U.S.A. v. Taylor

Filing 16

ORDER GRANTING 13 Plaintiff's Cross-Motion for Order for Installment Payment signed by District Judge Anthony W. Ishii on 1/8/2015. Proposed Order due within fourteen (14) days. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff,

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vs.

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1:14-MC-0055 AWI SKO
(1:03-CR-5161 AWI)
ORDER ON DEFENDANT’S MOTION
FOR RELEASE OF FUNDS AND
PLAINTIFF’S CROSS-MOTION FOR
INSTALLMENT PAYMENT ORDER

TIMOTHY BRUCE TAYLOR,
Doc. #’s

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Defendant.

13 (14mc0055)
108, 110 & 116 (03cr5161)

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Defendant Timothy Bruce Taylor (“Defendant”) was convicted by plea of guilty on May

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11, 2004, to six counts of mail fraud and two counts of attempted income tax evasion. He was
sentenced on August 30, 2004, to a term of 84 months imprisonment and ordered to pay
restitution in the amount of $337,682.00. On August 20, 2014, plaintiff United States of
America (“Plaintiff”) filed an action for writ of garnishment against an account maintained by
Defendant in Fresno County Federal Credit Union (“FCFCU”) (Case Number 14mc0055). On
October 2, 2014, the court received a communication that appears to be in the form of a brief
memorandum or letter from Defendant requesting the court’s intervention in the seizure of his
bank account and his consequent inability to make payments to secure housing. The brief
communication from Defendant requests that the court order the U.S. Attorney to release funds
from Defendant’s bank account and that the court order the U.S. Attorney to meet with

A

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Defendant to negotiate a payment schedule for court-ordered restitution. On October 9, 2014,
the court issued an order setting further briefing schedule for both parties. On October 23, 2014,
Plaintiff filed an opposition to Defendant’s motion for release of funds and cross-filed a Motion
for Installment Payment Order (hereinafter, the “cross-Motion”). The matter was taken under
submission as of December 4, 2014. On December 10, 2014, Defendant filed what was
construed to be a reply to Plaintiff’s opposition to the motion to release of funds and an
opposition to Plaintiff’s cross-Motion.
I. Defendant’s Motion to Release Funds
At the time Defendant filed the document requesting release of funds, the court deemed

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the filing to be a motion for purposes of ordering further briefing; thus, the court will refer to
Document Number 108 in Case 03cr5161 as “Defendant’s Motion.” Defendant’s Motion
consists of two short paragraphs explaining that he lives on $1,500 per month and that he relies
on the funds contained in the garnished account for living expenses. Plaintiff’s Motion does not
mention the garnishment action itself, nor does it reference the procedures or legal standards of
the Federal Debt Collection Procedure Act, 28 U.S.C. §§ 3001, et seq. (hereinafter “Act”).1
Plaintiff opposes Defendants’ on two grounds based on requirements set forth in the Act; first,
Plaintiffs contend that Defendant’s Motion is untimely and, second, Plaintiff contends Defendant
has failed to state any legally cognizable basis to challenge the garnishment proceeding.
With regard to time limits, the Act provides that the owner of the account being

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garnished has the opportunity to file objection and request hearing within 20 days of service of
the writ of garnishment, 28 U.S.C. § 3202(d) and has a second opportunity to oppose and request
a hearing regarding the garnishee’s (Fresno County Federal Credit Union’s) answer to the writ
within 20 days of the date of service of the answer. 28 U.S.C.§ 3205(c)(5). Plaintiff’s
application for writ of garnishment was granted on August 22, 2014, and the “Writ” and

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Plaintiff’s briefings refer to the Federal Debt Collection Procedures as the “FDCPA.” This is
confusing as the same acronym is used commonly to denote the federal Fair Debt Collection Practices
Act. The court uses the term “ACT” to avoid this confusion.

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accompanying instructions were served on Defendant on August 28, 2014. FCFCU’s answer to
the Writ was served on Defendant on September 25, 2014. Correspondingly, any opposition or
request for hearing by Defendant should have been filed and served not later than September 15,
2014, with regard to the Writ of garnishment, or not later than October 16, with regard to the
garnishee’s answer to the writ.
As noted above, Defendant’s first communication to the court was filed on October 2,

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2014, was filed in the criminal proceeding and was filed approximately two weeks after the
deadline for opposition to, or request for hearing on, the issuance of the Writ. Defendant’s
October 2, 2014, filing made no mention of the FCFCU’s answer to the Writ that had been filed
and served on September 25, 2014, and was construed simply as a motion for release of funds.
The document that has been construed as Defendant’s “Reply,” Document Number 115, was
filed on December 10, 2014, and was consequently filed well beyond the deadline for either
opposition to the Writ or opposition to the garnishee’s Answer.2 The court finds that, to the
extent Defendant filed any documents intended to oppose either the issuance of the Writ of
garnishment or Fresno Federal Credit Union’s answer thereto, those documents were not timely
filed with regard to either the issuance of the Writ or the Answer and, in any event, failed to
address the Answer at all.
With regard to legal bases to challenge the garnishment proceeding, the only arguments

