Posted September 23, 2020 in Legislation
By Tony Klein
On September 1, 2020 a new series of levy forms were mandated to comply with Senate Bill 616 (SB 616). The bill amended and added code sections designed to provide an automatic exemption for a debtor whose bank account was levied without them having to file a claim of exemption form. It also extends the time for a debtor to file a claim.
The statutes mandate a new writ of execution and notice of levy form.
Writ of Execution
The most significant change to the form was adding a mandated designation that the judgment was for “wages owed”, “child or spousal support”, or “other” on line 22. This will probably be the most common mistake in filling out this new form because it appears out of immediate view on the upper third portion of page 2.
The new law amended CCP § 699.520 adding to the list of which items of information must be on a writ of execution. Bolded and underlined below is what was added:
CCP § 699.520. The writ of execution shall require the levying officer to whom it is directed to enforce the money judgment and shall include the following information:
(a) The date of issuance of the writ.
(b) The title of the court in which the judgment is entered and the cause and number of the action.
(c) Whether the judgment is for wages owed, child support, or spousal support. This paragraph shall become operative on September 1, 2020.
(d) The name and address of the judgment creditor and the name and last known address of the judgment debtor. If the judgment debtor is other than a natural person, the type of legal entity shall be stated.
(e) The date of the entry of the judgment and of any subsequent renewals and where entered in the records of the court.
(f) The total amount of the money judgment as entered or renewed, together with costs thereafter added to the judgment pursuant to Section 685.090 and the accrued interest on the judgment from the date of entry or renewal of the judgment to the date of issuance of the writ, reduced by any partial satisfactions and by any amounts no longer enforceable.
(g) The amount required to satisfy the money judgment on the date the writ is issued.
(h) The amount of interest accruing daily on the principal amount of the judgment from the date the writ is issued.
(i) Whether any person has requested notice of sale under the judgment and, if so, the name and mailing address of that person.
(j) The sum of the fees and costs added to the judgment pursuant to Section 6103.5 or Article 6 (commencing with Section 68630) of Chapter 2 of Title 8 of the Government Code, and which is in addition to the amount owing to the judgment creditor on the judgment.
(k) Whether the writ of execution includes any additional names of the judgment debtor pursuant to an affidavit of identity, as defined in Section 680.135.
(l) A statement indicating whether the case is limited or unlimited.
California Rule of Court Rule 1.42(9) states that a court must not reject a form if “[t]he form is not the latest version of the form adopted or approved by the Judicial Council.” When this rule was adopted, the Judicial Council report further explained that if the form is otherwise legally sufficient, the obsolete form may be used.
Writs are not filed; they are presented to the court to be issued. Certainly, the calculations of the judgment amount, interest, credits, etc. do not change and have not been affected by the new law, but the law amends CCP 699.520(c) requiring that designation be on the writ. The question is, therefore, does that make the prior writ form now “legally insufficient” if it was issued by a court prior to September 1, 2020?
Because this writ form is an “Approved” and not “Mandatory”, an easy add-on statement designating the type of judgment could be included to comply with the spirit of the law. This could be a solution for creditors who have had validly writs issued during the prior 180 days wondering if they need to return the old writ and pay the court $40.00 to issue another on the current form. On the other hand, it may require a return to the court to have the clerk initial the “change” or “alternation” to the issued writ by attaching the designation.
Notice of Levy
There are significant changes to the form. In addition to the judgment designation, it further explains the automatic exemption and extensively describes the deadlines and the claim process.
This is also an “Approved” and not a “Mandated” form, but it would be impracticable to use the old form for current levies.
Exemption from the Enforcement of Judgments
The form has been revised, updating federal and state law citations, adding FEMA funds, benefit funds, a hardship exemption, etc.
Current Dollar Amount Exempt from the Enforcement of Judgments
This form adds reference the U.S.C. bankruptcy law and the automatic exemption by statute. This form changes triennially on April 1, and now will have to be changed annually because the automatic exemption dollar amount changes on July 1 each year.
Levies on Multiple Deposit Accounts
There are a series of forms that are new for the creditor or debtor to file a motion when a levy is made and it involves money in multiple bank accounts.
Amount of Automatic Exemption
The original automatic exemption amount contemplated when SB 616 was introduced was $2000. The final chaptered version referenced the automatic exemption in new CCP 704.520 which automatically increases yearly on July 1. Bolded and underlined below is where it is
CCP § 704.220.
(a) Money in the judgment debtor’s deposit account in an amount equal to or less than the minimum basic standard of adequate care for a family of four for Region 1, established by Section 11452 of the Welfare and Institutions Code and as annually adjusted by the State Department of Social Services pursuant to Section 11453 of the Welfare and Institutions Code, is exempt without making a claim.
I spent 45 minutes on the State Department of Social Services’ website in June looking for this amount and found it on a chart. The amount was $1724.
I checked again in late August and took another 15 minutes looking and couldn’t find it. I did find it on another non-governmental website. As of this writing, September 2, 2020, the total amount is $1788. This amount adjusts each year on July 1.
It is unknown how each sheriff will handle these changes.
The CALSPro Legislative Committee are calling the sheriffs across the state to find out what their policies are regarding the new forms, and the change in the laws, and whether they will open a file with a writ that was issued on the old form.
The consensus is developing that if the files were opened and pending prior to September 1, 2020 the sheriff will continue the levy. There is no consensus as to what will happen if the file is opened with a writ that was issued before September 1, 2020.
Certainly, the new notice of levy should be used. The older form does not comply with the new law.
The 79-page Judicial Council Report of May 15, 2020 that created the new forms can be found HERE.
The proposed “Writ of Execution form” can be viewed on page 16.
The current forms can be found here under Latest Changes, and scroll down to the Forms Approved 5/28/2020, Effective on 9/1/2020 > Enforcement of Judgement link.