Existing law provides that the period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment. Existing law provides a mechanism for a judgment debtor to apply by noticed motion for an order of the a court order vacating the renewal of the judgment. Existing law requires the judgment debtor to serve notice of the motion on the judgment creditor personally or by mail.

This bill would specify that mail service of the notice must be made by first-class mail and within three days of the application for the order.

Existing law provides that the period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment. Existing law provides a mechanism for a judgment debtor to apply by noticed motion for an order of the court vacating the renewal of the judgment. Existing law requires the judgment debtor to serve notice of the motion on the judgment creditor personally or by mail.

This bill would specify that mail service of the notice must be made by first-class mail and within three days of the application for the order.

Date of Hearing: June 13, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 642

Author:(Wieckowski) – As Introduced Ver:February 17, 2017

PROPOSED CONSENT (As Proposed to be Amended)

SENATE VOTE: 38-0

SUBJECT: CIVIL ACTIONS: RENEWAL OF JUDGMENTS

KEY ISSUE: IN ORDER TO PROVIDE ADDITIONAL CLARITY TO JUDGMENT DEBTORS ABOUT SERVICE REQUIREMENTS AND TO ENSURE THAT JUDGMENT CREDITORS RECEIVE PROPER NOTICE ON A MOTION TO VACATE A RENEWAL OF THE JUDGMENT, SHOULD THE MOTION PROCEDURE CLEARLY SPECIFY WHEN SERVICE SHOULD BE MADE, CONSISTENT WITH EXISTING LAW?

SYNOPSIS

After a judgment has been renewed by a judgment creditor, the judgment debtor may file a motion to vacate or modify the renewal. Under existing law, the judgment debtor is required to provide service to the judgment creditor on that motion. While these provisions of law require that service be made either personally or by mail, the code section does not specifically state when the judgment creditor must be served. When a code section is silent as to the timing of service for a motion, another section of the Code of Civil Procedure relating to service governs. Under that law, service of a motion must be filed at least 16 court days before the hearing. This lack of clarity can create a problem for a judgment debtor who is in propria persona, and is unaware of the proper service rules.

To provide additional clarity to judgment debtors about service requirements and to ensure that judgment creditors receive proper notice when a judgment debtor files a motion to vacate a renewal, this bill specifies that the notice of motion served on the judgment creditor shall be made by either personal service, or by first-class mail, consistent with the referenced service rules provided under existing law. This non-controversial bill is author-sponsored and has no opposition. The author plans to adopt in Committee non-controversial amendments reflected in this analysis.

SUMMARY: Clarifies the service requirements for a motion by a judgment debtor to vacate the renewal of the judgment. Specifically, this bill:

1. Specifies that the notice of motion served on the judgment creditor shall be made by either personal service, or by first-class mail, consistent with service rules provided under existing law.
2. Makes technical and conforming changes.

EXISTING LAW:

1. Allows a judgment creditor to renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered, as provided. (Code of Civil Procedure Section 683.120 (a). Unless stated otherwise, all further statutory references are to this Code.)
2. Requires the judgment creditor to serve a notice of renewal of the judgment on the judgment debtor. Service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal. (Section 683.160 (a).)
3. Provides that the filing of the application renews the judgment in the amount and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed, except as otherwise provided under existing law. (Section 683.120 (b).)
4. Provides that the renewal of a judgment as provided may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed, as provided. (Section 683.170 (a).)
5. States that no later than 30 days after service of the notice of renewal, as provided, the judgment debtor may apply by noticed motion for an order of the court vacating the renewal of the judgment.
6. Requires the judgment debtor to provide notice of the motion described in 5) to be served on the judgment creditor. Service shall be made personally or by mail. (Section 683.170 (b).)
7. Provides that upon the hearing of the motion, the renewal may be ordered vacated upon any ground, as provided, and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount. (Section 683.170 (c).)
8. Specifies that unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing, as provided. (Section 1005 (b).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: When a money judgment or a judgment for possession or sale of property is entered by a California court, the person who obtains the judgment—the judgment creditor—has 10 years to enforce the judgment. If the judgment is not satisfied during the 10 year period, the judgment creditor may file an application to renew the judgment for another 10 years. Under existing law, the judgment creditor is required to serve a notice of renewal of the judgment on the person whom a judgment is rendered against—the judgment debtor—and serve the notice of renewal by personal service or by first-class mail. Generally, the judgment is renewed upon the court’s receipt of the judgment creditor’s application. (See Fid. Creditor Serv. v. Browne (2001) 89 Cal.App.4th 195, 198.)

Within 30 days of the notice of renewal, the judgment debtor may make a motion to vacate or modify the renewal. Under existing law, the judgment debtor is required to serve notice of the motion on the judgment creditor. While these provisions of law require that service be made to the judgment creditor either personally or by mail, these sections do not specifically state when the judgment creditor must be served. Accordingly, when a provision of law is silent as to the timing of service, Code of Civil Procedure Section 1005 requires that all moving and supporting papers be served and filed at least 16 court days before the hearing. This can create a problem for a judgment debtor who is in propria persona, and is unaware of the proper service rules.

