Code of Civil Procedure - CCP - CCP § 706.105

Summary

(a) A judgment debtor may claim an exemption under Section 706.051 under either of the following circumstances: (1) No prior hearing has been held with respect to the earnings withholding order. (2) There has been a material change in circumstances since the time of the last prio

Text

(a)
A judgment debtor may claim an exemption under Section 706.051 under either of the following circumstances:
(1)
No prior hearing has been held with respect to the earnings withholding order.
(2)
There has been a material change in circumstances since the time of the last prior hearing on the earnings withholding order.
(b)
A claim of exemption shall be made by filing with the levying officer an original and one copy of (1) the judgment debtor’s claim of exemption and (2) the judgment debtor’s financial statement.
(c)
Upon filing of the claim of exemption, the levying
officer shall promptly send to the judgment creditor, at the address stated in the application for the earnings withholding order, by first-class mail, postage prepaid, all of the following:
(1)
A copy of the claim of exemption.
(2)
A copy of the financial statement.
(3)
A notice of claim of exemption. The notice shall state that the claim of exemption has been filed and that the earnings withholding order will be terminated, or modified to reflect the amount of earnings claimed to be exempt in the claim of exemption, unless a notice of opposition to the claim of exemption is filed with the levying officer by the judgment creditor within 10 days after the date of the mailing of the notice of claim of exemption.
(d)
A judgment creditor who desires to
contest a claim of exemption shall, within 10 days after the date of the mailing of the notice of claim of exemption, file with the levying officer a notice of opposition to the claim of exemption.
(e)
(1)
If a notice of opposition to the claim of exemption is filed with the levying officer within the 10-day period, the judgment creditor is entitled to a hearing on the claim of exemption. If the judgment creditor desires a hearing on the claim of exemption, the judgment creditor shall file a notice of motion for an order determining the claim of exemption with the court within 10 days after the date the levying officer mailed the notice of claim of exemption. If the notice of motion is so filed, the hearing on the motion shall be held not later than 30 days from the date the notice of motion was filed unless continued by the court for good cause. Where the judgment upon which the writ is issued is for personal debt, as
defined in subdivision (d) of Section 683.110, if the hearing is delayed by the court and cannot be set within 30 days of notice of the motion, a party may seek by ex parte application, and the court shall issue, an order staying any levy or garnishment with respect to the property subject to the claim of exemption until the hearing occurs. At the time prescribed by subdivision (b) of Section 1005, the judgment creditor shall give written notice of the hearing to the levying officer and shall serve a notice of the hearing and a copy of the notice of opposition to the claim of exemption on the judgment debtor and, if the claim of exemption so requested, on the attorney for the judgment debtor. Service is deemed made when the notice of the hearing and a copy of the notice of opposition to the claim of exemption are deposited in the mail, postage prepaid, addressed to the judgment debtor at the address stated in the claim of exemption and, if service on the attorney for the judgment debtor was requested in the
claim of exemption, to the attorney at the address stated in the claim of exemption. The judgment creditor shall file proof of the service with the court. After receiving the notice of the hearing and before the date set for the hearing, the levying officer shall file the claim of exemption and the notice of opposition to the claim of exemption with the court.
(2)
The filing of an ex parte application under this section is not a general appearance and shall not constitute a waiver of the right to bring a motion under Section 418.10.
(f)
If the levying officer does not receive a notice of opposition to the claim of exemption within the 10-day period after the date of mailing of the notice of claim of exemption and a notice of the hearing not later than 10 days after the filing of the notice of opposition to the claim of exemption, the levying officer shall serve on the employer one
of the following:
(1)
A notice that the earnings withholding order has been terminated if all of the judgment debtor’s earnings were claimed to be exempt.
(2)
A modified earnings withholding order that reflects the amount of earnings claimed to be exempt in the claim of exemption if only a portion of the judgment debtor’s earnings was claimed to be exempt.
(g)
If, after hearing, the court orders that the earnings withholding order be modified or terminated, the clerk shall promptly transmit a certified copy of the order to the levying officer who shall promptly serve on the employer of the judgment debtor (1) a copy of the modified earnings withholding order or (2) a notice that the earnings withholding order has been terminated.
(1)
Where the judgment
