Central District Consumer Bankruptcy Attorney's Association

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 fromservice 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.
e:

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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,Chapter2,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, andgarnished wages would not be subject to 547 claim and therefore 522(g) and (h) would not applicable. However, debtor can asserta wage claim exemption [See Divison 2, Chapter 5, Article3, Section 706.105 which does not actually have a 15 day limit (that is for levies notgarnishments)].
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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Peter:
CCP 697.710 applies to liens is part of Chapter 2, of Division Two (of Part
Two?) of the CCP. Garnishments are Ch 5 of Div 2. As such I don't think
that the lien is applicable.
If you have any questions or concerns, please contact me.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com

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Under CCP 697.710 the execution lien takes affect at time of at the time of levy, over one year on these facts.
Therefore,the security interest is perfected more than 90 days pre-petition and is thus not preferantial, andgarnished wages would not be subject to 547 claim and therefore 522(g) and (h) would not applicable.
However, debtor may have a wage claim exemption for the 15 days after garnishment plus tolling under 108 if petition filed within the 15 days.

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Thanks. I was aware of the 522 subsections, but had a nagging thought that the original EWO, issued more than a year ago, created a lien on on-going wages, and therefore took it out of the preference period.
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: Tuesday, February 17, 2009 3:27:40 PM
Subject: [cdcbaa] Re: Preference re Individual Debtor's Garnished Wages?
take a look at 522(g) and (h). File a 547 action action against the
creditor to the extent of wages seized within 90 days of filing.
wrote:
>
> Individual Debtor has been under a wage garnishment for a year. He
just decides to file his
> 7. Is there no preference claim for the wages levied within 90 days
of the Petition because
> the creditor's security interest arose a year ago?
>
Thanks. I was aware of the 522 subsections, but had a nagging thought that the original EWO, issued more than a year ago, created a lien on on-going wages, and therefore took it out of the preference period.Kenneth Jay Schwartz, Esq.LAW OFFICE OF KENNETH JAY SCHWARTZ21031 Ventura Boulevard, 12th FloorWoodland Hills, California 91364-2203Telephone: (818) 226-1205Facsimile: (818) 226-1213THE 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.From: Jon Hayes <Jhayes@polarisnet.net>To: cdcbaa@yahoogroups.comSent: Tuesday, February 17, 2009 3:27:40 PMSubject: [cdcbaa] Re: Preference re Individual Debtor's Garnished
Wages?
take a look at 522(g) and (h). File a 547 action action against the
creditor to the extent of wages seized within 90 days of filing.
et"_blank" href"mailto:cdcbaa%40yahoogroups.com">cdcbaa@yahoogroups. com, "Kenneth Schwartz"
<kennethjschwartz@ ...> wrote:
>
> Individual Debtor has been under a wage garnishment for a year. He
just decides to file his
> 7. Is there no preference claim for the wages levied within 90 days
of the Petition because
> the creditor's security interest arose a year ago?
>

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take a look at 522(g) and (h). File a 547 action action against the
creditor to the extent of wages seized within 90 days of filing.
wrote:
>
> Individual Debtor has been under a wage garnishment for a year. He
just decides to file his
> 7. Is there no preference claim for the wages levied within 90 days
of the Petition because
> the creditor's security interest arose a year ago?
>

The post was migrated from Yahoo.

charset="windows-1251"
I don't think you can get a security interest in after acquired wages.....
Preference lies
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
Kenneth Schwartz
Sent: Tuesday, February 17, 2009 2:09 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Preference re Individual Debtor's Garnished Wages?
Individual Debtor has been under a wage garnishment for a year. He just
decides to file his
7. Is there no preference claim for the wages levied within 90 days of the
Petition because
the creditor's security interest arose a year ago?
charset="windows-1251"
Message
I don't think you can get a
security interest in after acquired wages..... Preference
lies

David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.

Individual Debtor has been under a wage garnishment for a year. He just decides to file his
7. Is there no preference claim for the wages levied within 90 days of the Petition because
the creditor's security interest arose a year ago?

The post was migrated from Yahoo.