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Unity in the Community (Gibbons Park) 5/22/2022

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BANK GARNISHMENT (WRIT OF EXECUTION)

Court Document required Original Writ of Execution-Money Judgment (form EJ-130); IF APPLICABLE: spousal affidavit (original and two copies); fictitious business name statement (one certified copy plus two copies); affidavit of identity (three copies); court order authorizing a levy on a third person’s bank account (original and two copies); application for writ of execution (three copies).
Purpose of Process The writ authorizes the Sheriff to serve a garnishment on the debtor’s bank. The bank is required to remit monies from the debtor’s account to the Sheriff or explain why funds will not be remitted.
Sheriff's Instructions Specify the name and physical address of the branch of the financial institution (bank, credit union, etc.) where the debtor’s account is located. Specify the name of the debtor whose account is to be garnished and any account information. Reference any additional document (affidavit of identity, spousal affidavit, fictitious business name statements court order to levy on a third party’s account.) The creditor’s attorney or the creditor (if the creditor doesn’t have an attorney) must sign and date the instructions. If the Court issued the writ electronically, your instructions shall contain all the identified information pursuant to CCP 687.010(e) OR complete the Electronic Writ Declaration.
Time for Service The writ of execution expires 180 days after the issuance.
Method of Levy Garnishment is the method of levy in which the Sheriff serves a copy of the writ, notice of levy and memorandum of garnishee on the financial institution. The bank is required to remit funds to the Sheriff or explain in the memorandum of garnishee any reason for not remitting funds.
Fee See Fee Schedule
Proof of Service A proof of service is not issued. Instead, a Return to Court detailing the Sheriff’s actions is prepared which accompanies the writ when it is returned to the court.
Checklist

Proper fee deposit

Sheriff Instructions

Original Writ of Execution-Money Judgment (form EJ-130)

Electronic Writ Declaration if applicable

Original and two copies of any spousal affidavit (if applicable)

One certified copy of an unexpired fictitious business name statement plus two copies (if applicable)

Three copies of an affidavit of identity (if applicable)

Original and two copies of a court order authorizing a levy on a third person’s bank account (if applicable)

One copy of the application for writ of execution (if applicable)

Information Guide
The creditor may instruct the Sheriff to levy on a judgment debtor's deposit account at a financial institution (bank, savings and loan, credit union) pursuant to a writ of execution (money judgment). A deposit account standing only in the name of the debtor or a joint account shared by the debtor and another person is subject to levy. The garnishment must be served at the specific branch where the account is maintained unless the Sheriff is otherwise directed by the particular bank as having a centralized location for service and only attaches those funds in the account at the time of service. The bank is required to mail the funds to the Sheriff within 10 days after service of the garnishment. If funds are not remitted, the bank must mail a memorandum of garnishee to the Sheriff explaining why the funds were not remitted. The Sheriff will mail a copy of the memorandum to the creditor.
If the account is a joint account standing in the name of the debtor and someone who is not a debtor, the bank will provide the name and address of the third party in the memorandum of garnishee. The Sheriff will notify the third party and wait 15 days for the third party to contest the levy. If the third party takes no action within the 15-day period, the Sheriff will mail a notice to the bank directing the bank to remit the funds to the Sheriff. A court order is required if the account stands in the name of a third party and is not shared with the debtor, unless the third party is a spouse.
A spousal affidavit is required to levy on an account standing in the name of a spouse who is not a named debtor, unless the account is shared with the debtor.
An unexpired, certified copy of a fictitious business name statement is required to levy on an account standing in the name of a fictitious business, e.g., John Smith dba Smith Enterprises. However, all parties listed as registrants in the fictitious business name statement must be either a debtor or the spouse of a debtor. The Sheriff cannot serve the garnishment if one of the registrants is not a debtor or spouse.
An affidavit of identity is required if the account stands in an alias name of the debtor that was added by the court when the clerk issued the writ.
A memorandum of garnishee that indicates the debtor’s account is direct deposit social security or public benefits account operates as a claim of exemption. The Sheriff will mail the memorandum together with instructions on how to oppose the exemption to the creditor. If the creditor does not timely oppose the exemption, the Sheriff must release the levy.