|Case Number: KC055031 Hearing Date: July 13, 2017 Dept: J |
Re: Citibank (South Dakota) N.A. v. Doo S. Yang (KC055031)
HEARING ON CLAIM OF EXEMPTION
Moving Party: Judgment Debtor Doo S. Yang
Respondent: Judgment Creditor Citibank (South Dakota) N.A.
This is a credit card collections action. The complaint, filed on 2/23/09, asserts a cause of action against Doo S. Yang (“Yang”) and DOES 1-5 for Common Counts. On 5/1/09, Yang filed his answer. On 12/18/09, plaintiff filed a conditional Notice of Settlement of Entire Case. On 1/8/10, plaintiff dismissed the action, without prejudice.
On 4/2/12, plaintiff filed its Notice of Intention to Request Entry of Default and Default Judgment. On 10/22/12, the court set aside the 1/8/10 dismissal to permit plaintiff to file the conditional settlement agreement and declaration re default in payments and obtain judgment against Yang. On 10/22/12, the stipulated judgment was filed.
On 8/20/14, the court denied Yang’s claim of exemption.
Plaintiff/Judgment Creditor Citibank (South Dakota), N.A. (“Judgment Creditor”) opposes the Claim of Exemption submitted by Defendant/Judgment Debtor Doo S. Yang (“Yang”).
A judgment creditor wishing to oppose the claim of exemption must file a Notice of Opposition with the levying officer within 10 days after the date the Notice of Claim of Exemption was mailed. (CCP § 706.105(d).) (This 10–day period is not extended where the claim of exemption was served by mail; see CCP § 684.310 and Comment to CCP § 706.105.) In addition to timely filing the Notice of Opposition, the judgment creditor must file with the court within 10 days after the levying officer mailed the Notice of Claim of Exemption, a Notice of Motion for an Order Determining the Claim of Exemption. (CCP § 706.105(e).) If the notice of opposition and notice of motion are timely filed, the court hearing on the claim of exemption must be held no more than 30 days after the notice of motion is filed (unless continued by the court for good cause). The levying officer must file the originals of the claim of exemption and notice of opposition with the court. (CCP § 706.105(e).)
“[T]he statutory procedure mandates the levying officer to release the wages or other property of the debtor when there is an untimely filing of the notice of opposition to the claim of exemption and if there is an untimely filing of either the notice of opposition to the claim of exemption or the notice of hearing, there can be no claim of exemption hearing.” Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 10.
The Notice of Filing Claim of Exemption herein states that it was mailed on 6/3/17. (Notice of Opposition, Fong Decl., ¶ 4, Exhibit “3”). The Notice of Hearing on Claim of Exemption and the Notice of Opposition to Claim of Exemption were served on the levying officer on 6/14/17, and filed with the court on 6/16/17.
It appears, then, that the notice of opposition was not timely filed. The claim of exemption is therefore granted.