SECTIONS 704.710-704.850 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 704.710-704.850

704.710. As used in this article:
(a) "Dwelling" means a place where a person resides and may
include but is not limited to the following:
(1) A house together with the outbuildings and the land upon which
they are situated.
(2) A mobilehome together with the outbuildings and the land upon
which they are situated.
(3) A boat or other waterborne vessel.
(4) A condominium, as defined in Section 783 of the Civil Code.
(5) A planned development, as defined in Section 11003 of the
Business and Professions Code.
(6) A stock cooperative, as defined in Section 11003.2 of the
Business and Professions Code.
(7) A community apartment project, as defined in Section 11004 of
the Business and Professions Code.
(b) "Family unit" means any of the following:
(1) The judgment debtor and the judgment debtor's spouse if the
spouses reside together in the homestead.
(2) The judgment debtor and at least one of the following persons
who the judgment debtor cares for or maintains in the homestead:
(A) The minor child or minor grandchild of the judgment debtor or
the judgment debtor's spouse or the minor child or grandchild of a
deceased spouse or former spouse.
(B) The minor brother or sister of the judgment debtor or judgment
debtor's spouse or the minor child of a deceased brother or sister
of either spouse.
(C) The father, mother, grandfather, or grandmother of the
judgment debtor or the judgment debtor's spouse or the father,
mother, grandfather, or grandmother of a deceased spouse.
(D) An unmarried relative described in this paragraph who has
attained the age of majority and is unable to take care of or support
himself or herself.
(3) The judgment debtor's spouse and at least one of the persons
listed in paragraph (2) who the judgment debtor's spouse cares for or
maintains in the homestead.
(c) "Homestead" means the principal dwelling (1) in which the
judgment debtor or the judgment debtor's spouse resided on the date
the judgment creditor's lien attached to the dwelling, and (2) in
which the judgment debtor or the judgment debtor's spouse resided
continuously thereafter until the date of the court determination
that the dwelling is a homestead. Where exempt proceeds from the sale
or damage or destruction of a homestead are used toward the
acquisition of a dwelling within the six-month period provided by
Section 704.720, "homestead" also means the dwelling so acquired if
it is the principal dwelling in which the judgment debtor or the
judgment debtor's spouse resided continuously from the date of
acquisition until the date of the court determination that the
dwelling is a homestead, whether or not an abstract or certified copy
of a judgment was recorded to create a judgment lien before the
dwelling was acquired.
(d) "Spouse" does not include a married person following entry of
a judgment decreeing legal separation of the parties, unless such
married persons reside together in the same dwelling.

704.720. (a) A homestead is exempt from sale under this division to
the extent provided in Section 704.800.
(b) If a homestead is sold under this division or is damaged or
destroyed or is acquired for public use, the proceeds of sale or of
insurance or other indemnification for damage or destruction of the
homestead or the proceeds received as compensation for a homestead
acquired for public use are exempt in the amount of the homestead
exemption provided in Section 704.730. The proceeds are exempt for a
period of six months after the time the proceeds are actually
received by the judgment debtor, except that, if a homestead
exemption is applied to other property of the judgment debtor or the
judgment debtor's spouse during that period, the proceeds thereafter
are not exempt.
(c) If the judgment debtor and spouse of the judgment debtor
reside in separate homesteads, only the homestead of one of the
spouses is exempt and only the proceeds of the exempt homestead are
exempt.
(d) If a judgment debtor is not currently residing in the
homestead, but his or her separated or former spouse continues to
reside in or exercise control over possession of the homestead, that
judgment debtor continues to be entitled to an exemption under this
article until entry of judgment or other legally enforceable
agreement dividing the community property between the judgment debtor
and the separated or former spouse, or until a later time period as
specified by court order. Nothing in this subdivision shall entitle
the judgment debtor to more than one exempt homestead.
Notwithstanding subdivision (d) of Section 704.710, for purposes of
this article, "spouse" may include a separated or former spouse
consistent with this subdivision.