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put forth by Defendant is that he would be placed in economic difficulty if he were to be denied
access to the funds held in the garnished account and that Plaintiff had failed to respond
constructively to his repeated requests for a payment schedule. As Plaintiff notes, the bases
upon which a person subject to garnishment under the Act may object are limited to the
arguments that the proceeding was in some way procedurally deficient or that the funds or

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The court notes that that Defendant’s document of December 10, 2014, reflects that Defendant made
a trip to court for a hearing that had been scheduled to occur on that date but had been taken off calendar
when the court took the matter under submission on December 5, 2014. Since the Document that was
filed by Defendant on October 2, 2014, did not request a hearing and did not reference the garnishee’s
answer to the Writ -- the only issue for which a hearing could have been requested -- the court finds there
was no prejudice to Defendant as a result of the fact no hearing was held.

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account being garnished are exempt under the Act. See 28 U.S.C. § 3202(d) (setting forth
grounds for objection). Plaintiff has correctly observed that Defendant has failed to raise any
basis for objection recognized by subsection 3202(d). Plaintiff also correctly notes that neither
economic distress nor the failure of the government to institute a payment schedule that is
convenient for Defendant are cognizable grounds for relief from a garnishment action. See Doc.
# 110 at 4:11-14 (citing United States v. Mahar, 42 F.3d 1389 at *1 (6th Cir. 1994) and United
States v. Lawrence, 538 F.Supp.2d 1188, 1194 (D.S.D. 2008) in support of the propositions set
forth).
To the extent that the court could otherwise look to principles of equity to excuse

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Defendant’s failure to timely file objections or to adequately state any legal basis for relief,
Defendant’s failure to address Plaintiff’s allegations that information provided by Defendant
regarding his financial status was inaccurate and misleading counsels against the application of
any equitable principles in Defendant’s favor. Plaintiff’s allegations of Defendant’s failure to be
candid in providing personal financial information are the basis for Plaintiff’s cross-motion to
establish a payment schedule. It is to that motion that the court now turns.
II. Plaintiff’s Cross-Motion for Installment Payment Order
Plaintiffs seek an installment payment order pursuant to 28 U.S.C. § 3204. Pursuant to

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that subsection, the court’s authority to impose an installment payment order is triggered when
either (1) a judgment debtor “is receiving or will receive substantial nonexempt disposable
earnings from self employment that are not subject to garnishment; or (2) [the judgment debtor]
is diverting or concealing substantial earnings from any source, or property received in lieu of
earnings.” 28 U.S.C. §§ 3204(a) (1 and 2). Plaintiffs contend the second condition applies
inasmuch as Defendant has been found to have rental income and income from Veterans
Administration benefits and funds in bank accounts that were not disclosed in Defendant’s first
financial statement, which appears to be dated February 18, 2014. As Plaintiff shows through
attached financial documents, the disclosure document of February 18 shows Defendant listed
his sole income as $950 per month from “all other income.” However, a car loan application

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dated July 19, 2013, lists a monthly income of $4,670.00. A later financial statement completed
for the U.S. Attorney’s office on or about September 5, 2014, indicates a total monthly income
of $1,540.00 per month and lists additional savings account and property assets. Plaintiff alleges
it was later discovered that Plaintiff has Veterans Administration income of $2,858 per month
that were never disclosed by Defendant.
The court notes that Defendant has filed no opposition to Plaintiff’s listing of income or

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assets that were previously concealed, nor does Defendant claim any exemption with regard to
the additional listed income or assets. Plaintiff notes that there is some question as to whether
Defendant’s VA benefits would be subject to exemption depending on how the payments are
made. Plaintiff has determined, and Defendant has offered no dispute, that Defendant’s financial
condition as determined by Plaintiff justifies an installment payment order in the amount of
between $750 and $1,000 per month. The court has no information before it to indicate that
Plaintiff’s contentions are in any way inaccurate or that Plaintiffs cross-motion should not be
granted. Plaintiff’s cross-motion for order of installment payment will therefore be granted.

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THEREFORE, for the reasons set forth above, it is hereby ORDERED that Defendant’s

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motions to release funds, Documents Numbered 108 and 116 in Case Number 03cr5161, are
each DENIED. Plaintiff’s cross-motion for Order for Installment Payment, Document Number
13 in Case Number 14mc0055, is hereby GRANTED. If an order of the court in a particular
form is required to accomplish the establishment of the requested installment payments, Plaintiff
shall file and serve a proposed order in the necessary form not later than fourteen (14) days from
the date of service of this order.
IT IS SO ORDERED.
Dated: January 8, 2015
SENIOR DISTRICT JUDGE

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