Notice of Levy received yesterday - UNITED MERCHANTS (BANK OF AMERICA)

[Ladynred]

So I could calculate what the kids get for SSI and Social Security and see what the amount would be for a six month period, correct?

Not necessary. They get the same amounts each month, right ? The levy is in effect for 6 months, but you don't have to list 6 months worth of the amounts.

It would probably be best to list each deposit for each child separately. So that would give you 2 lines per child.

I did look at the kelly blue book and they had two prices one value and one for trade in.

Try this site: http://www.carquotes.com/blackbook.asp

It will give you a trade-in value and will take into consideration the mileage and condition of the vehicle. Then subtract 10% - that should be about what they'd get at auction IF they could take the car.

Exemptions 704.20 - In reading the CA Code, if I understand that correctly it means that all your your USUAL personal property is exempt, that's why no $$ amount.

Same goes for 704.50.

 

[autismfamily]

Notice of opposition to claim of exemption

I got this in the mail today. First thing I have received since sending back the financial statment and claim of exemption.

Since I sent this off I did more research and wonder about this I found on the sheriff website (sheriff is the levying officer)

LEGAL NAME OF DEBTOR
The Sheriff cannot levy on a debtor's property unless the debtor is properly named. The legal name of the debtor is very important. For instance, a fictitious business name (dba) is purely descriptive and is not a legal name. If the writ of execution lists the debtor as "John Smith dba Smith Plumbing," the legal name of the debtor is John Smith, not Smith Plumbing.

The levy and writ of judgment were both sent to me via Sheriff and addressed me by my old name with my first husband as the judgment debtor. I have had another legal last name for the last ten years that they did not use.

I figured after reading the site that they would be sending me the papers again with the correct legal name. They did not do so, but these forms for Enforcement of Judgment and Notice of Hearing have the same old name as the defendant. These two forms have name and address of judgment debtor. That now has my actual name.

My first question is should I call the levying officer and ask about the original forms being in the old name and not the legal name, OR do I bring this up at the hearing and then they would have to pay more fees and have more papers filed?

The document for the hearing states the creditor will not appear at the hearing. The date and time means that I will have to bring both my kids. I need to reschedule for when they are at camp so that it will not be disruptive to the courts, plus one is not toilet trained and I know from experience with Family Law in Los Angeles courts that the child must be to be watched by their day care. Not sure if the community this is has child care.

Second question - Form EJ-170 - Notice of Opposition to claim of exemption.

4. The notice of filing claim of exemption states it was mailed on ---------(Date) but this was under the wrong name, so may have to start all over with the forms under the legal name of debtor?

5. The item or items claimes as exempt are:
A (checked off) Not exempt under the statutes relied upon in the Claim of Exemption. ????? what does this mean???

6. The facts necessary to support item 5 are:
as follows (checked) defenant failed to provide any proof of social security income. also, the financial statement reflects that the defenant makes $1239.00 less than the monthly expenses.

They had this typed in all caps and do not know the correct spelling of defendant. Are we supposed to attach proof with the financial statement? Was I supposed to send the levying officer the award letters for my children? Also the financial statement had a spot for monthly income for my children and then for me, so I did not add their income to my total.

The forms they initially sent show another name for the judgment debtor than the one sent today. I think that needs to be changed so they all say the same thing and they need to re file and pay the levying officer again for their error.

Does that seem right? Do I call the levying officer and ask them about it and try to change the date and time and explain about my kids?

What proof should I bring for Social security? Original award letters, the redetermination letters from last year?

Thanks again for any advice.

Bonnie

 

[Ladynred]

Did you ever make it to legal aid or whatever legal help you were going to try to get ??

5. The item or items claimes as exempt are:
A (checked off) Not exempt under the statutes relied upon in the Claim of Exemption. ????? what does this mean???

6. The facts necessary to support item 5 are:
as follows (checked) defenant failed to provide any proof of social security income. also, the financial statement reflects that the defenant makes $1239.00 less than the monthly expenses.

What they're saying is they don't accept your claim of exemption of the Social Security money in the bank. #6 then says that they don't believe you and don't accept your claim of exemption because you didn't provide them any proof of that its Social Security money and therefore exempt.

You probably should have attached whatever supporting documents you have that show EXACTLY what you/your children get from SS and is therefore direct deposited to your bank account. If you can, get a statement from the bank that shows not only the source of the funds but that they are, in fact, direct deposited. Your bank statements should show the direct deposits, hopefully the bank statement also lists the SOURCE of the money is SS.

You can certainly ask for a postponement of the hearing date. Just explain why you need the postponement. If the court won't wait as long as you need them to, you may have to find some way to have your kids taken care of and go to court.

Take with you every single shred of proof you have that the funds are from social security. This 'added income' - even though its not precisely YOUR income would also counter their claim in #6 that you have so much more expenses than income.

I would also amend your claim of exemption forms to take with you to court. Attach additional copies of the proof of the social security income and fill in the part of the financial statement that is provided for your children's 'income'. If asked in court for these, you would already have them done. I would also urge you try again for legal help and the letter referred to by the CA lawyer I asked about this before.