In support of this bill, the author writes:

Existing law is silent on when judgment debtors are required to notify judgment creditors of an effort to vacate the renewal of a judgment. This bill will add clarity for both parties by requiring the notice of the motion is provided in a timely fashion, generally within 16 court days.

This bill. This bill, as proposed to be amended, specifies that, in the instance that a judgment debtor files a motion to vacate, the judgment debtor must provide service on the judgment creditor—whether service is achieved by personal service or by first-class mail—consistent with the service rules for other motions. Given that many judgment debtors seeking a motion to vacate are likely to be in propria persona, it would seem that this bill would assist judgment creditors (by ensuring that they have proper notice from the judgment debtor) and help judgment debtors (by ensuring that their motions to vacate are not denied simply on the ground for inadvertent failure to provide timely service on judgment creditors). To that end, the author plans to accept the following amendments in Committee:

On page 2, line 8, delete lines 8 through 9, inclusive and insert:

first-class mail, consistent with subdivision (b) of Section 1005.

This bill also changes the phrase “including, but not limited to” to simply “including.” The word “including” presumes a non-exhaustive list, making the additional clause redundant. The rephrasing is not intended to make any substantive change to existing law.

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 642

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 6-0, 5/2/17

AYES: Jackson, Moorlach, Anderson, Monning, Stern, Wieckowski

NO VOTE RECORDED: Hertzberg

SUBJECT:

SOURCE: Author

DIGEST:

This bill specifies that a judgment debtor applying for an order of the court vacating a renewal of a judgment must serve notice of the motion personally or by first-class mail within three days of the application for the order. This bill also makes a stylistic change.

ANALYSIS:

Existing law:

1. Provides that, except as otherwise provided by statute, a judgment may not be enforced upon the expiration of 10 years after the date of entry of a money judgment or a judgment for possession or sale of property. (Code Civ. Proc. Sec. 683.020.)
2. Provides that the period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment. (Code Civ. Proc. Sec. 683.110(a).)
3. Provides that, except as otherwise provided, a judgment creditor may renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered. The filing of the application renews the judgment and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed. (Code Civ. Proc. Sec. 683.120.)
4. Provides that the judgment creditor shall serve a notice of renewal of the judgment on the judgment debtor and that service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal.
5. Provides that a renewal of a judgment may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed. (Code Civ. Proc. Sec. 683.170(a).)
6. Provides that not later than 30 days after service of the notice of renewal, the judgment debtor may apply by noticed motion for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. (Code Civ. Proc. Sec. 683.170(b).)
7. Provides that the renewal may be ordered vacated at the hearing upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount. (Code Civ. Proc. Sec. 683.170(c).)

This bill specifies that mail service of the notice must be made by first-class mail and within three days of the application for the order.

Background

When a money judgment or a judgment for possession or sale of property is entered in a court of this state, the person in whose favor the judgment is rendered, the judgment creditor, has 10 years in which to enforce such judgment. However, this period of enforceability may be extended by filing an application for renewal of the judgment with the court in which the judgment was entered. The filing of the application renews the judgment and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed. The judgment creditor shall serve a notice of renewal of the judgment on the person against whom a judgment is rendered, the judgment debtor, and that service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal.

In response, the judgment debtor may apply by noticed motion for an order of the court vacating the renewal of the judgment. The renewal may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect. The judgment debtor is required to serve notice of the motion on the judgment creditor. Such service is required to be made personally or by mail.

This bill specifies that notice of the motion to vacate a renewal, if not made personally, must be made by first-class mail within three days of the application for the order. This bill also makes a stylistic change.

Comments

The author writes:

Under existing law, it is not clear that judgment creditors will receive timely notice of an effort to vacate the renewal of a judgment. This bill will ensure that the notice of the motion is provided in a timely fashion so that judgment creditors are aware of and can timely respond to any effort to vacate a renewal of judgment that they have sought.

This bill would specify that when a judgment debtor applies for an order of the court vacating the renewal of the judgment, the judgment debtor must serve notice of the motion on the judgment creditor either personally or by first-class mail. Further, if service is by mail, then it must be sent within three days of the date on which the application for the order is made.

Syncing the notice provisions and ensuring timeliness

Currently, when a judgment creditor is attempting to renew a money judgment or a judgment for possession or sale of property, it must serve notice on the judgment debtor and that service must be made personally or by first-class mail. This bill requires a judgment debtor, who in turn is seeking to vacate such a renewal, to also serve notice either personally or by first-class mail.

In order to ensure that judgment creditors are made aware of attempts to vacate renewals, this bill requires a judgment debtor attempting to vacate a renewal and who serves notice by first-class mail to do so within three days of the application for the order. Because a judgment essentially becomes void after the expiration of the enforceability period, ensuring a renewal is in place is critical to protecting such a judgment and its attendant benefits. Therefore, a judgment creditor should be made aware of an attempt to vacate said renewal in a timely manner. The three-day timeline for serving notice by first-class mail serves this end.

