BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 233
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 233 (Wieckowski)
          As Amended April 9, 2013
          Majority vote 

           JUDICIARY           7-2                                         
           
           ----------------------------------------------------------------- 
          |Ayes:|Wieckowski, Alejo, Chau,  |     |                          |
          |     |Dickinson, Garcia,        |     |                          |
          |     |Muratsuchi, Stone         |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner, Maienschein       |     |                          |
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           SUMMARY  :  Prohibits wage garnishments for the collection of  
          student loan debt unless the loan was made, insured, or  
          guaranteed by the United States government, pursuant to  
          specified programs.  Specifically,  this bill  :  

          1)Prohibits the issuance earnings withholding orders for  
            purposes of collecting a judgment for the collection of debt  
            that the judgment debtor proves is from a student loan that is  
            not made, insured, or guaranteed by the United States  
            government pursuant to the Federal Family Education Loan  
            Program or the William D. Ford Federal Direct Loan Program. 

          2)Requires a court to terminate an earnings withholding order  
            issued on or after January 1, 2014, upon proof by the judgment  
            debtor that the earnings withholding order enforces a judgment  
            in violation of this section. 

           EXISTING LAW  :

          1)Provides that service of an earnings withholding order creates  
            a lien upon the earnings of the judgment debtor that are  
            required to be withheld pursuant to the order, and upon all  
            property of the employer subject to the enforcement of a money  
            judgment in the amount required to be withheld pursuant to  
            such order.  Also provides that the lien continues for a  
            period of one year from the date the earnings of the judgment  
            debtor become payable unless the amount required to be  
            withheld pursuant to the order is paid as required by law.  








                                                                  AB 233
                                                                  Page  2




          2)Specifies the procedural requirements by which a judgment  
            debtor may claim an exemption from the earnings withholding  
            order, and by which a judgment creditor may contest a claim of  
            exemption in order to obtain a court hearing to evaluate the  
            merit of the claim.  



          3)Provides that the amount of earnings of a judgment debtor  
            exempt from the levy of an earnings withholding order, except  
            as specified, shall be that amount that may not be withheld  
            from the judgment debtor's earnings under federal law in  
            Section 1673(a) of Title 15 of the United States Code.  



          4)Provides that the maximum part of the aggregate disposable  
            earnings of an individual for any workweek which is subject to  
            garnishment may not exceed 25 per centum of his or her  
            disposable earnings for that week, or the amount by which his  
            or her disposable earnings for that week exceed 30 times the  
            federal minimum hourly wage in effect at the time the earnings  
            are payable, whichever is less.  



          5)Exempts from levy, with certain categorical exceptions, the  
            portion of a judgment debtor's earnings which the judgment  
            debtor proves is necessary for the support of the judgment  
            debtor or his or her family supported in whole or in part by  
            the judgment debtor.  

           FISCAL EFFECT  :  None 

           COMMENTS  :  Under existing law, a judgment creditor may obtain an  
          earnings withholding order (also known as a wage garnishment  
          order) from a court in order to collect from a judgment debtor.   
          The order is served upon the judgment debtor's employer who, in  
          turn, is obligated to withhold from the employee's wages the  
          amount specified in the order.  Federal law prohibits the amount  
          that the employer may withhold in any given pay period to 25% of  
          the employee's disposable income for that period.  In addition  








                                                                  AB 233
                                                                  Page  3


          to this federal limitation, state law permits a court to reduce  
          the amount of the garnishment if it is necessary for the support  
          of the debtor and his or her family.  Existing law also sets  
          forth the procedural requirements that a debtor must follow in  
          order to claim an exemption for a wage garnishment order, as  
          well as the means by which the creditor may contest the merits  
          of a claim for exemption. 

