The Johns Hopkins Hospital v. Allyson Post

Filing 920090407

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1161

THE JOHNS HOPKINS HOSPITAL, Plaintiff - Appellee, v. ALLYSON POST, Defendant ­ Appellant, and CHARLES SCHWAB AND COMPANY, Garnishee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:99-cv-02461-MJG)

Argued:

January 29, 2009

Decided:

April 7, 2009

Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Heriberto Medrano, LAW OFFICE OF HERIBERTO MEDRANO, Harlingen, Texas, for Appellant. Gary Steven Posner, WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Osiris A. Gonzalez, LAW OFFICE OF HERIBERTO MEDRANO, Harlingen, Texas, for Appellant. Susan Jaffe Roberts,

WHITEFORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: From June 1997 to February 1998, Appellant Allyson Post, a Texas resident, was a patient at Johns Hopkins Hospital in

Baltimore and incurred charges of $322,593.40.

Post's insurance

did not fully cover these charges, and Post failed to pay the remaining balance of $151,763.88. Hopkins brought a collection

action against Post in the United States District Court for the District of Maryland. The district court entered a judgment in

favor of Hopkins for $166,180.49, which reflected the unpaid balance and prejudgment interest. After transferred her release to from a the hospital, of Post created and the

assets

number

entities,

including

Allyson A. Post Family Limited Partnership, the Allyson A. Post Living Trust and the Allyson A. Post Management Trust.

Attempting to locate and preserve assets belonging to Post that might satisfy its judgment, Hopkins brought a fraudulent

conveyance action against Post in Texas state court and obtained an order enjoining court's Post from "removing and non-exempt property" any

beyond

the

jurisdiction

"from

establishing

trusts and/or entities for use in the transfer . . . of any nonexempt property and assets of Allyson Post." J.A. 149.

Hopkins deposed Post as part of the Texas proceeding and learned lawsuit that Post's income and derived from a personal injury

settlement

social 3

security

disability

benefits.

These funds, as well as assets derived from these funds, were transferred to Post's trusts, which she controlled, and were ultimately placed in an account managed by Charles Schwab &

Company in the name of the Allyson A. Post Trust (the "Schwab Account"). In August 2006, Hopkins decided to seek partial

satisfaction of its federal judgment against the Schwab Account, which had a net value of $150,857.02 at the time. 69(a) of the Federal Rules of Civil Procedure, [a] money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution-­and in proceedings supplementary to and in aid of judgment or execution-­must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies. Fed. R. Civ. P. 69(a)(1) (emphasis added). The parties agree Under Rule

that no federal statute applies in this instance and that the Maryland Garnishment procedure set forth in Maryland Rule 2-645 governs. A garnishment proceeding pursuant to Maryland Rule 2-645 provides a means for a judgment creditor to enforce its judgment by attaching property owned by the judgment debtor but held by a third party, i.e., the garnishee. See Medical Mut. Liab. Ins. Under

Soc'y of Md. v. Davis, 883 A.2d 158, 162 (Md. 2005).

Maryland law, "[t]he judgment itself is conclusive proof of the judgment debtor's obligation to the judgment creditor. The sole

4

purpose of the garnishment proceeding . . . is to determine whether the garnishee has any funds . . . which belong to the judgment debtor." (Md. 1980). The garnishment process is commenced when the judgment Fico, Inc. v. Ghingher, 411 A.2d 430, 436

creditor files a request for a writ of garnishment, which must include the caption of the action, the amount of the judgment, the name of the judgment debtor and the name of the garnishee, as part of the same action in which the judgment was obtained. See Md. Rule 2-645(b). The clerk of court then issues the writ

to the garnishee, directing that the garnishee hold any property belonging to the judgment debtor "subject to further

proceedings."

Md. Rule 2-645(c)(2).

