. The party making the motion for hearing shall give not less than five days' notice in writing of the hearing to the levying officer and to the other party and specify therein that the hearing is for the purpose of determining the claim to exemption. The notice may be of motion or of hearing and upon the filing of the notice with the clerk of court, the motion is deemed made. (6) If neither party makes such a motion within the time allowed, or if the levying officer is not served with a copy of the notice of hearing within 10 days after the filing of the counter-affidavit, the levying officer shall fortliwith release the property to the judgment debtor. (7) At any time while the proceedings are pending, upon motion of either party or upon its own motion, the court may make such orders as may be proper under the particular circumstances of the case. Any orders so made may be modified or vacated by the court or judge granting the same, or by the court in which the proceedings are pending, at any time during the pendency of the proceedings, upon such terms as may be just. (8) The levying officer in all cases shall retain physical possession of the property levied upon if it is capable of physical possession, or in the case of property not capable of physical possession, the levy shall remain in full force and effect, pending the final determination of the claim to exemption, A sale under execution may not be had prior to the final determination unless an order of the court hearing the claim for exemption so provides. (9) At the hearing, the party claiming the exemption has the burden of proof. The affidavits and counter-affidavits shall be filed by the levying officer with the court and shall constitute the