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Preference re Individual Debtor's Garnished Wages=
I will. Thank you.
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Thursday, February 19, 2009 10:50:38 AM
Subject: Re: [cdcbaa] Re: Preference re Individual Debtor's Garnished Wages?
Sounds like a great argument. I don't have an annotated CCP and do not know of any case law on this issue. However, a possible counter-argument that could muddy the water and confuse the court is that "a new lien is created each time that earnings become payable." See 706.029. I think the plain language of the entire section supports the expiration of lien at end of one year from service date of original order, especially where it creates lien on "all property of the employer" as well.
Let me know if you find any cases on this issue.
te:
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Peter, what if the EWO is older than 1 year? Does a new one need to be served in order to
create and perfect the lien?
Kenneth Jay Schwartz, Esq.
LAW OFFICE OF KENNETH JAY SCHWARTZ
21031 Ventura Boulevard, 12th Floor
Woodland Hills, California 91364-2203
Telephone: (818) 226-1205
Facsimile: (818) 226-1213
THE INFORMATION CONTAINED IN THIS E-MAIL IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENT(S) NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CLIENT COMMUNICATION, AND, AS SUCH, IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE DESIGNATED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS E-MAIL IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Thursday, February 19, 2009 9:55:01 AM
Subject: RE: [cdcbaa] Re: Preference re Individual Debtor's Garnished Wages?
OK, upon further analysis...
699.710 provides: "all property subject to enforcement of a money judgment pusuant to [Division 2] Article 1 (commencing with Section 695.010) of Chapter 1 is subject o levy under a writ of execution to satisfy a money judgment."
And Divison 2, Chapter 2, Article 1, Section 695.010 provides that "... all property of the judgment debtor is subject to enforcement of a money judgment"
However, under Division 2, Chapter 5, Article 2,
706.029 provides; "Service of an earnings withholding order creates a lien upon the earnings of the judgment debtor that are required to be withheld pursuant to the order... The lien continues for one year from the date the earnings of the judgment debtor become payable..."
Therefore, the security interest is perfected [under 706.029 NOT 697.710] more than 90 days pre-petition and is thus not preferantial, and garnished wages would not be subject to 547 claim and therefore 522(g) and (h) would not applicable. However, debtor can assert a wage claim exemption [See Divison 2, Chapter 5, Article 3, Section 706.105 which does not actually have a 15 day limit (that is for levies not garnishments) ].
I dont see how the debtor can recover funds actually received by the judgment creditor under the earnings withholding order, since the creditor is secured and security interest was perfected before 90 day preference period.
Thanks Pat.
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