BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 233 (Wieckowski)
          As Amended June 10, 2013
          Hearing Date: June 18, 2013
          Fiscal: No
          Urgency: No
          TMW


                                        SUBJECT
                                           
                   Wage Garnishment:  Restrictions:  Student Loans

                                      DESCRIPTION  

          This bill would prohibit the use of an earnings withholding  
          order for purposes of enforcing a judgment for the collection of  
          debt that the judgment debtor proves is from a student loan that  
          is not made, insured, or guaranteed through a federal student  
          loan program. This bill would require a court to terminate an  
          earnings withholding order issued on or after July 1, 2014, upon  
          proof by the judgment debtor that the earnings withholding order  
          enforces a judgment for collection of non-federal program  
          student loan debt.

          This bill would also establish procedures for a judgment debtor  
          to request to terminate or modify an earnings withholding order  
          enforcing a judgment based on a non-federal program student loan  
          debt.

                                      BACKGROUND  

          In California, under the Wage Garnishment Law, a judgment  
          creditor can seek garnishment of a judgment debtor's wages to  
          satisfy a court judgment.  The Wage Garnishment Law provides for  
          exemptions from wage garnishment, such as for necessities for  
          living and child support.  However, California consumers facing  
          large private student loan debt are not shielded from wage  
          garnishment.

          This author-sponsored bill would prohibit wage garnishment for  
          the collection of debt that the judgment debtor proves is from a  
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          student loan that is not made, insured, or guaranteed through a  
          federal student loan program.  This bill would also require a  
          court to terminate an earnings withholding order issued on or  
          after July 1, 2014, upon proof by the judgment debtor that the  
          earnings withholding order enforces a judgment for collection of  
          non-federal program student loan debt.  This bill would  
          establish a new process for a judgment debtor to request the  
          court to terminate or modify an earnings withholding order  
          issued based on a judgment for non-federal program student loan  
          debt.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the Wage Garnishment Law, establishes procedures  
          regarding the garnishment of a judgment debtor's wages.  (Code  
          Civ. Proc. Sec. 706.010 et seq.)  
           
            Existing law  provides that "disposable earnings" means the  
          portion of an individual's earnings that remains after deducting  
          all amounts required to be withheld by law.  (Code Civ. Proc.  
          Sec. 706.011(a).)  

          Existing law  provides that "earnings" means compensation payable  
          by an employer to an employee for personal services performed by  
          such employee, whether denominated as wages, salary, commission,  
          bonus, or otherwise.  (Code Civ. Proc. Sec. 706.011(b).)  

           Existing law  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.  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.  (Code Civ. Proc. Sec. 706.029.)

           Existing law  restricts the amount of garnishment of a judgment  
          debtor's disposable earnings for any workweek to the lesser of  
          25 percent of the individual's disposable earnings for that week  
          or the amount by which the individual's disposable earnings for  
          that week exceed 40 times the state minimum hourly wage in  
          effect at the time the earnings are payable.  (Code Civ. Proc.  
          Sec. 706.050.)
           
          Existing law  exempts from garnishment the portion of the  
                                                                      



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          judgment debtor's wages proven to be necessary for the support  
          of the judgment debtor or the judgment debtor's family supported  
          in whole or in part by the judgment debtor.  Existing law  
          provides that this exemption is not available for debt incurred  
          relating to the payment of attorney's fees under the Family  
          Code, as specified, for debt incurred for personal services  
          rendered by an employee or former employee of the judgment  
          debtor, for debt relating to a child support order, as  
          specified, or for debt relating to a state tax order.  (Code  
          Civ. Proc. Sec. 706.051.)

           This bill  would prohibit the use of an earnings withholding  
          order for purposes of enforcing 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  
          (20 U.S.C. Sec. 1071 et seq.) or the William D. Ford Federal  
          Direct Loan Program (34 C.F.R. 685.100). 

           This bill  would require a court to terminate or modify an  
          earnings withholding order issued on or after July 1, 2014, if  
          the earnings withholding order enforces a judgment based on a  
          non-federal program student loan debt. 

