California Commercial Code. California

Чтение книги онлайн.

СКАЧАТЬ or both of them may be present at the hearing.

      (f) The notice shall contain the following statement: "You may seek the advice of an attorney as to any matter connected with the plaintiff's application. The attorney should be consulted promptly so that the attorney may assist you before the time set for hearing."

      484.350. (a) If the defendant claims that the property described in the plaintiff's application, or a portion of such property, is exempt from attachment, the defendant may claim the exemption as provided in this section. If the defendant fails to make a claim with respect to personal property, or makes a claim with respect to real or personal property but fails to prove that the property is exempt, the defendant may not later claim the exemption except as provided in Section 482.100.

      (b) The claim of exemption shall:

      (1) Describe the property claimed to be exempt.

      (2) Specify the statute section supporting the claim.

      (c) The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised.

      (d) The claim of exemption, together with any supporting affidavit and points and authorities, shall be filed and served on the plaintiff not less than five court days before the date set for the hearing.

      484.360. (a) If the defendant files and serves a claim of exemption and the plaintiff desires to oppose the claim, he shall file and serve on the defendant, not less than two days before the date set for the hearing, a notice of opposition to the claim of exemption, accompanied by an affidavit supporting any factual issues raised and points and authorities supporting any legal issues raised.

      (b) If the defendant files and serves a claim of exemption and supporting affidavit as provided in Section 484.350 and the plaintiff does not file and serve a notice of opposition as provided in this section, no writ of attachment shall be issued as to the property claimed to be exempt. If all of the property described in the plaintiff's application is claimed to be exempt and the plaintiff does not file and serve a notice of opposition as provided in this section, no hearing shall be held and no writ of attachment shall be issued.

      (c) If the plaintiff files and serves a notice of opposition to the claim as provided in this section, the defendant has the burden of proving that the property is exempt from attachment.

      484.370. The hearing shall be conducted in the manner prescribed in Section 484.090 and the court shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220, if it finds both of the following:

      (a) A right to attach order has been issued in the action pursuant to Article 1 (commencing with Section 484.010) or the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order.

      (b) The defendant has failed to prove that the property sought to be attached, or the portion thereof to be described in the writ, is exempt from attachment.

      Article 3. Ex Parte Procedure for Obtaining Additional Writs

      484.510. (a) At any time after a right to attach order has been issued under Article 1 (commencing with Section 484.010) or after the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order, the plaintiff may apply for a writ of attachment under this article by filing an application which meets the requirements of Section 484.320 with the court in which the action is brought.

      (b) The application shall be accompanied by an affidavit showing that the property sought to be attached is not exempt from attachment. Such affidavit may be based on the affiant's information and belief.

      484.520. The court shall examine the application and supporting affidavit and shall order a writ of attachment to be issued upon the filing of an undertaking as provided by Sections 489.210 and 489.220, if it finds both of the following:

      (a) A right to attach order has been issued in the action pursuant to Article 1 (commencing with Section 484.010) or the court has found pursuant to Section 485.240 that the plaintiff is entitled to a right to attach order.

      (b) The affidavit accompanying the application shows that the property sought to be attached, or the portion thereof to be described in the writ, is not exempt from attachment.

      484.530. (a) The defendant may claim an exemption as to real or personal property levied upon pursuant to a writ issued under this article by following the procedure set forth in Article 2 (commencing with Section 703.510) of Chapter 4 of Division 2 of Title 9, except that the defendant shall claim the exemption as to personal property not later than 30 days after the levying officer serves the defendant with the notice of attachment describing such property. For this purpose, references in Article 2 (commencing with Section 703.510) of Chapter 4 of Division 2 of Title 9 to the "judgment debtor" shall be deemed references to the defendant, and references to the "judgment creditor" shall be deemed references to the plaintiff.

      (b) The defendant may claim the exemption provided by subdivision (b) of Section 487.020 within the time provided by subdivision (a) of this section either (1) by following the procedure set forth in Article 2 (commencing with Section 703. 510) of Chapter 4 of Division 2 of Title 9 or (2) by following the procedure set forth in subdivision (c) of Section 482.100 except that the requirement of showing changed circumstances under subdivision (a) of Section 482.100 does not apply.

      (c) Notwithstanding subdivisions (a) and (b), a claim of exemption shall be denied if the claim has been denied earlier in the action and there is no change in circumstances affecting the claim.

      CHAPTER 5

      EX PARTE HEARING PROCEDURE FOR OBTAINING WRIT OF ATTACHMENT

      Article 1. Great or Irreparable Injury Requirement

      485.010. (a) Except as otherwise provided by statute, no right to attach order or writ of attachment may be issued pursuant to this chapter unless it appears from facts shown by affidavit that great or irreparable injury would result to the plaintiff if issuance of the order were delayed until the matter could be heard on notice.

      (b) The requirement of subdivision (a) is satisfied if any of the following are shown:

      (1) Under the circumstances of the case, it may be inferred that there is a danger that the property sought to be attached would be concealed, substantially impaired in value, or otherwise made unavailable to levy if issuance of the order were delayed until the matter could be heard on notice.

      (2) Under the circumstances of the case, it may be inferred that the defendant has failed to pay the debt underlying the requested attachment and the defendant is insolvent in the sense that the defendant is generally not paying his or her debts as those debts become due, unless the debts are subject to a bona fide dispute. Plaintiff's affidavit filed in support of the ex parte attachment shall state, in addition to the requirements of Section 485.530, the known undisputed debts of the defendant, that the debts are not subject to bona fide dispute, and the basis for plaintiff's determination that the defendant's debts are undisputed.

      (3) A bulk sales notice has been recorded and published pursuant to Division 6 (commencing with Section 6101) of the Commercial Code with respect to a bulk transfer by the defendant.

      (4) An escrow has been opened pursuant to the provisions of Section 24074 of the Business and Professions Code with respect to the sale by the defendant of a liquor license.

      (5) СКАЧАТЬ