Collect money from a bank account
Once you have a Writ of Execution, you write instructions for the sheriff to have the money taken from the other side's bank account or a safe deposit box. This is called a bank levy. There is a fee for this service.
About bank levies
There are limits to what the sheriff can take from a bank account
Some kinds of deposits can't be taken (they're exempt), like Social Security or Supplemental Security Income. Exemptions From the Enforcement of Judgments (form EJ-155) has a complete list. Also, enough money must be left in the account to meet the person's basic needs. The exact amount changes every year.
The bank will let you know if they can't take the money. The other side can also ask the court to stop the levy or take less money.
Bank levies are one-time actions
The bank only takes out money one time for each levy. They do this when they get the levy. If you want to try to take money again, you'll need to do another levy.
Get Writ of Execution
You need a Writ of Execution to do a bank levy. A Writ of Execution tells the sheriff that they have the legal authority to help enforce a judgment. You cannot levy a bank account without one. The bank levy tells the bank to give the money to the sheriff for you. Writs expire after 180 days. After that, you'll need to get a new one.
If you don't have one or it's been more than 180 since you got one, you'll need to get a new one.
Find out which bank branch handles levies
Not all local banks process levy paperwork. Banks with 10 or more branches must choose a central place where they can be served forms. This is optional for banks with less than 10 branches.
- Find out which branch handles levies
- Figure out which county that bank branch is located in
Contact the sheriff's office to see if they do levies
In some counties, a sheriff (in a few counties, a marshal) will levy the money from the bank account. They are called the levying officer. If they don't, you may need to hire a professional process server.
Check with the sheriff's website or contact their office.
- Find out if they do bank levies.
- If so, ask if they have any forms to fill out or other steps you need to take. Usually, you need to write up instructions for them.
- Find out if they need copies of the Writ of Execution in addition to the original.
- Find out the cost. There's a set fee, usually around $40.00.
Write up instructions
If the sheriff doesn't have a form, you'll need to write up your own instructions for the sheriff.
You have to give them details about how and where to collect the money, for example: what bank, where to serve the levy, and the name of the debtor. This can be written or typed up like a letter.
In some special situations, the sheriff will need more paperwork to get money from a bank account.
For a spouse or registered domestic partner's account
California law allows you to get money from the other side’s spouse’s or registered domestic partner’s bank account even when the name of the person who owes you money isn’t on the account. To do this, you must give a declaration under oath (sworn written statement) to the sheriff stating that the person whose account is to be levied is married to the person who owes you money. This is called a Spousal Affidavit. You can use Declaration (form MC-030).
Fictitious Business Name Statement
If the person who owes you money has a Fictitious Business Name (for example, Jonathan Smith DBA Smith Enterprises), money can be taken from that account if the business is registered only in the person who owes you money or their spouse/domestic partner’s names. To get money from this kind of account, you will need to give the sheriff an unexpired, certified copy of their Fictitious Business Name Statement.
Decide when to have the sheriff give the Writ to the bank
A bank levy only takes money from the other side’s bank account when the bank is served. So you want the sheriff to serve the bank on a day you think there will be more money in the account. For example, right after they’re paid or right before they pay rent.The sheriff can’t always serve a levy on the date you need. With a registered process server (rather than the sheriff) you can give the exact date for them to serve the bank. But, this will cost you more as you'll have to pay the server and the sheriff.
If you hire a process server, they'll deliver the papers to the other side, the bank, other account holders, and the sheriff. The sheriff will handle the rest, including receiving and releasing funds.
Deliver the Writ, instructions, and fee to the sheriff
Bring or mail to the sheriff:
- Original Writ of Execution
- Written instructions
- Optional: Spousal Affidavit
- Optional: Certified Fictitious Business Name Statement
If you hired professional process server, they will do this.
Wait for bank and other side to respond
After the sheriff serves the bank and the other side with levy paperwork, a few things may happen.
What the bank must do
The bank has to figure out if the money can't be taken (it's exempt).
- If the bank thinks the money is exempt, it will send the sheriff a written note saying why. The sheriff will send this to you.
- If the bank can take the money, the bank will send a report to the sheriff (a Memorandum of Garnishee) the money to the sheriff.
If the sheriff gets the money, it must wait before releasing it to you to see what the other side does.
What the other side can do
The other side gets 15 to 20 days (20 days if they got their notice in the mail) to say if they think money can't be taken (it's exempt).
- If they think the money is exempt, they send the sheriff a Claim of Exemption and a Financial Statement. This says why they think the money is protected and gives you information about their finances. The sheriff will send you a copy. If you agree, you don't need to do anything. The sheriff will return the money.
If you don't agree the money is exempt, you can schedule a court hearing so a judge can decide.
How to oppose the Claim of Exemption.
Within 15 days of being served the Claim of Exemption, you must fill out, send the sheriff (levying officer), serve the other side, and file two court forms. If you miss the deadline, the sheriff will release the money to the other side.
1. Contact the court clerk to find out how to get a court date. Courts have different ways for you to set a court date. Call the clerk to find out how.
2. Fill out 2 forms
- Notice of Opposition to Claim of Exemption (form EJ-170)
- Notice of Hearing on Claim of Exemption (form EJ-175)
3. Make 2 copies of each form. One for the sheriff and one for the other side.
4. Send the sheriff copies of the forms.
5. Serve the copies on the other side at least 10 days before your court date. The server, someone 18 or older, not you, must mail or hand-deliver the Notice of Hearing on Claim of Exemption with the Notice of Opposition to Claim of Exemption attached to the other side.
The server must fill out and sign page 2 of Form EJ-175. This is the Proof of Service. Make a copy for yourself.
6. File the original and copies at the clerk’s office. The clerk will stamp your forms and return the copies to you.
Go to your court date. At the court date you'll need to explain to the judge why the money isn't exempt.
- If the other side doesn't respond after the deadlines passes, the sheriff will release the money to you. Contact the sheriff to find out how this happens.
- If you're still owed money, you can try to levy the bank account again or collect from the other side's paycheck if you know where they work.
- If you've spent money trying to collect, you can have these costs added to what's owed.
- If you're paid all that you're owed, you must let the court know.