           This bill  would authorize a judgment debtor to request to  
          terminate an earnings withholding order enforcing a judgment  
          based on a non-federal program student loan debt. 

           This bill would provide that a judgment creditor is liable to  
          the judgment debtor for all amounts collected by the judgment  
          creditor pursuant to an earnings withholding order issued to  
          enforce a judgment based on a non-federal program student loan  
          debt.

           This bill  would require a judgment creditor to specify in an  
          application for issuance of an earnings withholding order  
          whether the judgment is based in whole or in part on a claim for  
          debt from a non-federal program student loan.

           This bill  would require a judgment debtor who requests to  
          terminate an earnings withholding order enforcing a judgment  
          based upon a non-federal program student loan to include in the  
          request the following information:
           the current mailing address of the judgment debtor;
           the name and address of the judgment creditor;
           the court in which the judgment was entered and the date the  
                                                                      



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            judgment was entered;
           a statement, under penalty of perjury, of whether the judgment  
            is based in whole or in part on a claim for a non-federal  
            program student loan. Documents supporting the existence of  
            the student loan debt must be attached to the request;
           whether an earnings withholding order was issued to enforce a  
            judgment based on a non-federal program student loan. A copy  
            of the order must be attached to the request;
           the date of issuance of a writ of execution to the county  
            where the earnings withholding order is sought;
           the total amount required to satisfy the earnings withholding  
            order on the date of issuance;
           the name and address of the employer to whom the earnings  
            withholding order was directed; and
           the name and address of the person to whom the order directs  
            the levying officer to pay the money withheld.

           This bill  would require the request to terminate an earnings  
          withholding order enforcing a judgment for a non-federal program  
          student loan debt to be made by filing with the levying officer  
          an original and one copy of the request.

           This bill  , upon the filing of a request, would require the  
          levying officer to send to the judgment creditor, at the address  
          stated in the application for the earnings withholding order, by  
          first-class mail, postage prepaid, both of the following:  (1) a  
          copy of the request; and (2) a notice of the request, which must  
          state that the request has been filed and that the earnings  
          withholding order will be terminated or modified to subtract  
          from the amount to be withheld the portion that is based on a  
          judgment to collect a non-federal program student loan debt,  
          unless a notice of opposition to the request is filed with the  
          levying officer by the judgment creditor within 10 days after  
          the date of the mailing of the notice of the request.

           This bill  would require a judgment creditor, who desires to  
          contest a request to terminate an earnings withholding order  
          enforcing a judgment for non-federal program student loan debt,  
          to file with the levying officer a notice of opposition to the  
          request within 10 days after the date of the mailing of the  
          notice of the request.

           This bill  would provide that if a notice of opposition to a  
          request is filed with the levying officer within the 10-day  
          period, the judgment creditor is entitled to a hearing on the  
          request not later than 30 days from the date a notice of motion  
                                                                      



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          is filed by the judgment creditor.
            
           This  bill would require the judgment creditor to give written  
          notice of the hearing to the levying officer and serve a notice  
          of the hearing and a copy of the notice of opposition to the  
          request on the judgment debtor and, if indicated in the request,  
          on the attorney for the judgment debtor. 

           This bill  would provide that service is deemed made when the  
          notice of the hearing and a copy of the notice of opposition to  
          the request are deposited in the mail, postage prepaid,  
          addressed to the judgment debtor at the address stated in the  
          request and, if service on the attorney for the judgment debtor  
          was indicated in the request, to the attorney at the address  
          stated in the request. 

           This bill  would require the judgment creditor to file proof of  
          the service with the court. 

           This bill  would require the levying officer to file the request  
          and the notice of opposition to the request with the court after  
          the levying officer receives the notice of the hearing and  
          before the date set for the hearing.