The garnishee must file an

answer admitting or denying that it holds the debtor's property or asserting a defense to the garnishment. 645(e). Maryland's procedure requires that the judgment debtor be notified of the writ, of his right to contest the garnishment, and of the fact that exemptions are available for certain types of property. See Md. Rule 2-645(c)(4),(5). Pursuant to See Md. Rule 2-

Maryland Rule 2-643(d), the judgment debtor may seek release of exempt property by filing a motion. See Md. Rule 2-643(c)(2)

("Upon motion of the judgment debtor, the court may release some

5

or all of the property from a levy if it finds that . . . the property is exempt from levy.") The district court issued a writ of garnishment to Charles Schwab attaching Post's trust account and any assets it held for Post. Post moved for release of the Schwab Account from levy,

claiming that the assets contained in the account came from a personal injury settlement Post received in 1986 and were

therefore exempt from judgment under Maryland law. Maryland law provides a list of items that are exempt from execution on a judgment, including [m]oney payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred. Md. Code. Cts. & Jud. Proc. § 11-504(b)(2). Damages for pain

and suffering and loss of future wages are exempt under § 11504(b)(2), but damages for lost past wages, injuries to

property, and punitive damages are not exempt.

See Calafiore v.

Werner Enters., Inc., 418 F. Supp. 2d 795, 799 (D. Md. 2006). According to Post's deposition testimony, the Schwab

Account contains funds from a 1986 personal injury settlement that was structured as follows: an initial payment of $150,000;

lifetime monthly payments of $2,500; and $250,000 paid in five 6

lump-sum installments scheduled for 1986, 1991, 1996, 2001 and 2006. Under the terms of the settlement agreement, Post agreed

to release all past, present and future claims related to the personal injury claim. The agreement did not specifically

describe the losses included in the "past, present and future claims" released by Post. The district court, however, found

that "some portion of the payments in the Agreement could be considered exempt as compensation for pain and suffering and loss of future earnings," while "some portion of the payments under the Agreement J.A. that the could 188. fairly be allocated the to non-exempt court

purposes." determined

Additionally, from Social

district

proceeds

Security

disability

payments contained in the Schwab Account were not exempt under § 11-504(b)(2) because the judgment resulted from "necessities contracted for after the disability [was] incurred." Thus, the court concluded that the account J.A. 189. contained

commingled exempt and non-exempt assets and that there was no non-speculative basis upon which to apportion the funds into exempt and non-exempt amounts. The district court reasoned that

the burden of proof was dispositive since neither party would be able to prove what portion of the account was exempt and what portion was not. Noting a lack of interpretive guidance from

Maryland appellate courts, the district court considered other states' exemption laws and concluded the general rule was that 7

the party seeking the exemption bears the burden of proof.

And,

because Post had no means of establishing the portion of the Schwab Account that was actually exempt, the district court held that Hopkins could levy on the entire account. On appeal, Post does not dispute that the Schwab Account contained both exempt and non-exempt assets, nor does she

contest the district court's conclusion that there is no basis upon which to apportion the funds in the account. Instead, Post

contends that the district court committed reversible error in concluding that the burden rests on the judgment debtor to prove that the funds are exempt from collection in satisfaction of a judgment under Maryland's garnishment procedure. Post believes

that in allocating the burden of proof as it did, the district court failed to discern and observe the essential purpose of Maryland's protection bankruptcy exemption from law. statute: to afford is many its debtors under greater federal Maryland

creditors Indeed,

than like

provided other

states,

decided "to opt out of [the] federal exemption scheme" and enact a generally broader exemption scheme of its own. See Wolff v. Post her

Gibson (In re Gibson), 300 B.R. 866, 869 (D. Md. 2003). reasons exemption construed available that by assigning her the the her burden district less of proving

under

§ 11-504(b)(2), law to give

court

actually than is the

Maryland in

protection which

federal

bankruptcy 8

proceedings,

place

burden of proof on a creditor objecting to a debtor's claimed exemption. See Fed. R. Bankr. P. 4003(c). Therefore, Post

concludes, the district court's interpretation of § 11-504(b)(2) was impermissibly narrow and failed to achieve the purpose of the Maryland exemption scheme. (Bankr. D. Md. 1999) See In re Hurst, 239 B.R. 89, 91 that to courts achieve should the construe intended

(noting liberally

Maryland's purpose). We focus

exemptions

cannot on

subscribe

to

Post's is

argument. misguided.