          This bill would create a new exemption under the wage  
          garnishment law by prohibiting the issuance of an earnings  
          withholding order to collect on a student loan debt, if the  
          debtor can prove that the debt is from a loan not made, insured,  
          or guaranteed by a federal student loan program.  Federal  
          student loans - which constitute the majority of student loans -  
          would still be subject to wage garnishment.  According to the  
          author, these federal loan programs already have mechanisms in  
          place to offer students deferments and forbearances, and  
          therefore would not be covered by this bill.  It should be  
          stressed that this bill does not seek to absolve the student  
          debtor of his or her obligation, or to prevent a creditor from  
          recovering by means other than wage garnishment.  It would only  
          remove the tool of wage garnishment.  The author hopes that by  
          restricting this option, the lender will have greater incentive  
          to work out a reasonable payment plan with the student debtor. 

          This bill prohibits the issuing of a wage garnishment order if  
          the judgment debtor proves that the underlying debt is from a  
          student loan that was not made, insured, or guaranteed pursuant  
          to a federal student loan program.  Under existing law, an  
          earnings withholding order is issued by a levying officer upon  
          receiving an application submitted by a judgment creditor.  The  
          levying officer then serves the withholding order upon the  
          debtor's employer, who is obligated to comply with the order,  
          and the employer in turn serves notice upon the debtor.  Under  
          existing law, a debtor may claim an exemption for any portion of  
          the withholding amount that the debtor proves is necessary for  
          the support of the debtor or the debtor's family.  Code of Civil  
          Procedure Section 706.105 sets forth the procedure by which a  
          debtor may make a claim of exemption.  
           
           According to the author, total student loan indebtedness is now  
          over $1 trillion.  Many recent graduates, the author contends,  
          postpone buying a home or starting a family.  In addition, the  
          "sluggish job recovery has led to increased underemployment,  








                                                                  AB 233
                                                                  Page  4


          with debt-saddled students taking any job available.  Indeed, in  
          the last decade, starting salaries for college graduates fell 15  
          percent, [while] debt for new graduates increased 24 percent."   
          The author argues that while there are many programs in place to  
          help people with federal student loans - such as deferments and  
          forbearances - this "is not the case with private loans.  A  
          creditor can, and often does, garnish 25% of a person's  
          disposable income, even though student loan debt cannot be  
          discharged in a bankruptcy - meaning student loan debt can never  
          go away . . .  By [prohibiting] garnishment of wages for many  
          student loans, creditors will be more inclined to work with the  
          debtor and figure out a repayment plan that the student can  
          manage, benefitting thousands of young underemployed Americans  
          with oppressive education loans."

          The California Association of Collectors (CAC) and the  
          California Bankers Association (CBA) oppose this bill because it  
          "inexplicably singles out one form of debt from wage  
          garnishment, while similar forms of debt create a larger burden  
          for student loan borrowers."  First, the opponents argue that  
          the "bill targets a loan product that occupies only a fraction  
          of the student loan market compared to the federal student loan  
          program."  Federal loan programs account for about 85% of the  
          market, while the "private" loans - i.e. those not part of a  
          government student loan program - constitute only about 6% of  
          the market.  While the private student loans have a much smaller  
          share, CAC and CBA claim that "they include rigorous credit  
          underwriting that responsibly assesses a borrower's willingness  
          and capacity to repay the loan, which best prepares borrowers  
          for successful repayment.  On the other hand, federal student  
          loans provide access to easy credit without any credit  
          evaluation or an ability to pay determination."  CAC and CBA  
          argue that private student loans serve an important function by  
          filling the gap created by "increasing tuition rates without  
          commensurate financial aid," and they claim that these private  
          loans, like the federal loans, "also have competitive rates with  
          flexible repayment plans."  If this bill passes, the opponents  
          claim that "it will effectively render delinquent private  
          student loan debt uncollectable."  If that happens, "the  
          availability of [private] loans will decrease and fewer students  
          will have an opportunity to go to college and graduate school as  
          a result." 
           









                                                                 AB 233
                                                                  Page  5


          Analysis Prepared by :    Thomas Clark / JUD. / (916) 319-2334 


                                                                FN: 0000098