704.730. (a) The amount of the homestead exemption is one of the
following:
(1) Seventy-five thousand dollars ($75,000) unless the judgment
debtor or spouse of the judgment debtor who resides in the homestead
is a person described in paragraph (2) or (3).
(2) One hundred thousand dollars ($100,000) if the judgment debtor
or spouse of the judgment debtor who resides in the homestead is at
the time of the attempted sale of the homestead a member of a family
unit, and there is at least one member of the family unit who owns no
interest in the homestead or whose only interest in the homestead is
a community property interest with the judgment debtor.
(3) One hundred seventy-five thousand dollars ($175,000) if the
judgment debtor or spouse of the judgment debtor who resides in the
homestead is at the time of the attempted sale of the homestead any
one of the following:
(A) A person 65 years of age or older.
(B) A person physically or mentally disabled who as a result of
that disability is unable to engage in substantial gainful
employment. There is a rebuttable presumption affecting the burden of
proof that a person receiving disability insurance benefit payments
under Title II or supplemental security income payments under Title
XVI of the federal Social Security Act satisfies the requirements of
this paragraph as to his or her inability to engage in substantial
gainful employment.
(C) A person 55 years of age or older with a gross annual income
of not more than fifteen thousand dollars ($15,000) or, if the
judgment debtor is married, a gross annual income, including the
gross annual income of the judgment debtor's spouse, of not more than
twenty thousand dollars ($20,000) and the sale is an involuntary
sale.
(b) Notwithstanding any other provision of this section, the
combined homestead exemptions of spouses on the same judgment shall
not exceed the amount specified in paragraph (2) or (3), whichever is
applicable, of subdivision (a), regardless of whether the spouses
are jointly obligated on the judgment and regardless of whether the
homestead consists of community or separate property or both.
Notwithstanding any other provision of this article, if both spouses
are entitled to a homestead exemption, the exemption of proceeds of
the homestead shall be apportioned between the spouses on the basis
of their proportionate interests in the homestead.

704.740. (a) Except as provided in subdivision (b), the interest of
a natural person in a dwelling may not be sold under this division
to enforce a money judgment except pursuant to a court order for sale
obtained under this article and the dwelling exemption shall be
determined under this article.
(b) If the dwelling is personal property or is real property in
which the judgment debtor has a leasehold estate with an unexpired
term of less than two years at the time of levy:
(1) A court order for sale is not required and the procedures
provided in this article relating to the court order for sale do not
apply.
(2) An exemption claim shall be made and determined as provided in
Article 2 (commencing with Section 703.510).

704.750. (a) Promptly after a dwelling is levied upon (other than a
dwelling described in subdivision (b) of Section 704.740), the
levying officer shall serve notice on the judgment creditor that the
levy has been made and that the property will be released unless the
judgment creditor complies with the requirements of this section.
Service shall be made personally or by mail. Within 20 days after
service of the notice, the judgment creditor shall apply to the court
for an order for sale of the dwelling and shall file a copy of the
application with the levying officer. If the judgment creditor does
not file the copy of the application for an order for sale of the
dwelling within the allowed time, the levying officer shall release
the dwelling.
(b) If the dwelling is located in a county other than the county
where the judgment was entered:
(1) The judgment creditor shall apply to the superior court of the
county where the dwelling is located.
(2) The judgment creditor shall file with the application an
abstract of judgment in the form prescribed by Section 674 or, in the
case of a judgment described in Section 697.320, a certified copy of
the judgment.
(3) The judgment creditor shall pay the filing fee for a motion as
provided in subdivision (a) of Section 70617 of the Government Code.

704.760. The judgment creditor's application shall be made under
oath, shall describe the dwelling, and shall contain all of the
following:
(a) A statement whether or not the records of the county tax
assessor indicate that there is a current homeowner's exemption or
disabled veteran's exemption for the dwelling and the person or
persons who claimed any such exemption.
(b) A statement, which may be based on information and belief,
whether the dwelling is a homestead and the amount of the homestead
exemption, if any, and a statement whether or not the records of the
county recorder indicate that a homestead declaration under Article 5
(commencing with Section 704.910) that describes the dwelling has
been recorded by the judgment debtor or the spouse of the judgment
debtor.
(c) A statement of the amount of any liens or encumbrances on the
dwelling, the name of each person having a lien or encumbrance on the
dwelling, and the address of such person used by the county recorder
for the return of the instrument creating such person's lien or
encumbrance after recording.

