Bill Text: CA SB890 | 2011-2012 | Regular Session | Amended
Bill Title: Debt buyers.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2012-07-02 - Set, first hearing. Failed passage in committee. Reconsideration granted. [SB890 Detail]
Download: California-2011-SB890-Amended.html
BILL NUMBER: SB 890 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 27, 2012
AMENDED IN ASSEMBLY JUNE 18, 2012
AMENDED IN SENATE MAY 27, 2011
AMENDED IN SENATE MAY 17, 2011
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senator Leno
(Coauthors: Assembly Members Butler and Wieckowski)
FEBRUARY 18, 2011
An act to add Title 1.6C.5 (commencing with Section 1788.50) to
Part 4 of Division 3 of the Civil Code, and to amend Sections
700.010, 706.103, 706.104, 706.108, and 706.122 of, and to add
Section 581.5 to, the Code of Civil Procedure, relating to debt
buyers.
LEGISLATIVE COUNSEL'S DIGEST
SB 890, as amended, Leno. Debt buyers.
(1) Existing state and federal law regulate the practice of debt
collection. Existing state law prohibits a debt collector from
engaging in specified conduct, including the use of threats or
causing a telephone to ring repeatedly to annoy the person called.
Existing law prohibits a debt collector from obtaining an affirmation
from a debtor of a consumer debt that has been discharged in
bankruptcy, without clearly and conspicuously disclosing to the
debtor, in writing, the fact that the debtor is not legally obligated
to make such affirmation.
This bill would enact the Fair Debt Buyers Practices Act, which
would regulate the activities of a person or entity that has bought
consumer debt and the circumstances in which the person may bring
suit. The bill would prohibit a debt buyer, as defined, from making
any written statement in an attempt to collect a consumer debt unless
the debt buyer possesses information that the debt buyer is the sole
owner of the specific debt at issue, the debt balance, as specified,
and the name and address of the creditor at the time the
debt was charged off, among other things. The bill would require the
debt buyer to make certain documents available to the debtor, without
charge, upon receipt of a request, within 15 days. The bill would
require that a specified notice be included with the debt buyer's
first written communication with the debtor. The bill would require
all settlement agreements between a debt buyer and a debtor to be
documented in open court or otherwise in writing and would require a
debt buyer who receives a payment on a debt to provide a receipt or
statement containing certain information. The bill would prohibit a
debt buyer from initiating a suit to collect a debt if the statute of
limitations on the cause of action has expired. The bill would
prescribe penalties for a each
violation of the act and would provide that its provisions may not be
waived. The bill would require a debt buyer bringing an action on
consumer debt to include certain information in his or her complaint.
The bill would prohibit an entry of judgment in favor of a plaintiff
debt buyer unless properly authenticated business
records authenticated through a sworn declaration and
relating to the debt and ownership of it, among other things, are
properly in evidence, submitted by the debt
buyer to the court, and would permit a court to dismiss a debt
buyer's action to collect with prejudice if this information is not
provided or if the debt buyer fails to appear or is not prepared on
the date scheduled for trial.
(2) Existing law establishes a process for the enforcement of
money judgments and requires a levying officer to provide certain
documents and information to a judgment debtor and to a designated
employer in connection with wage garnishment. Existing law permits a
process server also to serve an earnings withholding order on an
employer and requires that the process server also serve certain
documents at this time. Existing law requires an employer who is
served with an earnings withholding order to provide certain
documents to an employee who is a judgment debtor.
This bill would require, in the circumstances described above,
that a copy of the form that the judgment debtor may use to make a
claim of exemption and a copy of the form used to provide a financial
statement also be provided.
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. The Legislature finds and declares the following:
(a) The collection of debt is an appropriate business
practice, and most entities involved in the collection of debt act
within the requirements of the law, and respect the rights of
consumers purchased by debt buyers has become a
significant focus of public concern due to the adequacy o
f documentation required to be maintained by the industry in support
of its collection activities and litigation .
