2011-00104973-CL-CL
Capital One Bank USA NA vs. Barbara A Rocco
Nature of Proceeding:
Filed By:
Notice of Hearing on Claim of Exemption
Rundquist, Andrew P.

This matter was continued to today’s date for oral argument only. The original
tentative ruling appears below.

The Claim of Exemption is DENIED.

Judgment Debtor has submitted financial records showing that she has deposited
exempt funds into various accounts. However, the accounts contain non-exempt
funds as well, and Judgment Debtor has not submitted sufficient account balance
information for the court to determine whether, or the extent to which, funds in the
accounts are exempt under the lowest intermediate balance rule. (See CCP §
703.080(c).) The burden of proof is on Judgment Debtor. (Id. § 703.080(c).) Because
Judgment Debtor has not met her burden of proof, the exemption is denied.

The notice of motion does not provide notice of the court’s tentative ruling system, as
required by Local Rule 1.06(D). Counsel for moving party is directed to contact
counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the
court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available
at the hearing, in person or by telephone, in the event opposing party appears without
following the procedures set forth in Local Rule 1.06(B).

Lawzilla Additional Information:

It is an interesting question of what income and assets are exempt from being seized by a creditor, and what actions a debtor can take to allow otherwise exempt assets to be seized from their bank account.

This public court document was filed by Barbara Rocco of 10824 Glenhaven Way, Rancho Cordova, California 95670:

In her public filing Ms. Rocco states she had various debts including:

– Money to the IRS
– Money to the California Franchise Tax Board
– Overdue bills
– Overdraft fees
– Overdue utilities
– Past due insurance
– Notary public license fee
– Overdue mortgage
– Computer payment
– Mechanic payment
– Capital One debt

Apparently, $13,000 was claimed by Capital One.

Rocco was laid off from the Wildlife Society. She was laid off from the Wildlife Heritage Foundation.

In her bank account Barbara Rocco deposited social security payments, money from the sale of property, money from the settlement of a lawsuit, and self-employment income.

Rocco is not married, but claims to spend $800 per month on food and household supplies.

It appears the issue for the judge was not Ms. Rocco’s expenses and debts and whether the seizure of her account would leave her sufficient funds to live on, but the commingling of exempt and non-exempt money in the same account.

There was apparently insufficient information, with money going in and out of the account for various reasons, for the judge to determine what balance of money in the account was exempt. The question may not be whether there is income exempt from being garnished in the bank account, but whether the debtor (Barbara Rocco) has met her burden of proving the extent to which funds are exempt.

The best practice may be to have two accounts to avoid commingling. Or, when faced with a lawsuit and a judgment against you, not to leave substantial money in an account where it can be seized by a creditor.

Interestingly, although Barbara Rocco claims in her filing to list her debts, this is not the first time she has been sued.

Ms. Rocco was also sued by Acceptance Credit. It is possible this debt was originally a debt owed to another business that is included in her list, but it seems odd better detail was not provided. It was not long before her Capital One filing that Acceptance Credit obtained a judgment against Barbara Rocco for $5712.60. Potentially, the judge may have been aware of this other lawsuit and judgment and wondered why the judgment was not specifically mentioned in her debt list.

After this tentative ruling, we saw in the Sacramento County public records an abstract of judgment involving Barbara Rocco by the Law Offices of John A. Biard. (Document number 201501300617). The Sacramento County Court records also list other lawsuits involving Barbara Rocco which have not been reviewed.

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