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Is your Notice of Levy worth the paper it is printed on?
By Richard L. Enkelis
To most of the attorneys I speak with, doing a levy with a Writ of Execution means having a Writ of Execution issued by the court, preparing the Levying Officer (LO) instructions and preparing the instructions for a Registered Process Server (RPS), if one is being used. Very few of the offices I have polled fill out their own Notice of Levy. They seem to leave it to the LO or the RPS.
In the days before the Enforcement of Judgments Law (EJL), that is, prior to July 1, 1983, that was not a problem. In California, under the old law, all levies of a Writ of Execution were a “snapshot”, you got what was due at the instant of the levy and nothing which came due after the levy. Perhaps the classic case in the area was Hustead v Superior Court (1969) 2 Cal. App. 3d 780; 83 Cal. Rptr. 26, in which a judgment creditor unsuccessfully attempted to garnish future rent due from a tenant to the judgment debtor. The Hustead case contains a very good discussion of the law of garnishment as it existed in the days before the EJL became effective.
What is generally overlooked is the fact that the law of garnishments was completely changed by the EJL. In its summary report to the legislature, the California Law Revision Commission (the drafters of the EJL) said:
The proposed law requires that the garnishee make prompt payment to the levying officer of debts that are due, and any payments falling due on the obligation levied on during the two year lien of execution must be similarly paid. Existing law does not provide for a continuing levy on payments as they fall due.”
16 California Law Revision Commission Reports, 1001, 1013-14 (1982) [Italics in original, bold emphasis added]
Later, in the same report the Law Revision Commission has a complete and full recommendation. In addition to the language quoted above from the Summary Report, in the full report the Commission says:
16 California Law Revision Commission Reports, 1001, 1077 (1982)
Thus, prior to the EJL the only levy which was a continuing levy was an Earnings Withholding Order, all other levies were “snapshots”. Under the EJL, only bank levies are a “snapshot”, all other levies are continuing for at least some period of time. This is embodied in CCP §701.010 (b) (2) (A) and (B). 1
That is where the Notice of Levy may become a critical document. If the Notice of Levy does not accurately describe “the obligation levied upon” a court might find that the garnishee was not on sufficient notice to be held liable.
The LOs and RPSs tend to use boilerplate language on the Notice of Levy form. If you are intending to levy on an ongoing obligation, be sure to accurately describe what is being levied upon in the Notice of Levy. I have found, that even when I tell the LO what I want put in Box 1b in the Notice of Levy, what often comes out is the LO’s boilerplate.
If you specifically instruct the LO what to put in the necessary box, and the LO does something else, and a court holds you did not have an ongoing levy because of that, you may have recourse against the LO if the LO is shown to have acted contrary to the signed instructions of the levying creditor (CCP §687.040).
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