(b) According to the Federal Trade Commission and the
Department of Consumer Affairs, the debt collection industry is,
however, the source of more consumer inquiries in California than any
other industry. A significant source of consumer complaints concerns
attempts to collect debt that is not owed, has been discharged, or
is impermissible. State law does not currently
prescribe the specific nature of documentation that a debt buyer must
maintain and produce in a legal action on the debt.
(c) Debt collection lawsuits brought by debt buyers have
increased sharply in recent years, and this increase has resulted in
a significant strain on the state's courts.
Documentation used to support the collection of a debt must be
sufficient to prove that the individual who is being asked to pay the
debt is in fact the individual associated with the
original contract or agreement, and that the amount of indebtedness
is accurate.
(d) Many collection lawsuits brought by some debt buyers
are not supported by sufficient documentation to establish the
provenance of the alleged debt. In a significant percentage of these
lawsuits, defendants never appear, resulting in default judgments
where potential defenses to collection efforts are not raised.
It is importa nt to create documentation and
process standards for the collection of consumer debt that all
interested parties can easily understand.
(e) To facilitate the collection of debt and ensure the
integrity of the debt collection process, reasonable documentation
establishing the provenance of purchased debt must be secured before
action is taken to collect it. The existence of that documentation
will protect consumers, provide needed guidance to courts, and
establish clear standards for debt buyers and the collection
industry. Setting specific documentation and process
standards will protect consumers, provide needed clarity to courts,
and establish clearer criteria for debt buyers and the collection
industry.
SEC. 2. Title 1.6C.5 (commencing with Section 1788.50) is added to
Part 4 of Division 3 of the Civil Code, to read:
TITLE 1.6C.5. Fair Debt Buyers Practices Act
1788.50. (a) As used in this title, "debt buyer" means a person
or entity that purchases is regularly engaged
in the business of purchasing charged-off consumer loans
or , consumer credit accounts, or other
delinquent consumer debt for collection purposes, whether it
collects the debt itself, hires a third party for collection, or
hires an attorney-at-law for collection litigation .
(b) "Debt buyer" includes any direct or indirect
parent, subsidiary, or other affiliate of
that exercises direct control over the person or
entity described in subdivision (a), and any person or
entity with an ownership interest in the purchased debt
(a) .
(c) The acquisition by a check services company of the right to
collect on a paper or electronic check instrument, including an
Automated Clearing House item, that has been returned unpaid to a
merchant does not constitute a purchase of delinquent consumer debt
under this title.
(c)
(d) Terms defined in Title 1.6C (commencing with
Section 1788) shall apply to this title.
(d)
(e) The provisions of this title shall apply to debt
buyers on with respect to all debt sold
or resold on or after July 1, 2013.
1788.52. (a) A debt buyer shall not make any written statement to
a debtor in an attempt to collect a consumer debt unless the debt
buyer possesses the following information:
(1) That the debt buyer is the sole owner of the debt at issue, or
has authority to assert the rights of all owners of the debt.
(2) The debt balance at charge off, including
and an explanation of the amount, nature, and reason
for all post-charge-off fees and charges, and the
basis for their imposition imposed by the charge-off
creditor or any subsequent purchasers of the debt. This subparagraph
shall not be deemed to require a specific itemization of each charge
.
(3) The date of default or the date of the last payment.
(4) The name and an address of the charge-off
creditor at the time of charge off, and the charge-off creditor'
s account number associated with the debt. The charge-off
creditor's name and address shall be in sufficient form so as to
reasonably identify it.
(5) The name and last known address of the debtor as
it they appeared in the charge-off
creditor's records at the time of charge off
prior to the sale of the debt . For
debt sold or resold Where the debt was sold
prior to July January 1, 2013, the
debtor's name and last known address will
satisfy the requirements of this paragraph. as they
appeared in the debt owner's records on December 31, 2012, shall be
sufficient.