           This bill  would provide that if the levying officer does not  
          receive a notice of opposition to the request within the 10-day  
          period after the date of mailing of the notice of request and a  
          notice of the hearing not later than 10 days after the filing of  
          the notice of opposition to the request, the levying officer  
          must serve on the employer one of the following:  (1) a notice  
          that the earnings withholding order has been terminated if the  
          entire amount to be withheld under the order is based on a  
          judgment to collect a non-federal program student loan debt; or  
          (2) a modified earnings withholding order that reflects the  
          subtraction from the amount to be withheld of the portion that  
          is based on a judgment to collect a non-federal program student  
          loan debt.

           This bill  would require, if, after hearing, the court orders  
          that the earnings withholding order be terminated or modified,  
          the clerk to transmit a certified copy of the order to the  
          levying officer who must serve on the employer of the judgment  
          debtor:  (1) a notice that the earnings withholding order has  
          been terminated; or (2) a copy of the modified earnings  
          withholding order.  

                                                                      



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           This bill  would authorize the court to order that the earnings  
          withholding order be terminated as of a date that precedes the  
          date of hearing; if the court determines that an amount withheld  
          pursuant to the earnings withholding order should be paid to the  
          judgment debtor, the court would be required to make an order  
          directing the person who holds that amount to pay it promptly to  
          the judgment debtor.

           This bill  would prohibit a judgment creditor, whose earnings  
          withholding order is terminated or modified, from applying for  
          another earnings withholding order to enforce the same judgment  
          or portion thereof that was determined to be based on a  
          non-federal program student loan.

           This bill  would provide that if an employer has withheld and  
          paid over amounts pursuant to an earnings withholding order  
          after the date of termination of the order but prior to the  
          receipt of notice of its termination, the judgment debtor may  
          recover those amounts only from the levying officer if the  
          levying officer still holds those amounts or, if those amounts  
          have been paid over to the judgment creditor, from the judgment  
          creditor.

           This bill  would require an employer, who has withheld amounts  
          pursuant to the earnings withholding order after termination of  
          the order but has not paid over those amounts to the levying  
          officer, to pay those amounts to the judgment debtor.

           This bill  would authorize an appeal from any court order  
          regarding the request to terminate an earnings withholding order  
          enforcing a judgment based upon a non-federal program student  
          loan, would provide that an appeal by the judgment creditor from  
          an order modifying or terminating the earnings withholding order  
          would not stay the order from which the appeal is taken, and,  
          notwithstanding the appeal, would provide that until the order  
          modifying or terminating the earnings withholding order is set  
          aside or modified on appeal, the order modifying or terminating  
          the earnings withholding order will be given the same effect as  
          if the appeal had not been taken.

           This bill  would specify that the procedures for the request to  
          terminate an earnings withholding order enforcing a judgment  
          based upon a non-federal program student loan would not apply to  
          a withholding order for support or a withholding order for  
          taxes.

                                                                      



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                                        COMMENT
           
          1.  Stated need for the bill 
          
          The author writes:
          
            AB 233 would permit a debtor to claim an exemption from a wage  
            garnishment when the collection is for a student loan that was  
            not made, insured or guaranteed by the United States  
            Government. 

            Student loan debt is not dischargeable in bankruptcy;  
            therefore the debtor cannot get rid of the debt and will have  
            to pay back his loan eventually.  By permitting the prevention  
            of 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.

          2.  Prohibiting wage garnishment for non-federal program student  
            loan debt  

          Existing law authorizes a judgment creditor to apply for an  
          earnings withholding order to levy against a judgment debtor's  
          wages in order to collect payment of the judgment.  This bill  
          would prohibit issuance of an earnings withholding order for the  
          collection of debt that the judgment debtor proves is from a  
          student loan that is not made, insured, or guaranteed through a  
          federal student loan program.  This bill would also require a  
          court to terminate an earnings withholding order issued on or  
          after July 1, 2014, if the judgment debtor files a request to  
          terminate or modify an earnings withholding order enforcing a  
          judgment based on non-federal program student loan debt and  
          provides proof that the earnings withholding order enforces a  
          judgment for collection of non-federal program student loan  
          debt.

