United States v. Shiveley

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/17/2015 ORDERING 11 The United States' application for a final order of garnishment is GRANTED; S&D Carwash Management, LLC shall garnish defendant Donald Mitch Shiveley's semi-mon thly non-exempt, earnings, wages and bonuses at the rate of 10% from each payment from the date it received the United States' writ of garnishment through 4/30/2016; All payments shall be made payable to the "Clerk of the Court" at the Office of the Clerk, USDC EDCA, Sacramento, CA. CASE CLOSED(Reader, L)

1 BENJAMIN B. WAGNER
United States Attorney
2 KURT A. DIDIER
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: [phone]
Facsimile: [phone]
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Attorneys for Plaintiff
6 United States
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES,

Case No.: 2:15-MC-00093-MCE-CKD

Plaintiff,

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STIPULATION RE GARNISHMENT;
AND ORDER THEREON
v.

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[No Hearing Requested]

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DONALD MITCH SHIVELEY,

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Defendant and Judgment Debtor,
______________________________________

Criminal Case No.: 2:06-CR-00273-MCE

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S&D CARWASH MANAGEMENT, LLC,
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Garnishee.
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Plaintiff United States and defendant and judgment debtor Donald Mitch Shiveley, (collectively

21 the “Parties”), hereby stipulate to a final resolution of the United States’ pending garnishment action
22 against Mr. Shiveley as follows:
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1.

On August 24, 2015, the United States sought, and the Clerk issued, a writ of

24 garnishment against Mr. Shiveley’s wages and other monetary compensation. MC ECF Nos. 4 and 5,
25 respectively. Mr. Shiveley works as a store manager and receives semi-monthly wages, earnings and
26 bonuses from the garnishee, S&D Carwash Management, LLC (S&D Carwash).
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2.

By its writ, the United States sought to enforce the restitution order issued by the Court in

28 Mr. Shiveley’s sentencing in Case No. 2:06-CR-00273-MCE and incorporated in the Amended
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Stipulation re Garnishment and Order

1 Judgment in a Criminal Case filed on January 31, 2007. CR ECF No. 35. Per the amended judgment,
2 Mr. Shiveley was ordered to pay $1,990,154.00 in restitution plus a $100 assessment. Id. Mr.
3 Shiveley’s restitution order remains unpaid.
3.

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The United States served the writ of garnishment on S&D Carwash on August 24, 2015.

5 MC ECF No. 4. S&D Carwash served its Acknowledgment and Answer (the Answer) to the United
6 States’ writ on September 15, 2015. MC ECF No. 8. The Answer states that Mr. Shiveley receives
7 semi-monthly wages in the gross amount of $1,733.33. After tax and other withholdings, Mr. Shiveley
8 receives semi-monthly net wages of $1,548.50. Id. These wages represent Mr. Shiveley’s disposable
9 earnings as a store manager.
4.

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S&D Carwash has been withholding 25% of Mr. Shiveley’s non-exempt, disposable

11 earnings, wages and bonuses since September 2015. The 25% withholding amount comports with the
12 Consumer Credit Protection Act’s 25% garnishment cap on a debtor’s non-exempt disposable earnings.
13 15 U.S.C. § 1673(a)(1).
5.

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The Parties notified the Court on October 23, 2015 that they had agreed to a settlement

15 of this garnishment action. MC ECF No. 10. To effectuate this agreement, the Parties agree that the
16 Court can and should enter an order as follows:
A.

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Garnishing 10% of Mr. Shiveley’s non-exempt, disposable (net) semi-monthly

18 S&D Carwash earnings, wages and bonuses from the date S&D Carwash began withholding these
19 payments plus any amounts payable to him until April 30, 2016;
B.

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Garnishing 25% of Mr. Shiveley’s non-exempt, disposable (net) semi-monthly

21 S&D Carwash earnings, wages and bonuses after May 1, 2016 and continuing thereafter until further
22 order of Court; and
C.

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Directing S&D Carwash to pay the garnishment amounts to the Clerk of the Court

24 as stated more specifically in the accompanying order.
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Stipulation re Garnishment and Order

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This is a continuing writ of garnishment against Mr. Shiveley’s S&D Carwash earnings,

2 wages and bonuses which shall remain in place until further Court order. The Court shall retain
3 jurisdiction to resolve matters through ancillary proceedings in the case, if necessary.
Respectfully submitted,

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5 FOR THE UNITED STATES:
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BENJAMIN B. WAGNER
United States Attorney

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8 Dated: November 13, 2015

By:

/s/ Kurt A. Didier
KURT A. DIDIER
Assistant United States Attorney

By:

/s/ Donald M. Shiveley
DONALD M. SHIVELEY, in pro per

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FOR THE DEFENDANT:

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12 Dated: November 13, 2015
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Stipulation re Garnishment and Order

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ORDER

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The Court, having reviewed the court files and the Parties’ Stipulation re Garnishment (the

3 “Stipulation”), and good cause appearing therefrom, hereby APPROVES the Stipulation. Accordingly,
4 IT IS ORDERED that:
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1.

The United States’ application for a final order of garnishment is GRANTED.

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2.

S&D Carwash Management, LLC shall garnish defendant Donald Mitch Shiveley’s semi-

7 monthly non-exempt, earnings, wages and bonuses at the rate of 10% from each payment from the date
8 it received the United States’ writ of garnishment through April 30, 2016.
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3.

Beginning on May 1, 2016, S&D Carwash shall garnish Defendant’s semi-monthly non-

10 exempt, disposable earnings, wages and bonuses at the rate of 25% from each payment until: the
11 restitution amount is paid in full; further order of this Court; or S&D Carwash no longer has custody,
12 possession or control of any property belonging to Defendant.
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4.

S&D Carwash shall DELIVER, within twenty (20) days of the filing of this Order, a

14 cashier’s check, money order or company draft in the sum of 10% of Defendant’s earnings, wages and
15 bonuses previously withheld by S&D Carwash pursuant to the writ of garnishment, made payable to the
16 Clerk of Court. S&D Carwash shall also state the docket number (Case No.: 2:06-CR-00273-MCE) on
17 the payment instrument and, if it desires a payment receipt, shall include a self-addressed, stamped
18 envelope with the payment.
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5.

S&D Carwash shall also provide the United States a written accounting of the amounts

20 withheld from Defendant’s payments during the period from service of the writ of garnishment to entry
21 of this final order.
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6.

Following its payment of the withheld amount as stated in paragraph 4, above, S&D

23 Carwash shall thereafter DELIVER, on a monthly basis, payments to the Clerk of Court consistent with
24 this order. S&D Carwash shall NOTIFY the United States, within 30 days, of any change: in the
25 amount of Defendant’s earnings, wages and bonuses; in the Defendant’s employment status; or affecting
26 S&D Carwash’s status as garnishee under this order.
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7.

This is a CONTINUING writ of garnishment against Defendant’s S&D Carwash

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Stipulation re Garnishment and Order

1 earnings, wages and bonuses which shall remain in place until further Court order. The Court shall
2 RETAIN jurisdiction to resolve matters through ancillary proceedings in the case, if necessary.
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8.

All payments shall be made payable to the “Clerk of the Court” at the Office of the Clerk,

4 United States District Court, Eastern District of California, 501 I Street, Suite 4-200, Sacramento,
5 California 95814. S&D Carwash shall also state the docket number (Case No.: 2:06-CR-00273-MCE)
6 on the payment instrument and, if it desires a payment receipt, shall include a self-addressed, stamped
7 envelope with the payment.
8 IT IS SO ORDERED.
9 Dated: November 17, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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Stipulation re Garnishment and Order