(6) The names and addresses of all persons or entities
that purchased the debt after charge off, including the plaintiff
debt buyer. The names and addresses of these persons or entities
shall be in sufficient form so as to reasonably identify them.
(b) A debt buyer shall not make any written statement to a debtor
in an attempt to collect a consumer debt unless the debt buyer has
access to, and can produce in accordance with subdivision
(c), the following documents: to a copy of a contract
or other document evidencing the debtor's agreement to the debt. If
the claim is based on debt for w hich no signed contract
or agreement exists, the debt buyer shall have access to a copy of a
document provided to the debtor while the account was active,
demonstrating that the debt was incurred by the debtor. For a
revolving credit account, the most recent monthly statement recording
a purchase transaction, last payment, or balance transfer shall be
deemed sufficient to satisfy this requirement.
(1) Business records evidencing the information required by
paragraphs (1) to (6), inclusive, of subdivision (a).
(2) A copy of a contract or other document evidencing the debtor's
agreement to the debt. If the claim is based on debt for which no
signed contract or agreement exists, a copy of a document provided to
the debtor while the account was active, demonstrating that the debt
was incurred by the debtor. The most recent monthly statement on a
credit account recording a purchase transaction, last payment, or
balance transfer shall be deemed sufficient to satisfy this
requirement.
(c) A debt buyer shall provide the information or
documents identified in subdivision
subdivisions (a) and (b) to the debtor without
charge within 15 calendar days of receipt of a debtor's written
request for information regarding, or proof of,
regarding the debt or proof of the debt . If
the debt buyer cannot provide the information or documents
within 15 calendar days, the debt buyer shall cease all
collection of the debt until the debt buyer provides the debtor the
documentation information or
documents described in subdivision
subdivisions (a) and (b). Except as provided otherwise in
this title, the request by the debtor shall be consistent with the
validation requirements contained in Section 1692g of Title 15 of the
United States Code. A debt buyer shall provide all
debtors with whom it has contact with an active postal address
and an active email address to which such
these requests can be sent. A debt buyer may also provide
an active e-mail address to which these requests can be
sent and from which information and documents can be delivered, if
the parties agree.
(d) (1) A debt buyer's
buyer shall include with its first written communication
with the debtor shall include the following notice,
in no smaller than 12-point type, on
the first page, with the words "VERY IMPORTANT" in bolded print
type, a separate prominent notice that provides
:
NOTICE TO CONSUMER
DEPENDING ON HOW MUCH TIME HAS PASSED SINCE YOUR DEBT BECAME PAST
DUE, YOU MAY HAVE THE ABILITY TO STOP A DEBT COLLECTION LAWSUIT OR
OTHER LEGAL ACTION AGAINST YOU. THIS RIGHT IS CALLED A "STATUTE OF
LIMITATIONS" DEFENSE. HOWEVER, FAILURE TO PAY YOUR DEBTS MAY
NEGATIVELY IMPACT YOUR CREDIT RATING FOR A PERIOD OF UP TO SEVEN
YEARS FROM THE DATE WHEN THE DEBT WAS CHARGED OFF OR PLACED FOR
COLLECTION.
IT IS VERY IMPORTANT THAT YOU RESPOND TO THESE DOCUMENTS. TO GET
HELP, YOU CAN CONSULT AN ATTORNEY, VISIT A LOCAL SELF-HELP CENTER, OR
VISIT HTTP://WWW.COURTS.CA.GOV/SELFHELP.HTM FOR MORE INFORMATION.
"You may request records showing the following: (1) that insert
name of debt buyer] has the right to seek collection of the debt; (2)
the debt balance, including any additional fees and charges; (3) the
date of default or the date of the last payment; (4) the name of the
creditor and the account number associated with the debt; (5) the
name and last known address of the debtor as it appeared in the
creditor's or debt buyer's records prior to the sale of the debt, as
appropriate; (6) the names of all persons or entities that have
purchased the debt. You may also request from us a copy of the
contract or other document evidencing your agreement to the debt.