704.770. (a) Upon the filing of the application by the judgment
creditor, the court shall set a time and place for hearing and order
the judgment debtor to show cause why an order for sale should not be
made in accordance with the application. The time set for hearing
shall be not later than 45 days after the application is filed or
such later time as the court orders upon a showing of good cause.
(b) Not later than 30 days before the time set for hearing, the
judgment creditor shall do both of the following:
(1) Serve on the judgment debtor a copy of the order to show
cause, a copy of the application of the judgment creditor, and a copy
of the notice of the hearing in the form prescribed by the Judicial
Council. Service shall be made personally or by mail.
(2) Personally serve a copy of each document listed in paragraph
(1) on an occupant of the dwelling or, if there is no occupant
present at the time service is attempted, post a copy of each
document in a conspicuous place at the dwelling.

704.780. (a) The burden of proof at the hearing is determined in
the following manner:
(1) If the records of the county tax assessor indicate that there
is a current homeowner's exemption or disabled veteran's exemption
for the dwelling claimed by the judgment debtor or the judgment
debtor's spouse, the judgment creditor has the burden of proof that
the dwelling is not a homestead. If the records of the county tax
assessor indicate that there is not a current homeowner's exemption
or disabled veteran's exemption for the dwelling claimed by the
judgment debtor or the judgment debtor's spouse, the burden of proof
that the dwelling is a homestead is on the person who claims that the
dwelling is a homestead.
(2) If the application states the amount of the homestead
exemption, the person claiming the homestead exemption has the burden
of proof that the amount of the exemption is other than the amount
stated in the application.
(b) The court shall determine whether the dwelling is exempt. If
the court determines that the dwelling is exempt, the court shall
determine the amount of the homestead exemption and the fair market
value of the dwelling. The court shall make an order for sale of the
dwelling subject to the homestead exemption, unless the court
determines that the sale of the dwelling would not be likely to
produce a bid sufficient to satisfy any part of the amount due on the
judgment pursuant to Section 704.800. The order for sale of the
dwelling subject to the homestead exemption shall specify the amount
of the proceeds of the sale that is to be distributed to each person
having a lien or encumbrance on the dwelling and shall include the
name and address of each such person. Subject to the provisions of
this article, the sale is governed by Article 6 (commencing with
Section 701.510) of Chapter 3. If the court determines that the
dwelling is not exempt, the court shall make an order for sale of the
property in the manner provided in Article 6 (commencing with
Section 701.510) of Chapter 3.
(c) The court clerk shall transmit a certified copy of the court
order (1) to the levying officer and (2) if the court making the
order is not the court in which the judgment was entered, to the
clerk of the court in which the judgment was entered.
(d) The court may appoint a qualified appraiser to assist the
court in determining the fair market value of the dwelling. If the
court appoints an appraiser, the court shall fix the compensation of
the appraiser in an amount determined by the court to be reasonable,
not to exceed similar fees for similar services in the community
where the dwelling is located.