This bill also changes the phrase “including, but not limited to” to simply “including.” The word “including” presumes a non-exhaustive list, making the additional clause redundant. The rephrasing is not intended to make any substantive change to existing law.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/5/17)

None received

OPPOSITION: (Verified 5/5/17)

None received

Prepared by:

5/5/17 13:56:36

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 642 (Author:Wieckowski)

Version: February 17, 2017

Hearing Date: May 2, 2017

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Civil actions: renewal of judgments

DESCRIPTION

This bill would specify that a judgment debtor applying for an order of the court vacating a renewal of a judgment must serve notice of the motion personally or by first-class mail within three days of the application for the order. This bill would also make a stylistic change.

BACKGROUND

When a money judgment or a judgment for possession or sale of property is entered in a court of this state, the person in whose favor the judgment is rendered, the judgment creditor, has 10 years in which to enforce such judgment. However, this period of enforceability may be extended by filing an application for renewal of the judgment with the court in which the judgment was entered. The filing of the application renews the judgment and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed. The judgment creditor shall serve a notice of renewal of the judgment on the person against whom a judgment is rendered, the judgment debtor, and that service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal.

In response, the judgment debtor may apply by noticed motion for an order of the court vacating the renewal of the judgment. The renewal may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect. The judgment debtor is required to serve notice of the motion on the judgment creditor. Such service is required to be made personally or by mail.

This bill would specify that notice of the motion to vacate a renewal, if not made personally, must be made by first-class mail within three days of the application for the order. This bill would also make a stylistic change.

CHANGES TO EXISTING LAW

Existing law provides that, except as otherwise provided by statute, a judgment may not be enforced upon the expiration of 10 years after the date of entry of a money judgment or a judgment for possession or sale of property. (Code Civ. Proc. Sec. 683.020.)

Existing law provides that the period of enforceability of a money judgment or a judgment for possession or sale of property may be extended by renewal of the judgment. (Code Civ. Proc. Sec. 683.110(a).)

Existing law provides that, except as otherwise provided, a judgment creditor may renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered. The filing of the application renews the judgment and extends the period of enforceability of the judgment as renewed for a period of 10 years from the date the application is filed. (Code Civ. Proc. Sec. 683.120.)

Existing law provides that the judgment creditor shall serve a notice of renewal of the judgment on the judgment debtor and that service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal.

Existing law provides that a renewal of a judgment may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed. (Code Civ. Proc. Sec. 683.170(a).)

Existing law provides that not later than 30 days after service of the notice of renewal, the judgment debtor may apply by noticed motion for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. (Code Civ. Proc. Sec. 683.170(b).)

Existing law provides that the renewal may be ordered vacated at the hearing upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount. (Code Civ. Proc. Sec. 683.170(c).)

This bill would specify that mail service of the notice must be made by first-class mail and within three days of the application for the order.

COMMENT

1. Stated need for the bill

According to the author:

Under existing law, it is not clear that judgment creditors will receive timely notice of an effort to vacate the renewal of a judgment. This bill will ensure that the notice of the motion is provided in a timely fashion so that judgment creditors are aware of and can timely respond to any effort to vacate a renewal of judgment that they have sought.

This bill would specify that when a judgment debtor applies for an order of the court vacating the renewal of the judgment, the judgment debtor must serve notice of the motion on the judgment creditor either personally or by first-class mail. Further, if service is by mail, then it must be sent within three days of the date on which the application for the order is made.

2. Syncing the notice provisions and ensuring timeliness

Currently, when a judgment creditor is attempting to renew a money judgment or a judgment for possession or sale of property, it must serve notice on the judgment debtor and that service must be made personally or by first-class mail. This bill would require a judgment debtor, who in turn is seeking to vacate such a renewal, to also serve notice either personally or by first-class mail.

In order to ensure that judgment creditors are made aware of attempts to vacate renewals, this bill would require a judgment debtor attempting to vacate a renewal and who serves notice by first-class mail to do so within three days of the application for the order. Because a judgment essentially becomes void after the expiration of the enforceability period, ensuring a renewal is in place is critical to protecting such a judgment and its attendant benefits. Therefore, a judgment creditor should be made aware of an attempt to vacate said renewal in a timely manner. The three-day timeline for serving notice by first-class mail serves this end.

This bill also changes the phrase “including, but not limited to” to simply “including.” The word “including” presumes a non-exhaustive list, making the additional clause redundant. The rephrasing is not intended to make any substantive change to existing law.

Support: None Known

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: SB 298 (Wieckowski, 2017) would make changes to the process for a judgment debtor to file a claim of exemption with a levying officer and would exempt from a levy money in a judgment debtor’s deposit account in an amount equal to or less than the greater of $4,800 or the state minimum wage multiplied by 320, unless the levy would satisfy a child or spousal support judgment. This bill is currently in the Senate Judiciary Committee.

Prior Legislation: None Known

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