Published: 2015-07-08
Key Benefits:
A third person may give an undertaking to release property pursuant to this chapter in the following cases:
(a) Where the third person claims ownership or the right to possession of real property that has been levied upon under a writ of attachment or a writ of execution.
(b) Where the third person claims ownership or the right to possession of personal property that has been levied upon under a writ of attachment, a writ of execution, or a writ of sale.
(c) Where the third person claims a security interest in or a lien on personal property that has been levied upon under a writ of attachment, a writ of execution, or a writ of sale.
(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)
The third person shall file the undertaking to release property with the levying officer, together with two copies of the undertaking:
(a) At the time the third person files a third-party claim pursuant to Chapter 2 (commencing with Section 720.110) or Chapter 3 (commencing with Section 720.210).
(b) If the third person has previously filed a third-party claim to the property, at any time before the levying officer does any of the following:
(1) Sells the property.
(2) Delivers possession of the property to the creditor.
(3) Pays proceeds of collection to the creditor.
(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)
(a) The undertaking to release property shall contain a description of the property to be released and shall describe the interest of the third person.
(b) The undertaking shall be made in favor of the creditor and shall provide that, if the debtor is finally adjudged to have an interest in the property levied upon, the third person shall pay to the creditor the lesser of the following:
(1) The amount required to satisfy the judgment against the debtor of the creditor who had the lien on the property.
(2) A sum equal to the market value of the debtor’s interest in the property levied upon.
(c) Except as provided in subdivision (d) and unless the third person elects to file an undertaking in a larger amount, the amount of the undertaking shall be the lesser of the following amounts:
(1) Twice the market value of the property sought to be released.
(2) Twice the amount of the creditor’s lien on the property sought to be released.
(d) If the creditor has given an undertaking in response to the third person’s claim regarding the property pursuant to Section 720.160 or 720.260, the third person’s undertaking shall be in the amount of the creditor’s undertaking.
(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)
(a) If the undertaking to release property is filed with the levying officer at the time the third-party claim is filed, the levying officer shall serve a copy of the undertaking on the creditor and on the debtor with the notice of the filing of the third-party claim served pursuant to Section 720.140 or 720.240.
(b) If the undertaking to release property is filed with the levying officer after the third-party claim is filed, not later than five days after the undertaking is filed, the levying officer shall serve a copy of the undertaking on the creditor and on the debtor with a notice that the property will be released unless, within the time allowed as specified in the notice, the creditor objects to the undertaking. Service shall be made personally or by mail.
(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)
The third person’s undertaking becomes effective when the property described therein is released pursuant to this chapter.
(Added by Stats. 1982, Ch. 1364, Sec. 2. Operative July 1, 1983, by Sec. 3 of Ch. 1364.)
The levying officer shall release the property described in the third person’s undertaking in the manner provided by Section 720.170 promptly after the expiration of the time allowed for objecting to the undertaking, unless the creditor has objected to the undertaking, and filed with the levying officer a copy of the notice of motion as required by Section 720.760, prior to the expiration of that time.
(Amended by Stats. 1985, Ch. 41, Sec. 12.)