2011-00097387-CL-CL

Fireside Bank vs. Tahshaun C. Smith

Nature of Proceeding: Notice of Hearing on Claim of Exemption

Filed By: Cara, Grace G.

This matter is CONTINUED on the Court’s own motion to February 19, 2019.

This is a bank levy in which the judgment debtor has filed a claim of exemption contending the property is exempt pursuant to CCP § 706.051. Should judgment debtor claim the exemption under CCP § 706.050 for earnings that were paid to the employee during the 30-day period ending on the date of the levy, which exempts 75% of paid earnings, admissible evidence of tracing is required. The debtor has not filed any declaration authenticating any bank records/employment records establishing that the funds levied upon were wages paid within 30 days of the date of the levy; no bank statements are provided showing deposits of wages, and should be provided as part of the declaration authenticating the bank deposits if debtor intends to rely upon these code sections in support. Debtor must state that deposits made within that 30-day period constitute wages.

The claimant has the burden of proof to establish that an exemption applies. (Code Civ. Proc. § 703.580(b).) The burden of proof is on the claimant to trace the funds in a deposit account to an exempt source. (Code Civ. Proc. § 703.080(b). Exemptions pertaining to funds in deposit accounts are available only for paid earnings, certain government benefits, and when other exemptions may be traced by the debtor into the debtor’s bank account. (See Code Civ. Proc. §§ 703.080, 704.070, 704.080.) Except as otherwise provided by law, all property subject to enforcement of a money judgment pursuant to Code Civ. Proc. § 695.010 et seq. is subject to levy under a writ of execution to satisfy a money judgment. (Code Civ. Proc. § 699.710.)

Claimant has to trace the funds to an exempt source using the lowest intermediate balance principle. (See Rutter Group, Schwartz and Ahart, California Practice Guide, Enforcement of Judgments and Debts section 6:850 – 6:852.)

This matter is continued to allow the filing of supplemental documents showing the funds levied upon are from an exempt source.

On or before January 30, 2019, claimant shall serve and file a declaration under penalty of perjury with supplemental documents that show the funds levied upon are from an exempt source.

On or before February 6, 2019, judgment creditor shall file and serve any response to the filing of the claimant.

The clerk shall send a copy of this minute order to the sheriff and the parties.