"A request for these records may be addressed to: insert debt
buyer's active mailing address]."
(2) When collecting on a time-barred debt where the debt is not
past the date for obsolescence provided for in Section 605(a) of the
Fair Credit Reporting Act (15 U.S.C. Sec. 1681c):
"The law limits how long you can be sued on a debt. Because of the
age of your debt, we will not sue you for it. If you do not pay the
debt, insert name of debt buyer] may continue to] report it to the
credit reporting agencies as unpaid."
(3) When collecting on a time-barred debt where the debt is past
the date for obsolescence provided for in Section 605(a) of the Fair
Credit Reporting Act (15 U.S.C. Sec. 1681c):
"The law limits how long you can be sued on a debt. Because of the
age of your debt, we will not sue you for it, and we will not report
it to any credit reporting agency."
(e) In the event of a conflict between the requirements
of subdivision (c) and federal law, so that it is impracticable to
comply with both, the requirements of federal law shall prevail.
If a language other than English is
principally used by the debt buyer in the initial oral contract with
the debtor, a notice shall be provided to the debtor in that language
within five working days.
(f) In the event of a conflict between the requirements of
subdivision (d) and federal law, so that it is impracticable to
comply with both, the requirements of federal law shall prevail.
1788.54. (a) All settlement agreements between a debt buyer and a
debtor shall be documented in open court or otherwise reduced to
writing. A The debt buyer shall ensure that a
copy of the written agreement is provided to the debtor.
(b) A debt buyer that receives
payment on a debt shall provide, within 30 calendar days, a receipt
or monthly statement, to the individual from whom payment is
received debtor . The receipt or statement
shall clearly and conspicuously show the amount and date paid, the
name of the entity paid, the current account number, the name of the
charge-off creditor, the account number issued by the charge-off
creditor, and the remaining balance owing, if any. The receipt or
statement may be provided electronically , at the debtor's
option if the parties agree .
(b)
(c) A debt buyer that accepts a payment as payment in
full, or as a full and final compromise of the debt, shall provide,
within 30 calendar days, a final statement that complies with
subdivision (a) (b) . A debt buyer
shall not sell an interest in a resolved debt, or any
confidential personal or financial information related to
the resolved debt.
1788.56. A debt buyer shall not bring suit or initiate an
arbitration or other legal proceeding to collect a consumer debt if
the applicable statute of limitations on the debt buyer's claim has
expired.
1788.58. In an action brought by a debt buyer on a consumer debt:
(a) The complaint shall allege all of the following:
(1) That the plaintiff is a debt buyer.
(2) The nature of the underlying debt and the consumer transaction
or transactions from which it is derived, in a short and plain
statement.
(3) That the debt buyer is the sole owner of the debt at issue, or
has authority to assert the rights of all owners of the debt.
(4) The debt balance at charge off , including
and an explanation of the amount, nature, and reason
for all post-charge-off fees and charges, and the
basis for their imposition imposed by the charge-off
creditor or any subsequent purchaser of the debt . This
paragraph shall not be deemed to require a specific itemization of
each charge.
(5) The date of default or the date of the last payment.
(6) The name and an address of the charge-off
creditor at the time of charge off, and the charge-off creditor'
s account number associated with the debt. The charge-off
creditor's name and address shall be in sufficient form so as to
reasonably identify it.
(7) The name and last known address of the debtor as
they appeared in the creditor's records at the time of
charge off prior to the sale of the debt .
For If the debt was sold
or resold prior to July
January 1, 2013, the debtor's name and last known address
will satisfy the requirements of this paragraph.
as they appeared in the debt owner's records on
December 31, 2012, shall be sufficient.
(8) The names and addresses of all persons or entities
that purchased the debt after charge off, including the plaintiff
debt buyer. The names and addresses of these persons or entities
shall be in sufficient form so as to reasonably identify them.
(9) That the debt buyer has complied with Section 1788.52.
