To oppose a claim of Exemption, you must act fast. You must respond, in writing, within ten days from the date the Notice of Claim of Exemption was personally served on you, or 15 days from the date the Notice of Claim of Exemption was mailed to you, if notice was sent by mail to an address in California (CCP 703.550,684120).
You must fill out and file with the court two forms, which are available from the court clerk or law library:
- Notice of Opposition to Claim of Exemption and
- Notice of Hearing for Order Determining the Claim of Exemption.
1. Fill out Notice of Opposition to Claim of Exemption.
This form states that you oppose the debtor's Claim of Exemption.
Caption: Follow the format of your other court papers. Fill in the levying officer file number, located on the Claim of Exemption.
Item 1: Enter your name and address as the judgment creditor.
Item 2: Enter the name and last known address of the judgment debtor and his/her Social Security number, if you know it.
Item 3: Skip this unless the Claim of Exemption was made by someone other than the judgment debtor. This generally occurs only if you have levied on property in the debtor's possession that belongs to someone else.
Item 4: Enter the date the Notice of Claim of Exemption was mailed (it's on that form).
Item 5: Here you explain why you think the debtor's claim is incorrectly based on the statute cited for the exemption. For instance, if the debtor is claiming his/her expensive camera equipment should be exempt as tools of the trade (CCP 704.060), you may want to argue that he/her trade. You might state that the debtor is employed full time in another capacity, and photography is really just her hobby.
Item 5b: Check this box if you think the debtor's property shouldn't be exempt because his equity in the property is greater than the amount allowed by the exemption. In other words, you think the value of the property is more than the deductible amount. For example, say the debtor is claiming his works of art as exempt under CCP 704.040, because they are only worth $2,500. However, you know or suspect these paintings in his home and office are really worth much more. As long as you can show this at the hearing on your motion of opposition, the value over the allowable exemption will be found not exempt.
Reality Note: Obviously, it is difficult to contradict a debtor's statement as to the value of his property, since you have no independent means of appraising it. Your argument is likely to work only if the property's value is obviously much greater than that claimed. This might be the case, for example, if you are going after a big 24-karat gold ring, and you know that day's price for gold.
Item 5c: Skip this item unless you can think of other reasons why the debtor's claim of exemption should be denied, such as your belief that the debtor is making untrue statements.
Source by Chris Parava