          The author states that "[a] college degree has become ever more  
          crucial in order to succeed in the workforce.  In the past  
          decade, education debt has soared 500 [percent].  Student loan  
          indebtedness is now over $1 trillion.  Education debt outpaces  
          credit card debt as the leading source of household debt.  These  
          mortgage-sized loans cause many graduates to postpone buying a  
          home or starting a family.  The sluggish job recovery has led to  
          increased underemployment, with debt-saddled students taking any  
                                                                      



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          job available.  Indeed, in the last decade, starting salaries  
          for college graduates fell 15 percent, debt for new graduates  
          increased 24 percent."

          The author notes that there are many programs in place to help  
          people with federal student loans, and federal student loan  
          borrowers can get multiple types of deferments and forbearances.  
           Unemployment forbearance is even open for people who are  
          employed less than 30 hours a week.  However, the author states  
          that "[t]his is not the case with private student loans.  A  
          creditor can, and often does, garnish 25 [percent] 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.  Other states, like Texas and Pennsylvania prohibit the  
          garnishment of student loans and other unsecured debt."

          In support, the California Labor Federation argues that  
          "[s]tudent loan debt is not dischargeable in bankruptcy;  
          therefore the debtor cannot get rid of the debt and will have to  
          pay back his loan eventually.  By preventing the 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."

          A recent report on private student loan debt issued by the  
          Consumer Financial Protection Bureau notes that in the past  
          decade, private student loans grew from less than $5 billion in  
          2001, spiked at over $20 billion in 2008, then contracted to  
          less than $6 billion in 2011.  (Consumer Financial Protection  
          Bureau, Private Student Loans, U.S. Dept. of Education (Aug. 29,  
          2012) < http://files.consumerfinance.gov/f/201207_cfpb_  
          Reports_Private-Student-Loans.pdf> [as of June 11, 2013] p. 3.)   
          Further, the report states that "[f]rom 2005-2007, lenders  
          increasingly marketed and disbursed loans directly to students,  
          reducing the involvement of schools in the process; indeed  
          during this period, the percentage of loans to undergraduates  
          made without school involvement or certification of need grew  
          from 18 [percent] to over 31 [percent].  As a result, many  
          students borrowed more than they needed to finance their  
          education.  Additionally, during this period, lenders were more  
          likely to originate loans to borrowers with lower credit scores  
          than they had previously been.  These trends made private  
          student loans riskier for consumers."  (Ibid.)  As of the date  
          of the report, Americans owed more than $150 billion in  
          outstanding private student loan debt.  (Ibid.)
                                                                      



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          The report stated that private student loan borrowers do not  
          have the same repayment options as federal student loan  
          borrowers, "including the ability to cap payments as a  
          percentage of discretionary income and remain in good standing.   
          While this may lead to greater total payments over the life of  
          these loans, the borrower can more easily avoid the economic  
          consequences of delinquency or default. . . . [M]any distressed  
          student loan borrowers [are] facing trouble making payments on  
          private student loans due to limited options for alternate  
          payment options.  Consumers, as well as businesses, have been  
          able to restructure other types of debts through bankruptcy as a  
          last resort.  But with less guaranteed flexibility compared to  
          federal loans and very limited bankruptcy options compared to  
          other consumer loans, private student loan borrowers facing  
          tough economic times may be challenged to emerge as productive  
          contributors to our society."  (Id. at p. 87.)

          This bill seeks to provide wage garnishment protection for  
          individuals with non-federal program student loan debt who have  
          defaulted on their loans.  Notably, this bill would not  
          eliminate the student loan debt or judgment based thereon; an  
          individual who is subject to an outstanding judgment would still  
          be liable to the judgment creditor.  Given the surge of college  
          graduates who face underemployment or unemployment due to the  
          recent job market crisis and are unable to otherwise arrive at a  
          payment plan that is acceptable to the student loan creditor, it  
          is arguably important to provide these individuals with the  
          ability to protect their wages from garnishment.  