(b) The document described in paragraph (2) of
subdivision (b) of Section 1788.52, shall be attached to the
complaint.
(c) The following separate written notice shall be served with the
complaint in at least 12-point type, with the words "VERY IMPORTANT"
in bolded print:
NOTICE TO CONSUMER
DEPENDING ON HOW MUCH TIME HAS PASSED SINCE YOUR DEBT BECAME PAST
DUE, YOU MAY HAVE THE ABILITY TO STOP A DEBT COLLECTION LAWSUIT OR
OTHER LEGAL ACTION AGAINST YOU. THIS RIGHT IS CALLED A "STATUTE OF
LIMITATIONS" DEFENSE. HOWEVER, FAILURE TO PAY YOUR DEBTS MAY
NEGATIVELY IMPACT YOUR CREDIT RATING FOR A PERIOD OF UP TO SEVEN
YEARS FROM THE DATE OF WHEN THE DEBT WAS CHARGED OFF OR PLACED FOR
COLLECTION.
IT IS VERY IMPORTANT THAT YOU RESPOND TO THESE DOCUMENTS. TO GET
HELP, YOU CAN CONSULT AN ATTORNEY, VISIT A LOCAL SELF-HELP CENTER, OR
VISIT HTTP://WWW.COURTS.CA.GOV/SELFHELP.HTM FOR MORE INFORMATION.
(d) In the event of a conflict between the requirements of
subdivision (c) and federal law, so that it is impracticable to
comply with both, the requirements of federal law shall prevail.
(e)
(c) The requirements of this title shall not be deemed
to require the disclosure in public records of personal, financial,
or medical information, the privacy of which is protected by any
state or federal law.
1788.60. (a) In an action initiated by a debt buyer, no default
or other judgment may be entered against a debtor unless
authenticated business records have been admitted
into evidence , authenticated through a sworn
declaration, are submitted by the debt buyer to the court to
establish the facts required to be alleged by paragraphs (3) to
(9) (8) , inclusive, of subdivision (a)
of Section 1788.58.
(b) No default or other judgment may be entered against a debtor
unless a copy of the document described in
paragraph (2) of subdivision (a)
(b) of Section 1788.52 is admitted into evidence
, authenticated through a sworn declaration, has been
submitted by the debt buyer to the court .
(c) In any action on a consumer debt, if a debt buyer plaintiff
seeks a default judgment and has not complied with the requirements
of this title, the court shall not enter a default judgment for the
plaintiff and may, in its discretion, dismiss the action.
1788.62. (a) A debt buyer that violates any provision of this
title with respect to any person shall be liable to that person in an
amount equal to the sum of the following:
(1) Any actual damages sustained by that person as a result of the
violation, including, but not limited to, the amount of any judgment
obtained by the debt buyer as a result of a time-barred suit to
collect a debt from that person.
(2) Additional Statutory damages in
an amount as the court may allow, which shall not be less than one
hundred dollars ($100) nor greater than one thousand dollars ($1,000)
per violation .
(b) In the case of a class action, a debt buyer that violates any
provision of this title shall be liable for any additional
statutory damages for each named plaintiff as
provided for in paragraph (2) of subdivision (a).
If the court finds that the debt buyer engaged in a pattern and
practice of violating any provision of this title, the court may
award additional damages to the class in an amount not to exceed the
lesser of five hundred thousand dollars ($500,000) or 1 percent of
the net worth of the debt buyer.
(c) (1) In the case of any successful action to enforce liability
under this section, the court shall award costs of the action,
together with reasonable attorney's fees as determined by the court.
(2) Reasonable attorney's fees may be awarded to a prevailing
debt buyer upon a finding by the court that the plaintiff's
prosecution of the action was not in good faith.
(d) In determining the amount of liability under subdivision (b),
the court shall consider, among other relevant factors, the frequency
and persistence of noncompliance by the debt buyer, the nature of
the noncompliance, the resources of the debt buyer, and the number of
persons adversely affected.
