Bill Text: CA AB233 | 2013-2014 | Regular Session | Amended
Bill Title: Wage garnishment: restrictions: student loans.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2014-08-28 - Read third time. Refused passage. (Ayes 13. Noes 17. Page 4953.). [AB233 Detail]
Download: California-2013-AB233-Amended.html
BILL NUMBER: AB 233 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 10, 2013
AMENDED IN ASSEMBLY APRIL 9, 2013
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Wieckowski
FEBRUARY 5, 2013
An act to amend Section 706.121 of, and to add
Section Sections 706.053 and 706.130
to , the Code of Civil Procedure, relating to wage
garnishment.
LEGISLATIVE COUNSEL'S DIGEST
AB 233, as amended, Wieckowski. Wage garnishment: restrictions:
student loans.
The Wage Garnishment Law prescribes the procedure for withholding
an employee's earnings for purposes of paying a debt. The law
requires that a levy of execution upon the earnings of an employee be
made by service of an earnings withholding order upon the employer.
An earnings withholding order is issued by a levying officer upon
receiving an application submitted by a judgment creditor, as
specified. An employer is required, except as otherwise provided by
statute, to withhold the amounts required by an earnings withholding
order from all earnings of the employee payable for any pay period of
the employee which ends during the withholding period.
This bill would provide that an earnings withholding order shall
not be used for purposes of enforcing a judgment for the collection
of debt that is from a student loan that is not made, insured, or
guaranteed by the United State Government pursuant to the Federal
Family Education Loan Program or the William D. Ford Federal Direct
Loan Program. The bill would require a court to terminate or
modify an earnings withholding order issued on or after
January July 1, 2014, upon proof by a
judgment debtor that it was issued in violation of these provisions
if the court determines, upon a request by the
judgment debtor pursuant to specified requirements and procedures,
that the withholding order enforces a judgment in violation of these
provisions. The bill would provide that a judgment
creditor is liable to the judgment debtor for all amounts collected
by the judgment creditor in violation of these provisions. The bill
also would make conforming changes .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 706.053 is added to the Code of Civil
Procedure, immediately after Section 706.052, to read:
706.053. (a) An earnings withholding order
shall not be used for purposes of enforcing a judgment for the
collection of debt that the judgment debtor proves is from a student
loan that is not made, insured, or guaranteed by the United States
Government pursuant to the Federal Family Education Loan Program (20
U.S.C. Sec. 1071 et seq.) or the William D. Ford Federal Direct Loan
Program (34 C.F.R. 685.100). A court shall terminate an
earnings withholding
(b) An earnings withholding order
issued on or after January July 1,
2014, upon proof by the judgment debtor that the earnings
withholding order shall be terminated or modified if
it enforces a judgment in violation of this section.
(c) A judgment debtor may make a request to terminate an earnings
withholding order enforcing a judgment for student loan debt pursuant
to Section 706.130.
(d) A judgment creditor is liable to the judgment debtor for all
amounts collected by the judgment creditor in violation of this
section.
SEC. 2. Section 706.121 of the Code of
Civil Procedure is amended to read:
706.121. The "application for issuance of earnings withholding
order" shall be executed under oath and shall include all of the
following:
(a) The name, the last known address, and, if known, the social
security number of the judgment debtor.
(b) The name and address of the judgment creditor.
(c) The court where the judgment was entered and the date the
judgment was entered.
(d) Whether the judgment is based in whole or in part on a claim
for elder or dependent adult financial abuse and, if in part, how
much of the judgment arises from that claim.
(e) Commencing July 1, 2014, whether the judgment is based in
whole or in part on a claim for debt from a student loan that is not
made, insured, or guaranteed by the United States Government pursuant
to the Federal Family Education Loan Program (20 U.S.C. Sec. 1071 et
seq.) or the William D. Ford Federal Direct Loan Program (34 C.F.R.
685.100).
(e)
(f) The date of issuance of a writ of execution to the
county where the earnings withholding order is sought.
(f)
(g) The total amount required to satisfy the order on
the date of issuance (which may not exceed the amount required to
satisfy the writ of execution on the date of issuance of the order
plus the levying officer's statutory fee for service of the order).
(g)
(h) The name and address of the employer to whom the
order will be directed.
(h)
(i) The name and address of the person to whom the
withheld money is to be paid by the levying officer.