debtor’s wages are exempt without making a claim, the court shall terminate or modify the earnings withholding order, and shall order the return by a date certain of all of the judgment debtor’s exempt wages. Where the judgment upon which the writ is issued is for personal debt, as defined in subdivision (d) of Section 683.110, the court shall order the return by a date certain of any wages that were exempt without the need for a claim and that were garnished for up to 12 months preceding the date of the order on the claim of exemption. This paragraph does not limit a judge’s authority to order, for good cause, the return of any exempt property taken more than 12 months preceding the date of the order on the claim of exemption.
(2)
Where the judgment debtor’s wages are exempt as the result of a claim of exemption, the court shall terminate or modify the earnings withholding order, and shall order the return by a date certain of all of the
judgment debtor’s exempt wages. Where the judgment upon which the writ is issued is for personal debt, as defined in subdivision (d) of Section 683.110, the court shall order the return by a date certain any wages that the debtor has demonstrated would have been exempt by claim of exemption and that were garnished for up to six months preceding the date of the order on the claim of exemption. This paragraph does not limit a judge’s authority to order, for good cause, the return of any exempt property taken more than six months preceding the date of the order on the claim of exemption.
(3)
If the court determines that any amount withheld pursuant to the earnings withholding order should be paid to the judgment debtor, the court shall order the levying officer, judgment creditor, or other person, who is in possession of the property, to return the exempt property to the judgment debtor. A levying officer shall return the exempt property within 20
business days of receipt of notice of the order. A judgment creditor shall return the exempt property within 10 business days of entry of the order.
(h)
If the earnings withholding order is terminated by the court, unless the court otherwise orders or unless there is a material change of circumstances since the time of the last prior hearing on the earnings withholding order, the judgment creditor may not apply for another earnings withholding order directed to the same employer with respect to the same judgment debtor for a period of 100 days following the date of service of the earnings withholding order or 60 days after the date of the termination of the order, whichever is later. Where the judgment upon which the writ is issued is for personal debt, as defined in subdivision (d) of Section 683.110, the judgment creditor may not apply for another earnings withholding order directed to the same employer with respect to the same judgment
debtor for a period of 100 days following the date of service of the earnings withholding order or 60 days after the date of the termination of the order, whichever is later.
(i)
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. If the employer has withheld amounts pursuant to an earnings withholding order after termination of the order but has not paid over those amounts to the levying officer, the employer shall pay those amounts to the judgment debtor within five business days of the end of the next pay period.
(j)
An appeal
lies from any court order under this section denying a claim of exemption or modifying or terminating an earnings withholding order. An appeal by the judgment creditor from an order modifying or terminating the earnings withholding order does not stay the order from which the appeal is taken. Notwithstanding the appeal, until the order modifying or terminating the earnings withholding order is set aside or modified, the order allowing the claim of exemption in whole or in part shall be given the same effect as if the appeal had not been taken.
(k)
This section does not apply to a withholding order for support or a withholding order for taxes.

Retrieval chunks

• #1 | Code of Civil Procedure - CCP - CCP § 706.105

  (a) A judgment debtor may claim an exemption under Section 706.051 under either of the following circumstances: (1) No prior hearing has been held with respect to the earnings withholding order. (2) There has been a material change in circumstances since the time of the last prior hearing on the earnings withhold…

• #2

  defined in subdivision (d) of Section 683.110, if the hearing is delayed by the court and cannot be set within 30 days of notice of the motion, a party may seek by ex parte application, and the court shall issue, an order staying any levy or garnishment with respect to the property subject to the claim of exemption un…

• #3

  If, after hearing, the court orders that the earnings withholding order be modified or terminated, the clerk shall promptly transmit a certified copy of the order to the levying officer who shall promptly serve on the employer of the judgment debtor (1) a copy of the modified earnings withholding order or (2) a notice…

• #4

  If the earnings withholding order is terminated by the court, unless the court otherwise orders or unless there is a material change of circumstances since the time of the last prior hearing on the earnings withholding order, the judgment creditor may not apply for another earnings withholding order directed to the sa…