(e) A debt buyer shall have no civil liability under this section
if the debt buyer shows by a preponderance of evidence that the
violation was not intentional and resulted from a bona fide error,
and occurred notwithstanding the maintenance of procedures
reasonably adopted to avoid any error.
(f) An action to enforce any liability created by this title shall
be brought within one year from the last violation.
(g) Recovery in an action brought under the Rosenthal Fair Debt
Collection Practices Act (Title 1.6C (commencing with Section 1788)
or the federal Fair Debt Collection Practices Act (15 U.S.C. Sec.
1692 et seq.) shall preclude recovery for the same acts in an action
brought under this title.
1788.64. Any waiver of the provisions of this title is contrary
to public policy, and is void and unenforceable.
SEC. 3. Section 581.5 is added to the Code of Civil Procedure, to
read:
581.5. In a case involving consumer debt, as defined in Section
1788.2 of the Civil Code, and as regulated under Title 1.6C.5
(commencing with Section 1788.50) of Part 4 of Division 3 of the
Civil Code, if the defendant debtor appears for trial on the
scheduled trial date, and the plaintiff debt buyer either fails to
appear or is not prepared to proceed to trial, and the court does not
find a good cause for continuance, the court may, in its discretion,
dismiss the action with or without prejudice. Notwithstanding any
other law, in this instance, the court may award the defendant debtor'
s costs of preparing for trial, including, but not limited to, lost
wages and transportation expenses.
SEC. 4. Section 700.010 of the Code of Civil Procedure is amended
to read:
700.010. (a) At the time of levy pursuant to this article or
promptly thereafter, the levying officer shall serve a copy of the
following on the judgment debtor:
(1) The writ of execution.
(2) A notice of levy.
(3) If the judgment debtor is a natural person, a copy of the form
listing exemptions prepared by the Judicial Council pursuant to
subdivision (c) of Section 681.030, the list of exemption amounts
published pursuant to subdivision (e) of Section 703.150, a copy of
the form that the judgment debtor may use to make a claim of
exemption pursuant to Section 703.520, and a copy of the form the
judgment debtor may use to provide a financial statement pursuant to
Section 703.530.
(4) Any affidavit of identity, as defined in Section 680.135, for
names of the debtor listed on the writ of execution.
(b) Service under this section shall be made personally or by
mail.
SEC. 5. Section 706.103 of the Code of Civil Procedure is amended
to read:
706.103. (a) The levying officer shall serve upon the designated
employer all of the following:
(1) The original and one copy of the earnings withholding order.
(2) The form for the employer's return.
(3) The notice to employee of earnings withholding order.
(4) A copy of the form that the judgment debtor may use to make a
claim of exemption.
(5) A copy of the form the judgment debtor may use to provide a
financial statement.
(b) At the time the levying officer makes service pursuant to
subdivision (a), the levying officer shall provide the employer with
a copy of the employer's instructions referred to in Section 706.127.
The Judicial Council may adopt rules prescribing the circumstances
when compliance with this subdivision is not required.
(c) No earnings withholding order shall be served upon the
employer after the time specified in subdivision (b) of Section
699.530.
SEC. 6. Section 706.104 of the Code of Civil Procedure is amended
to read:
706.104. Any employer who is served with an earnings withholding
order shall:
(a) Deliver to the judgment debtor a copy of the earnings
withholding order, the notice to employee of earnings withholding, a
copy of the form that the judgment debtor may use to make a claim of
exemption, and a copy of the form the judgment debtor may use to
provide a financial statement within 10 days from the date of
service. If the judgment debtor is no longer employed by the employer
and the employer does not owe the employee any earnings, the
employer is not required to make such delivery. The employer is not
subject to any civil liability for failure to comply with this
subdivision. Nothing in this subdivision limits the power of a court
to hold the employer in contempt of court for failure to comply with
this subdivision.