SEC. 3. Section 706.130 is added to the Code of Civil
Procedure, immediately after Section 706.129, to read:
706.130. (a) The "request to terminate an earnings withholding
order enforcing a judgment for student loan debt" shall include all
of the following information, if known:
(1) The current mailing address of the judgment debtor.
(2) The name and address of the judgment creditor.
(3) The court in which the judgment was entered and the date the
judgment was entered.
(4) A statement, under penalty of perjury, of whether the judgment
is based in whole or in part on a claim for a student loan that is
not made, insured, or guaranteed by the United States Government
pursuant to the Federal Family Education Loan Program (20 U.S.C. Sec.
1071 et seq.) or the William D. Ford Federal Direct Loan Program (34
C.F.R. 685.100). Documents supporting the existence of the student
loan debt shall be attached to the request.
(5) Whether an earnings withholding order was issued in violation
of Section 706.053. A copy of the order shall be attached to the
request.
(6) The date of issuance of a writ of execution to the county
where the earnings withholding order is sought.
(7) The total amount required to satisfy the earnings withholding
order on the date of issuance.
(8) The name and address of the employer to whom the earnings
withholding order was directed.
(9) The name and address of the person to whom the order directs
the levying officer to pay the money withheld.
(b) A request to terminate an earnings withholding order enforcing
a judgment for student loan debt shall be made by filing with the
levying officer an original and one copy of the request.
(c) Upon filing of a request, 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, both of the following:
(1) A copy of the request.
(2) A notice of the request. The notice shall state that the
request has been filed and that the earnings withholding order will
be terminated or modified to subtract from the amount to be withheld
the portion that is based on a judgment to collect a student loan
debt in violation of Section 706.053, unless a notice of opposition
to the request is filed with the levying officer by the judgment
creditor within 10 days after the date of the mailing of the notice
of the request.
(d) A judgment creditor who desires to contest a request to
terminate an earnings withholding order enforcing a judgment for
student loan debt shall, within 10 days after the date of the mailing
of the notice of the request, file with the levying officer a notice
of opposition to the request.
(e) If a notice of opposition to a request is filed with the
levying officer within the 10-day period, the judgment creditor is
entitled to a hearing on the request. If the judgment creditor
desires a hearing on the request, the judgment creditor shall file a
notice of motion for an order determining the request 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 the hearing is continued
by the court for good cause. 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 request on the
judgment debtor and, if indicated in the request, 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 request are
deposited in the mail, postage prepaid, addressed to the judgment
debtor at the address stated in the request and, if service on the
attorney for the judgment debtor was indicated in the request, to the
attorney at the address stated in the request. 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 request and the notice of opposition
to the request with the court.
(f) If the levying officer does not receive a notice of opposition
to the request within the 10-day period after the date of mailing of
the notice of request and a notice of the hearing not later than 10
days after the filing of the notice of opposition to the request, the
levying officer shall serve on the employer one of the following:
(1) A notice that the earnings withholding order has been
terminated if the entire amount to be withheld under the order is
based on a judgment to collect a student loan debt in violation of
Section 706.053.
(2) A modified earnings withholding order that reflects the
subtraction from the amount to be withheld of the portion that is
based on a judgment to collect a student loan debt in violation of
Section 706.053.
(g) If, after hearing, the court orders that the earnings
withholding order be terminated or modified, 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
notice that the earnings withholding order has been terminated, or
(2) a copy of the modified earnings withholding order. The court may
order that the earnings withholding order be terminated as of a date
that precedes the date of hearing. If the court determines that an
amount withheld pursuant to the earnings withholding order should be
paid to the judgment debtor, the court shall make an order directing
the person who holds that amount to pay it promptly to the judgment
debtor.
(h) If the earnings withholding order is terminated or modified,
the judgment creditor shall not apply for another earnings
withholding order to enforce the same judgment or the portion thereof
that was determined to be based on a student loan debt in violation
of Section 706.053.
(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 promptly pay those amounts to the judgment debtor.
(j) An appeal lies from any court order under this section
granting or denying a request to terminate an earnings withholding
order enforcing a judgment for student loan debt. An appeal by the
judgment creditor from an order modifying or terminating the earnings
withholding order shall 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
on appeal, the order modifying or terminating the earnings
withholding order 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.