I'm not sure what to make of the whole legal name thing, that's why you really need legal aid. Since there is already a judgment against you, it may change things.

 

[autismfamily]

CA State - I went to court this past week and had to bring my kids along. It was hard to get any legal advice due to their disability and the time frame, etc.

Anyway the Judge basically said he would deny the claim of exemption. Then my son walked up to the judge and stomped his feet. My other son then came toward me with a book to talk about. We had a flat tire on the street parking when we got out.

The judge continued the matter for later this month when my one son will be in school. But since he would have denied the claim then he will still do it later in the month.

He told me to get legal advice. This is easier said than done. I cannot get legal aid to help me unless I go there across town with both my kids and sit and wait. It is impossible to do because I can hardly hear or concentrate when running after this kid all day.

I barely heard what the Judge said because he was so noisy. What I do not understand is this:

under 703.580 - (a) The claim of exemption and the notice of opposition to the claim of exemption constitute the pleadings, subject to the power of the court to permit amendments in the interest of justice.
(b) At a hearing under this section, the exemption claimant has the burden of proof.

I brought the proof with me and the Judge told me I needed to see a lawyer, yet it seems I was complying with the code to provide burden of proof.

If you only have ten days to submit the claim of exemption, can I really send another one off to the levying officer to have forwarded to the creditor? That would be rejected and it seems no way around this to get someone to read the proof and make a ruling on it.

But the fact still remains that the levying officer cannot levy on my property until the writ of levy is filed in my legal name. Therefore do I call the sheriff and ask them about this or just send the proof to them and wait for the next detail?

Also what type of proof do I bring for my other exemptions, like my vehicle. Do I get the Dr to write a letter stating I need the car to transport my disabled kids?

I just had the IHSS reassessment the same day as court and the hours could be lowered, which would mean my income is less. The GOV did sign the budget but I hear big changes with medical and that is the insurance my kids get.

I did a google search for burden of proof and found this:

http://www.casb.uscourts.gov/PDF&Downloads/greenfield.exemption.pdf

Something about CA law not the same, but it cannot be cut and pasted and it keeps freezing on me. I think this has to do with bankruptcy law though.

Who do I submit the burden of proof of my exemptions to?

What is the code and/or form number to appeal the opposition to claim of exemption, or do I wait for court again and then what?

I am sorry I know I was told about legal assistance. I left message with Protection & Advocacy, Binder and Binder, filled out forms for another law firm and no one has responded.

Nowhere in the codes of explaining about the claim of exemption did it mention to send proof and it was not specific as to what proof is.

I followed the code guidelines and brought the proof, but Judge said see a lawyer. If one cannot obtain a lawyer what recourse do they have? Can the court appoint a public defender?

Anyone who understands autism and the SSI does not do civil cases and basically they meaning legal aid said they could not help me.

There must be a form I can fill out stating here is the attachments. How can they deny the claim just because of this and then not explain how to rectify it? The creditor was not in court either or the levying officer.

I am scared to call the Sheriff since they hold the cards, but since nothing has happened as of this date, I feel they will not attach the levy or initiate it due to the not legal name on the document.

Sorry again for asking, but would it be best to fill out forms with attachments and just send them or call sheriff and ask about the legal name issue. Then if the creditor has to re file the levy with the legal name I could do the exemption and add attachments. I wonder though about sending copies of bank stmts because then they would have the acct numbers.

Any smidgeon of assistance is much appreciated at this stage of the dilemma. I am worried the sheriff will come and take everything we have, even though we do not have enough to cover the $6,000 debt. What about the Americans with disabilities act, would that apply to my kids. Why should their money be at risk due to a technical glitch meaning they never listed what to send along with the exemption.

BONNIE

 

[Ladynred]

Bonnie,
I REALLY hate to say this but you HAVE to find a way to get legal help or you are going to lose the only money you have to care for your kids. Is there no one you know that can watch your kids for a few hours ?? This is beyond you doing it yourself, even the judge has told you that. Call your local bar association and ask them if they can refer you to any lawyers who are doing pro bono (no fee) work in your area.

Tell me exactly what happened in court. What did the judge ask or say to you ? What did you say, what did you take with you ??? Why did he say he would still deny the exemption ??

You do have one other alternative if all else fails to stop this - file for bankruptcy. It sounds drastic, but what's more drastic - filing for BK or losing the money you need to support and care for your kids ?????

 

[autismfamily]

Basically the Judge read the paperwork that was sent by the creditor - the notice of opposition to claim of exemption. They were not there and I had the folders with me, but was never given the opportunity to present them.

It was very confusing as to the reason for the hearing in the first place. It was scheduled in section 3 but the door had a sign saying closed and go to Section D.

Now this Judge told me I will go back to section 3 later this month. I did tell him about the legal name issue when he asked me if the name was an AKA.

He said he had to deny the claim, but then said he would give me more time so I got the notice the next day from court clerk stating the matter is continued.

That was it, never really said anything but read what the creditor sent me.

Bonnie