(b) Complete the employer's return on the form provided by the
levying officer and mail it by first-class mail, postage prepaid, to
the levying officer within 15 days from the date of service. If the
earnings withholding order is ineffective, the employer shall state
in the employer's return that the order will not be complied with for
this reason and shall return the order to the levying officer with
the employer's return.
SEC. 7. Section 706.108 of the Code of Civil Procedure is amended
to read:
706.108. (a) If a writ of execution has been issued to the county
where the judgment debtor's employer is to be served and the time
specified in subdivision (b) of Section 699.530 for levy on property
under the writ has not expired, a judgment creditor may deliver an
application for issuance of an earnings withholding order to a
registered process server who may then issue an earnings withholding
order.
(b) If the registered process server has issued the earnings
withholding order, the registered process server, before serving the
earnings withholding order, shall deposit with the levying officer a
copy of the writ of execution, the application for issuance of an
earnings withholding order, and a copy of the earnings withholding
order, and shall pay the fee provided by Section 26750 of the
Government Code.
(c) A registered process server may serve an earnings withholding
order on an employer whether the earnings withholding order was
issued by a levying officer or by a registered process server, but no
earnings withholding order may be served after the time specified in
subdivision (b) of Section 699.530. In performing this function, the
registered process server shall serve upon the designated employer
all of the following:
(1) The original and one copy of the earnings withholding order.
(2) The form for the employer's return.
(3) The notice to the employee of the earnings withholding order.
(4) A
copy of the form that the judgment debtor may use to make a claim of
exemption.
(5) A copy of the form the judgment debtor may use to provide a
financial statement.
(6) A copy of the employer's instructions referred to in Section
706.127, except as otherwise prescribed in rules adopted by the
Judicial Council.
(d) Within five court days after service under this section, all
of the following shall be filed with the levying officer:
(1) The writ of execution, if it is not already in the hands of
the levying officer.
(2) Proof of service on the employer of the papers listed in
subdivision (c).
(3) Instructions in writing, as required by the provisions of
Section 687.010.
(e) If the fee provided by Section 26750 of the Government Code
has been paid, the levying officer shall perform all other duties
required by this chapter as if the levying officer had served the
earnings withholding order. If the registered process server does not
comply with subdivisions (b), where applicable, and (d), the service
of the earnings withholding order is ineffective and the levying
officer is not required to perform any duties under the order and may
terminate the order and may release any withheld earnings to the
judgment debtor.
(f) The fee for services of a registered process server under this
section shall be allowed as a recoverable cost pursuant to Section
1033.5.
SEC. 8. Section 706.122 of the Code of Civil Procedure is amended
to read:
706.122. The "notice to employee of earnings withholding order"
shall contain a statement that informs the employee in simple terms
of the nature of a wage garnishment, the right to an exemption, the
procedure for claiming an exemption, and any other information the
Judicial Council determines would be useful to the employee and
appropriate for inclusion in the notice, including all of the
following:
(a) The named employer has been ordered to withhold from the
earnings of the judgment debtor the amounts required to be withheld
under Section 706.050, or such other amounts as are specified in the
earnings withholding order, and to pay these amounts over to the
levying officer for transmittal to the person specified in the order
in payment of the judgment described in the order.
(b) The manner of computing the amounts required to be withheld
pursuant to Section 706.050.
(c) The judgment debtor may be able to keep more or all of the
judgment debtor's earnings if the judgment debtor proves that the
additional earnings are necessary for the support of the judgment
debtor or the judgment debtor's family supported in whole or in part
by the judgment debtor.
(d) If the judgment debtor wishes a court hearing to prove that
amounts should not be withheld from the judgment debtor's earnings
because they are necessary for the support of the judgment debtor or
the judgment debtor's family supported in whole or in part by the
judgment debtor, the judgment debtor shall file with the levying
officer an original and one copy of the "judgment debtor's claim of
exemption" and an original and one copy of the "judgment debtor's
financial statement."
SEC. 9. The provisions of this act are severable. If any provision
of this section or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
