Case Number: KC065120 Hearing Date: December 19, 2019 Dept: J

HEARING DATE: Thursday, December 19, 2019

NOTICE: OK

RE: Pride Acquisitions, LLC v. Punzalan (KC065120) [AMENDED]

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HEARING ON DEFENDANT/JUDGMENT DEBTOR EVERETT Y. PUNZALAN’S CLAIM OF EXEMPTION

Responding Party: Plaintiff’s Assignor/Judgment Creditor, Unifund CCR, LLC

Tentative Ruling

Defendant/Judgment Debtor Everett Y. Punzalan’s Claim of Exemption is DENIED.

Background

Plaintiff Pride Acquisitions LLC (“Plaintiff”) alleges that Plaintiff’s predecessor in interest, Chase Bank USA, N.A. (“Chase”) entered into an agreement with Defendant Everett Punzalan (“Defendant”), wherein Chase extended credit to Defendant in the form of a revolving credit account. Plaintiff alleges that Defendant defaulted in making payments due. On November 26, 2012, Plaintiff filed a complaint, asserting causes of action against Defendant for:

Breach of Contract

Account Stated

On May 6, 2013, Defendant’s default was entered. On May 15, 2013, default judgment was filed. On November 25, 2018, an “Acknowledgment of Assignment of Judgment” was filed, which reflected that Plaintiff assigned the judgment to Unifund CCR, LLC.

On September 13, 2019, a writ of execution was issued.

Discussion

Plaintiff’s Assignor/Judgment Creditor Unifund CCR, LLC (“Judgment Creditor”) opposes the Claim of Exemption submitted by Defendant/Judgment Debtor Everett Y. Punzalan (“Judgment Debtor”).

TIMELINESS: To oppose a claim of exemption, within 10 days after service of the notice of claim of exemption (or, ordinarily within 15 days if the levying officer served the notice by mail, see CCP § 684.120), the judgment creditor must filed with the court a notice of opposition to the claim of exemption (Judicial Council Form EJ-170), a notice of motion for an order determining the claim of exemption and notice of hearing on claim of exemption (Judicial Council Form EJ-175) and file copies of each of these documents with the levying officer. (CCP § 703.550.) If the copies of the judgment creditor’s notice of opposition and notice of motion are not timely filed with the levying officer, the levying officer must immediately release the property claimed exempt. (CCP § 703.550.)

At least 10 days prior to the hearing (longer if service is by mail), the judgment creditor must serve on the exemption claimant (and on the judgment debtor if different from the claimant) the Notice of Hearing on Claim of Exemption, and a copy of the Notice of Opposition to Claim of Exemption. (CCP § 703.570(b).)

The hearing on the exemption claim must be held no later than 30 days from the date the notice of motion was filed with the court, unless the court continues the hearing for good cause. (CCP §703.570(a).) Unless otherwise ordered by the court, property claimed to be exempt must be released if an exemption is not determined within the time provided by Section 703.570. (CCP § 703.580(f).)

Here, the Notice of Filing Claim of Exemption states it was mailed on November 13, 2019. The Notice of Hearing on Claim of Exemption and Notice of Opposition to Claim of Exemption were timely served on the levying officer and judgment debtors on November 21, 2019 and filed with the court that day. The motion is also being heard within 30 days from the date of the notice of the motion.

BURDEN OF PROOF: The exemption claimant bears the burden of proof at the hearing. (CCP § 703.580(b).) “[E]xemption statutes are to be liberally construed in favor of the debtor.” (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.)

The Claim of Exemption and any attached Financial Statement and Notice of Opposition to Claim of Exemption constitute the pleadings for the hearing. (CCP § 703.580(a).) The court may permit amendments thereto in the interest of justice. (Id.)

The judgment creditor must include both of the following: (a) an allegation either (1) that the property is not exempt under the enforcement of judgments law (“EJL”) or other statute relied upon or (2) that the equity in the property claimed to be exempt is greater than the amount provided by the exemption and (b) a statement of the facts necessary to support the allegation. (CCP § 703.560.)

The court’s decision may be based solely on the information in the claim of exemption and notice of opposition, of the court may continue the hearing for production of other oral or documentary evidence. (CCP § 703.580.)

Here, Judgment Debtor claims, in Section 4 of his Claim of Exemption, that the following property is exempt: “Wells Fargo Bank $1778.17.”

Under CCP § 703.520(b)(6), Judgment Debtor is required to submit “[a] statement of the facts necessary to support the claim.” Section 5 of each of the Claims of Exemption references CCP §§ 704.070 (i.e., entitled “Paid earnings; earnings withholding order; wage assignment for support”), 706.050 (entitled “Maximum amount of disposable earnings of an individual judgment debtor subject to levy”), 706.051 (entitled “Amount necessary for support of judgment debtor or family; exemption”) and 15 U.S.C. 1673(a) (entitled “Restriction on garnishment”) as the basis for the exemptions.

Judgment Creditor, in turn, opposes the claim of exemption, on the basis that there is no financial means exemption to the levy of funds in a bank account and that the financial means exemption is only available for a wage garnishment (earnings withholding order). The memo from the Sheriff’s Department demonstrates that Judgment Debtor has filed a claim of exemption in response to a bank levy. CCP §§ 704.070, 706.050 and 706.051, in fact, are contained within Title 9 (Enforcement of Judgments), Division 2 (Enforcement of Money Judgments), Chapter 5 (Wage Garnishment), Article 3 (Restrictions on Earnings Withholding) and are thus not applicable here. 15 U.S.C. is contained within Title 15 (Commerce and Trade), Chapter 41 (Consumer Credit Protection), Subchapter II (Restrictions on Garnishment) and is also not applicable here. Judgment Debtor’s claim of exemption is DENIED.