First,

Post's the

bankruptcy

procedure

Although

bankruptcy code looks to state law for exemptions for states that have "opted the out" of the federal rules scheme, see 11 U.S.C. federal

§ 522(b)(2),

procedural

that

apply

in

bankruptcy cases are of course federal.

Section § 11-504(b),

which is silent as to the burden of proof, tells us what may and may not be protected from judgment creditors; Bankruptcy Rule 4003(c) tells us who must prove that a given asset is exempt under state law. See Peoples' State Bank of Wells v. Stenzel Since this

(In re Stenzel), 301 F.3d 945, 947 (8th Cir. 2002).

is a garnishment proceeding under state law, Post's bankruptcy analogy is of limited use. We focus instead on the relevant procedural of a context -by

Maryland's garnishment.

procedures

for

enforcement

judgment

See Md. Rule 2-645. 9

As noted above, the procedure

is commenced by the judgment creditor's request for a writ of garnishment. judgment If the is garnishee to fails a to answer, judgment then for the the

creditor

entitled

default

asset to be applied in satisfaction of the judgment. Rule 2-645(f). and the

See Md.

If the garnishee answers and asserts a defense creditor disputes the defense by filing a

judgment

reply, then the case proceeds as would a typical civil action with the judgment creditor as plaintiff and the garnishee as defendant. action, the See Md. Rule 2-645(g). judgment creditor To recover in a garnishment present evidence legally

must

sufficient to prove a liability of the garnishee which existed when the writ was issued or when the case was tried. of liability of the garnishee to the judgment "The test is

creditor

whether the garnishee has any funds, property or credits which belong to the judgment debtor." Consolidated Constr. Servs.,

Inc. v. Simpson, 813 A.2d 260, 268 (Md. 2002) (emphasis and internal quotation marks omitted). No provision in the Maryland

Rules requires the judgment creditor to prove that the property held by the garnishee is non-exempt property. Significantly, the judgment debtor must take affirmative

steps to assert an exemption. debtors under Maryland's in a

The protection given to judgment scheme does As not operate by

exemption

automatically

garnishment

proceeding.

directed

Maryland Rule 2-645(i), the judgment debtor must make a motion 10

under Maryland Rule 2-643 before the court can release exempt property. election to Therefore, in this context, the judgment debtor's assert an exemption is in the nature of an

affirmative defense.

Section § 11-504(b) operates here as it

does in bankruptcy proceedings ­ it defines what property is exempt from levy. It does not purport to displace Maryland's

procedure for collecting judgments. Finally, we reject the suggestion that the district court's decision produced illogical results. It makes greater sense to

allocate the burden of proof to the judgment debtor in these circumstances, as the debtor is in a far better position than the judgment creditor to know about the existence and nature of his assets. This view is also consistent with the policy of

numerous other jurisdictions that require judgment debtors to prove an exemption See, in judgment LSF enforcement REO I, or LLC collection v. Emporia

proceedings.

e.g.,

Franchise

Rests., Inc. 152 P.3d 34, 41 (Kan. 2007) (explaining that under Kansas garnishment procedure "the judgment debtor bears the

burden of proof to show that any of the funds in question are exempt from garnishment"); Freeman v. Freeman, 464 N.Y.S.2d 676, 677 (N.Y. Sup. Ct. 1983) (explaining that "burden of proof is upon the judgment debtor to establish that the [debtor's]

account is exempt from levy"); Hancock v. Stockmens Bank & Trust Co., 739 P.2d 760, 761-62 (Wyo. 1987) (explaining that burden of 11

proof rests on the party claiming the exemption to establish the nature of the funds, requiring the judgment debtor to establish the exempt portion of funds in a joint account); Hoffman v. Weiland, 29 N.E.2d 33, 34 (Ohio Ct. App. 1940) (burden of proof regarding the existence or applicability of an exemption or

defense rests with the judgment debtor). Accordingly, we affirm the decision of the district court.

AFFIRMED

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