CITY NATIONAL BANK VS. INTEGRATED HEALTH ASSETS, INC., ET

Tentative Rulings

Case Number: YC055002    Hearing Date: January 30, 2020    Dept: SWB

Hearing Date: January 30, 2020

Moving Parties: Judgment debtor’s spouse Dianne M. Blackburn

Responding Party: Judgment creditor City National Bank

Claim of Exemption

The court considered the claim of exemption, opposition, and reply.

RULING

The claim of exemption is GRANTED, in part. The court ORDERS that judgment creditor may withhold $412 per month of judgment debtor Anthony Occhionero’s net income.

Pursuant to CCP §703.580(e), the court clerk shall promptly transmit a certified copy of the order to the levying officer. Any funds held by levying officer are ordered released to judgment creditor to apply to the satisfaction of the money judgment.

BACKGROUND

On September 25, 2007, a default judgment was entered in favor of CNB and against Integrated Health Assets, Inc. and Robert W. Blackburn aka Robert Blackburn aka Robert Wayne Blackburn in the amount of $37,382.31.

On September 13, 2017, the judgment was renewed.

On February 14, 2019, the court granted judgment creditor’s motion to charge judgment debtor’s interest in a LLC, for an assignment order, and a restraining order.

According to the memorandum of costs after judgment filed on November 22, 2019, the principal remaining is $76,154.89 and the accrued interest is $16,681.48.

LEGAL AUTHORITY

“At a hearing on a third-party claim, the third person has the burden of proof.” CCP §720.360.

CCP §703.080 states, “(a) Subject to any limitation provided in the particular exemption, a fund that is exempt remains exempt to the extent that it can be traced into deposit accounts or in the form of cash or its equivalent. (b) The exemption claimant has the burden of tracing an exempt fund. . . . “

DISCUSSION

Judgment debtor’s spouse Dianne M. Blackburn requests an exemption.

Claimant contends that in December 2019, she received a notice of levy of her individual banking and retirement accounts located at Schools First Federal Credit Union. The accounts subject to levy are her individual checking account, her money market account, and an IRA account.

She contends that the fair market value of her interest in the property is approximately $66,243. She asserts that the property is her separate party and not subject to levy for spouse’s debts pursuant to Family Code §913 and as evidenced by Family Code §1500 by the Post-Nuptial Agreement entered into on April 13, 2004.

In opposition, judgment creditor argues that claimant has provided no evidence to support her claim that the levied funds are from retirement accounts. Further, judgment creditor argues, the purported post-nuptial agreement is irrelevant until the source of all funds is disclosed. Judgment creditor contends that the debtor and spouse have transferred assets numerous times, and that a wire of $50,000, contemporaneous with a deed of trust evidencing a loan for $560,000 in 2018 was deposited into a joint account but was not there long enough to be captured by plaintiff’s levy. Plaintiff suspects that this money has been deposited in spouse’s bank accounts. Judgment creditor also contends that claimant has not shown that the levied funds are within the scope of the post-nuptial agreement.

In reply, claimant provides a supplemental declaration and bank statements. She contends that there is no evidence of a fraudulent conveyance.

The court finds that claimant has provided sufficient evidence to meet her burden that the funds are exempt as retirement accounts and that her income and accounts are her separate property. See CCP §703.140(b)(10)(E); Family Code §913(b) (“Except as otherwise provided by statute: (1) The separate property of a married person is not liable for a debt incurred by the person’s spouse before or during marriage.”); Family Code §1500 (“The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement.”).

Therefore, the claim of exemption is GRANTED.

Judgment creditor is ordered to give notice of this ruling.