BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 551|
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THIRD READING
Bill No: SB 551
Author: Gaines (R)
Amended: As introduced
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 5/7/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SUBJECT : Writs of execution: judgment debtor
SOURCE : California Association of Collectors
DIGEST : This bill allows judgment debtors who seek a writ of
execution to enforce a money judgment to omit the names of
judgment debtors whose liability to the judgment creditor has
ceased in one of two ways: (1) the debtor has filed for Chapter
11 bankruptcy, as specified, and the bankruptcy court grants an
automatic stay or a discharge that applies to the judgment; or
(2) the judgment creditor files an acknowledgement of
satisfaction of judgment with regard to the judgment debtor.
ANALYSIS :
Existing law:
1. Defines "affidavit of identity" as an affidavit or
declaration executed by a judgment creditor, under penalty of
perjury, that is filed with the clerk of the court in which
the judgment is entered at the time the judgment creditor
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files for a writ of execution or an abstract of judgment.
The affidavit of identity must set forth the case name and
number, the name of the judgment debtor stated in the
judgment, the additional name or names by which the judgment
debtor is known, and the facts upon which the judgment
creditor has relied in obtaining the judgment debtor's
additional name or names. The affidavit of identity shall
not include the name or names of persons, including any
corporations, partnerships, or any legal entities not
separately named in the judgment in which the judgment debtor
is a partner, shareholder, or member, other than the judgment
debtor. (Code of Civil Procedure (CCP) Section 680.135)
2. Provides, in relevant part, that after entry of a money
judgment, and upon application of the judgment creditor, a
writ of execution shall be issued by the clerk of the court
and shall be directed to the levying officer in the county
where the levy is to be made and to any registered process
server. Writs may be issued successively until the money
judgment is satisfied, except as specified. (CCP Section
699.510(a))
3. Requires, in relevant part, the writ of execution be issued
in the name of the judgment debtor as listed on the judgment
and include the additional name or names, and the type of
legal entity, by which the judgment debtor is known, as set
forth in the affidavit of identity, as defined, filed by the
judgment creditor with the application for issuance of the
writ of execution. (CCP Section 699.510(c)(1))
4. Provides that in any case where the writ of execution lists
any name other than that listed on the judgment, the person
in possession or control of the levied property, if other
than the judgment debtor, shall not pay to the levying
officer the amount or deliver the property being levied upon
until being notified to do so by the levying officer. The
levying officer may not require the person, if other than the
judgment debtor, in possession or control of the levied
property to pay the amount or deliver the property levied
upon until the expiration of 15 days after service of notice
of levy. (CCP Section 699.510(c)(2))
5. Provides that, where a person who is not the judgment debtor
has property erroneously subject to an enforcement of
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judgment proceeding based upon an affidavit of identity, the
person shall be entitled to the recovery of reasonable
attorney's fees and costs from the judgment creditor incurred
in releasing the person's property from a writ of execution,
in addition to any other damages or penalties to which an
aggrieved person may be entitled to by law, including
specified law relating to third party claims. (CCP Section
699.510(c)(3))
6. Provides that the writ of execution must require the levying
officer to whom it is directed to enforce the money judgment
and requires the writ of execution to contain specified
information, including, among other things, whether the writ
of execution includes any additional names of the judgment
debtor pursuant to an affidavit of identity, as specified.
(CCP Section 699.520)
7. Permits a money judgment to be satisfied by payment of the
full amount required to satisfy the judgment or by acceptance
by the judgment creditor of a lesser sum in full satisfaction
of the judgment. (CCP Section 724.010(a))
8. Provides that where a money judgment is satisfied by payment
to the judgment creditor by check or other form of noncash
payment that is to be honored upon presentation by the
judgment creditor for payment, the obligation of the judgment
creditor to give or file an acknowledgment of satisfaction of
judgment arises only when the check or other form of noncash
payment has actually been honored upon presentation for
payment. (CCP Section 724.010(c))
This bill provides that the judgment creditor may omit the name
of a judgment debtor from the application for a writ of
execution, if the liability of that judgment debtor has ceased
with regard to the judgment. For purposes of this provision, a
judgment debtor's liability has ceased with regard to a judgment
if, before the writ of execution is issued, either of the
following occur:
The judgment debtor files a petition in bankruptcy pursuant
to Title 11 of the United States Code, and the bankruptcy
court grants an automatic stay or a discharge that applies to
the judgment; or
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The judgment creditor files an acknowledgement of
satisfaction of judgment with read to the judgment debtor, as
specified.
Background
Under existing law, the most common procedure for collection of
a money judgment is execution. A writ of execution from the
court requires a levying officer to enforce the judgment and the
officer enforces the judgment by levying on the property, i.e.,
by seizing the property under the writ, either constructively or
actually. (8 Witkin, California Procedure Enforcement of
Judgment Section 99)
Generally, the process begins after entry of a money judgment
and on the application of the judgment creditor, whereby the
clerk of the court must issue a writ of execution, directed to
the levying officer in the county where the levy is to be made
and to any registered process server. The writ of execution
must be issued in the name of the judgment debtor listed on the
judgment, but may also include the additional name or names by
which the judgment debtor is known, as set forth in an affidavit
of identity filed by the judgment creditor with the application
for issuance of the writ. Additionally, the court must approve
the affidavit of identity before the clerk issues a writ of
execution containing the additional name or names. (CCP Section
699.510(a), (c)(1))
At the time that the judgment creditor files for a writ of
execution, the judgment creditor must execute an affidavit of
identity, under penalty of perjury, setting forth certain
information, including the name of the judgment debtor stated in
the judgment and the additional name or names by which the
judgment debtor is known, among other things. (CCP Section
680.135)
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 5/9/13)
California Association of Collectors (source)
ARGUMENTS IN SUPPORT : According to the author's office, there
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is no current procedure to leave off a judgment debtor from a
Writ of Execution, even if that judgment debtor is satisfied or
bankrupt, and some counties, including Los Angeles, will not
remove that Judgment Debtor without a specific court order to do
so. This creates confusion and, often, mistakes in collecting
because the banks or other collecting agencies are not aware
that the debt has been satisfied and attempt to collect that
debt again. This can lead to bank accounts being debited in
error, and other mistakes in collection. This bill seeks to
remedy that problem by allowing the satisfied debtors be left
off of the writ.
AL:k 5/9/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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