BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 551|
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UNFINISHED BUSINESS
Bill No: SB 551
Author: Gaines (R)
Amended: 7/3/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 5/7/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
SENATE FLOOR : 36-0, 5/20/13 (Consent)
AYES: Anderson, Beall, Berryhill, Block, Calderon, Cannella,
Corbett, Correa, De León, DeSaulnier, Evans, Fuller, Gaines,
Galgiani, Hancock, Hernandez, Hill, Hueso, Huff, Jackson,
Knight, Leno, Lieu, Liu, Monning, Nielsen, Padilla, Pavley,
Roth, Steinberg, Torres, Walters, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Emmerson, Lara, Price, Vacancy
ASSEMBLY FLOOR : 77-0, 8/8/13 (Consent) - See last page for vote
SUBJECT : Writs of execution: judgment debtor
SOURCE : California Association of Collectors
DIGEST : This bill clarifies that a judgment debtor whose
liability for a judgment has ceased shall not subsequently be
named by the judgment creditor on an application for writ of
execution or renewal of judgment.
Assembly Amendments provide guidance to creditors, debtors,
court clerks, and levying officers that the name of a person
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whose name appears on the judgment may be omitted from a
subsequent writ of execution, and specify that provisions also
apply identically to an application for renewal of judgment.
ANALYSIS :
Existing law:
1. Provides that a money judgment may 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.
2. Requires the court clerk to enter satisfaction of a money
judgment in the register of actions when the following occur:
A. A writ is returned satisfied for the full amount of a
lump-sum judgment.
B. An acknowledgment of satisfaction of judgment is filed
with the court.
C. The court orders entry of satisfaction of judgment.
3. Requires the judgment creditor to immediately file with the
court an acknowledgment of satisfaction of judgment when a
money judgment is satisfied, except in where the judgment is
satisfied in full pursuant to a writ.
4. Requires an application for renewal of the judgment to
include all of the following:
A. The title of the court where the judgment is entered
and the cause and number of the action.
B. The date of entry of the judgment and of any renewals
of the judgment and where entered in the records of the
court.
C. The name and address of the judgment creditor and the
name and last known address of the judgment debtor.
D. In the case of a money judgment, the information
necessary to compute the amount of the judgment as
renewed, and in the case of a judgment for possession or
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sale of property, a description of the performance
remaining due.
5. Provides that after entry of a money judgment, and upon
application of the judgment creditor, a writ of execution be
issued by the clerk of the court and be directed to the
levying officer in the county where the levy is to be made
and to any registered process server. Allows writs to be
issued successively until the money judgment is satisfied,
except as specified.
6. Requires the writ of execution to be issued in the name of
the judgment debtor as listed on the judgment and to 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.
7. 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, will 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. Prohibits
the levying officer from requiring a 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.
This bill:
1. Requires the judgment creditor to omit the name of a judgment
debtor from an application for a writ of execution if the
liability of that judgment debtor has ceased with regard to
the judgment, including but not limited to the following
occurrences:
A. The judgment debtor has obtained a discharge of the
judgment pursuant to Title 11 of the United States Code
and notice thereof has been filed with the court.
B. The judgment creditor has filed an acknowledgement of
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satisfaction with regard to the judgment debtor pursuant
to Chapter 1 (commencing with Code of Civil Procedure
(CCP) Section 724.010) of Division 5 of the CCP.
2. Requires the judgment creditor to also omit the name of a
judgment debtor from an application for renewal of judgment
if the liability of that judgment debtor has ceased with
regard to the judgment, including but not limited to the same
occurrences described above.
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.
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.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 8/9/13)
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California Association of Collectors (source)
ARGUMENTS IN SUPPORT : According to the author's office, there
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.
ASSEMBLY FLOOR : 77-0, 8/8/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chesbro, Conway, Cooley, Dahle, Daly,
Dickinson, Donnelly, Eggman, Fong, Fox, Frazier, Beth Gaines,
Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray, Grove,
Hagman, Hall, Harkey, Roger Hernández, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Stone, Ting, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Chávez, Vacancy, Vacancy
AL:k 8/12/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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