          3.  Procedures to request termination of earnings withholding  
            order  

          Existing law provides that a judgment debtor may claim that a  
          portion of his or her earnings should be exempt from an earnings  
          withholding order.  This bill would not create an exemption from  
          an earnings withholding order but, instead, would prohibit the  
          use of an earnings withholding order as a method of enforcing a  
          judgment based upon a private student loan.  For this reason,  
          this bill would not add to the existing procedures of claiming  
          an exemption from the earnings withholding order.  Instead, this  
          bill would utilize procedures similar to an exemption to allow a  
          judgment debtor to alert the court that the judgment is based  
          upon a qualifying student loan and, therefore, no earnings  
          withholding order should be issued to collect on the judgment.   
          The judgment debtor would be required to provide documentation  
                                                                      



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          to the court that the judgment was based upon a non-federal  
          program student loan, and this bill would provide the judgment  
          creditor with the opportunity to oppose the request to terminate  
          or modify the earnings withholding order.  Notably, this bill  
          would authorize the court to modify the earnings withholding  
          order if the judgment included amounts not based upon a  
          non-federal program student loan, which would allow the judgment  
          creditor to continue to collect wage garnishment for other  
          outstanding amounts owed by the judgment debtor.

          4.  Opposition concerns  

          The California Association of Collectors and the California  
          Bankers Association, in opposition, argue that this bill  
          "inexplicably singles out one form of debt from wage  
          garnishment, while similar forms of debt create a larger burden  
          for student loan borrowers."  Opponents note that private  
                student loans only account for six percent of the market and  
          "include rigorous credit underwriting that responsibly assesses  
          a borrower's willingness and capacity to repay the loan, which  
          best prepares borrowers for successful repayment."  Furthermore,  
          opponents argue that this bill "will effectively render  
          delinquent private student loan debt uncollectible," and assert  
          that "the availability of [private] loans will decrease and  
          fewer students will have an opportunity to go to collect and  
          graduate as a result."  

          In response, the author argues that private loans comprised  
          about 24 percent of the nation's total education loan volume in  
          2008.  Further, though this represents a small percentage of  
          overall student loans, the yearly growth of private loans is  
          outpacing that of federal loans.  The author asserts that the  
          main reason for the increased supply of private student loans is  
          the profitability of the business; the private loan market has  
          been profitable primarily because originators sell the loans  
          with the intention of packaging them for investors.  The author  
          notes that the market for securitized student loans jumped 76  
          percent in 2006, and that private student loans are developed  
          for repackaging rather than to provide the most affordable and  
          sustainable products for borrowers.  
          
          The author also notes that the likelihood of a person defaulting  
          on a student loan with the expectation that a judgment creditor  
          could not garnish the person's wages is unlikely.  Defaulting on  
          a loan wreaks havoc on a person's credit score and would  
          severely affect the ability of a person to obtain a mortgage or  
                                                                      



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          any credit whatsoever.  The author argues that the consequences  
          of default are so great that a person earning a comfortable  
          salary would not sit idly by while his loans went into default  
          or collections.  

          The author further notes that wage garnishment is only one tool  
          a creditor/collector may use to get a debt repaid.  The author  
          states that assuming there was a graduate who existed who was  
          earning more than enough to repay a debt but allowed the loan to  
          default and go into collections anyhow, creditors and collectors  
          would still able to use a bank levy or seizure of personal  
          property to satisfy the debt.
           
             
           Support  :  Associated Students of University of California,  
          Davis; California Council on Economic Education; California  
          Labor Federation; Children's Advocacy Institute at the  
          University of San Diego School of Law; Latino Democratic Club;  
          Legal Aid Association of California; Veterans Caucus of the  
          California Democratic Party
          
           Opposition  :  California Association of Collectors, Inc.;  
          California Bankers Association

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  AB 508 (Calderon) would prohibit  
          the issuance of an earnings withholding order or the levy of a  
          bank account of a homeless veteran in order to collect amounts  
          owed by the veteran relating to specified civil and criminal  
          fees, fines, forfeitures, or penalties.  AB 508 is currently in  
          the Senate Committee on Appropriations.

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Committee on Judiciary (Ayes 7, Noes 2)
          Assembly Floor (Ayes 50, Noes 23)

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