704.790. (a) This section applies in any case where the court makes
an order for sale of the dwelling upon a hearing at which none of
the following appeared:
(1) The judgment debtor.
(2) The judgment debtor's spouse.
(3) The attorney for the judgment debtor.
(4) The attorney for the judgment debtor's spouse.
(b) Not later than 10 days after the date of the order for sale,
the judgment creditor shall serve a copy of the order and a notice of
the order in the form prescribed by the Judicial Council:
(1) Personally or by mail on the judgment debtor and the judgment
debtor's spouse.
(2) Personally on an occupant of the dwelling or, if there is no
occupant present at the time service is attempted, post a copy of the
order and notice in a conspicuous place at the dwelling.
(c) Proof of service and of any posting shall be filed with the
court and with the levying officer. If the judgment creditor fails to
comply with this subdivision and with subdivision (b) in any case
where this section applies, the dwelling may not be sold under the
order for sale.
(d) If, within 10 days after service of notice of the order, the
judgment debtor or the judgment debtor's spouse files with the
levying officer a declaration that the absence of the judgment debtor
and the judgment debtor's spouse or the attorney for the judgment
debtor or the judgment debtor's spouse from the hearing was due to
mistake, inadvertence, surprise, or excusable neglect and that the
judgment debtor or spouse of the judgment debtor wishes to assert the
homestead exemption, the levying officer shall transmit the
declaration forthwith to the court. Upon receipt of the declaration,
the court shall set a time and place for hearing to determine whether
the determinations of the court should be modified. The time set for
hearing shall be not later than 20 days after receipt of the
declaration. The court clerk shall cause notice of the hearing
promptly to be given to the parties.

704.800. (a) If no bid is received at a sale of a homestead
pursuant to a court order for sale that exceeds the amount of the
homestead exemption plus any additional amount necessary to satisfy
all liens and encumbrances on the property, including but not limited
to any attachment or judgment lien, the homestead shall not be sold
and shall be released and is not thereafter subject to a court order
for sale upon subsequent application by the same judgment creditor
for a period of one year.
(b) If no bid is received at the sale of a homestead pursuant to a
court order for sale that is 90 percent or more of the fair market
value determined pursuant to Section 704.780, the homestead shall not
be sold unless the court, upon motion of the judgment creditor, does
one of the following:
(1) Grants permission to accept the highest bid that exceeds the
amount of the minimum bid required by subdivision (a).
(2) Makes a new order for sale of the homestead.

704.810. Levy on a homestead that is subject to a lien or
encumbrance is not by itself grounds for acceleration of the
obligation secured by the lien or encumbrance, notwithstanding any
provision of the obligation, lien, or encumbrance and if the
homestead is sold pursuant to court order under this article the
amount payable to satisfy a lien or encumbrance shall not include any
penalty for prepayment.

704.820. If the dwelling is owned by the judgment debtor as a joint
tenant or tenant in common or if the interest of the judgment debtor
in the dwelling is a leasehold or other interest less than a fee
interest:
(a) At an execution sale of a dwelling, the interest of the
judgment debtor in the dwelling and not the dwelling shall be sold.
If there is more than one judgment debtor of the judgment creditor,
the interests of the judgment debtors in the dwelling shall be sold
together and each of the judgment debtors entitled to a homestead
exemption is entitled to apply his or her exemption to his or her own
interest.
(b) For the purposes of this section, all references in this
article to the "dwelling" or "homestead" are deemed to be references
to the interest of the judgment debtor in the dwelling or homestead.

704.830. The provisions of Sections 703.590 and 703.600 apply to
proceedings under this article.

704.840. (a) Except as provided in subdivision (b), the judgment
creditor is entitled to recover reasonable costs incurred in a
proceeding under this article.
(b) If no bid is received at a sale of a homestead pursuant to a
court order for sale that exceeds the amount of the homestead
exemption plus any additional amount necessary to satisfy all liens
and encumbrances on the property, the judgment creditor is not
entitled to recover costs incurred in a proceeding under this article
or costs of sale.

704.850. (a) The levying officer shall distribute the proceeds of
sale of a homestead in the following order:
(1) To the discharge of all liens and encumbrances, if any, on the
property.
(2) To the judgment debtor in the amount of any applicable
exemption of proceeds pursuant to Section 704.720.
(3) To the levying officer for the reimbursement of the levying
officer's costs for which an advance has not been made.
(4) To the judgment creditor to satisfy the following:
(A) First, costs and interest accruing after issuance of the writ
pursuant to which the sale is conducted.
(B) Second, the amount due on the judgment with costs and
interest, as entered on the writ.
(5) To the judgment debtor in the amount remaining.
(b) Sections 701.820 and 701.830 apply to distribution of proceeds
under this section.