USA v. Reed

Filing 12

ORDER REQUESTING SUPPLEMENTAL PLEADINGS REGARDING APPLICATION FOR WRIT OF CONTINUING GARNISHMENT. Signed by Magistrate Judge Jacqueline Scott Corley on 2/13/2015. (ahm, COURT STAFF) (Filed on 2/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Case No. 97-cv-01173-MAG (JSC)

Plaintiff,
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v.
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DEBRA REED,

ORDER REQUESTING
SUPPLEMENTAL PLEADINGS
REGARDING APPLICATION FOR
WRIT OF CONTINUING
GARNISHMENT

Defendant.

United States District Court
Northern District of California

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Re: Dkt. No. 9

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In 1997, Plaintiff the United States of America brought an action to collect a student loan

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debt from Defendant Debra Reed. Ms. Reed did not respond and default judgment was entered

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against her on June 16, 1997 in the amount of $2,438.30. Nearly 19 years later, the United States

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filed the now pending Ex Parte Motion for Writ of Continuing Garnishment seeking an order

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authorizing garnishment of Ms. Reed’s earnings from the City and County of San Francisco.

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(Dkt. No. 9.) Because the Court has concerns regarding certain aspects of the application, the

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United States is ordered to file a supplemental memorandum and declaration in support of its

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application as set forth below.

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DISCUSSION

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To obtain a writ of garnishment, the United States must (1) file an application for a writ of

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garnishment in accordance with 28 U.S.C. § 3205(b), and (2) prepare and file with the Clerk of the

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Court a notice in the form proscribed in 28 U.S.C. § 3202(b). The notice must include an

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explanation of the judgment debtor’s rights, exemptions that may apply, and the procedures

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applicable if the judgment debtor disputes the issuance of the writ. 28 U.S.C. § 3202(b). These

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procedures include the right to request a hearing before the Court within 20 days of receipt of the

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notice. Id. The Clerk shall issue the notice upon filing and the United States shall serve the notice

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and copy of the application for a writ of garnishment on the judgment debtor and the garnishee.

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28 U.S.C. § 3202(c).

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Upon receipt of an application for a writ of garnishment, the court shall issue the writ of

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garnishment if it is satisfied that the United States has complied with the requirements of Section

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3205(b). In particular, the application must indicate: (1) the judgment debtor’s name, social

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security number, and last known address, (2) the nature and amount of the debt owed, and (3) that

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the garnishee is believed to have possession of property in which the debtor has a substantial

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nonexempt interest. 28 U.S.C. § 3305(b)(1). If the court grants the writ of garnishment, the

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United States must serve the writ on the garnishee and the judgment debtor along with (1)
instructions “explaining the requirement that the garnishee submit a written answer to the writ,”

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United States District Court
Northern District of California

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and (2) “instructions to the judgment debtor for objecting to the answer of the garnishee and for

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obtaining a hearing on the objections.” 28 U.S.C. § 3205(c)(3). The garnishee is then required to

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answer in writing. 28 U.S.C. § 3205(c)(3). Section 3205(c)(5) allows a defendant (judgment

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debtor) to file a request for a hearing within twenty days after receipt of the answer by the

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garnishee. 28 U.S.C. § 3205(c)(5).

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The Court is not yet comfortable with issuing the notice and writ in this case for two

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reasons. First, the application indicates that Ms. Reed was served with the writ application at her

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last known address of 3229 Ashley Way, Antioch, California 94509; however, neither the

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application nor declaration filed in support of the application reflects how this address was

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identified. Given the passage of time and the United States’ obligation to provide notice of the

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writ under Section 3202(b) and 3205(c), the Court must assure itself that every reasonable effort

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was made to obtain a correct address for Ms. Reed. Accordingly, the United States shall specify

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what steps it took to determine Ms. Reed’s current address and when it did so.

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Second, the original default judgment was for $2,438.30 plus interest at a rate of 5.88

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percent to be compounded annually. (Dkt. No. 6.) The application indicates that “the debtor has

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paid and/or been credited with a total of $1,772.00 towards the judgment debt. As a result, there is

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a balance due of $4,690.53, which amount includes interest computed through January 6, 2015.”

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(Dkt. No. 9 at 2:11-14.) This accounting suggests that of her original debt (not including interest),
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Ms. Reed has paid all but $666.30; the United States nonetheless seeks to collect an amount seven

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times this number. Given that the compounded interest is assessed annually, this amount may be

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proper, but it is impossible to verify without an accounting of when Ms. Reed paid the $1,772.00

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and how the interest was assessed during the intervening years. The United States shall

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supplement its application with such an accounting.

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Finally, it is unclear which of the United States’ filings have been served on Ms. Reed.

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Because the writ has yet to issue, the United States’ obligation to serve arises under Section

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3202(c) rather than Section 3205(c)(3). Section 3205(c) appears to apply only once the court

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grants the writ. Under Section 3202(c), the United States must serve a copy of the notice and the
application for a writ on both the judgment debtor and the garnishee. Arguably, the United States’

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United States District Court
Northern District of California

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obligation to so serve only arises after the Clerk issues the notice which has not yet happened here

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given the Court’s concerns. (Dkt. No. 9-3.) Nonetheless, the United States has filed a proof of

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service that indicates that it served Ms. Reed with:

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DECLARATION OF MICHAEL COSENTINO IN SUPPORT OF
APPLICATION FOR WRIT OF CONTINUING GARNISHMENT,
and the
APPLICATION FOR WRIT OF CONTINUING GARNISHMENT,
and the

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(Proposed) ORDER GRANTING APPLICATION FOR WRIT OF
CONTINUING GARNISHMENT and the

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(proposed) WRIT OF CONTINUING GARNISHMENT

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(Dkt. No. 10 at 3.) It is unclear from this proof of service whether the United States served Ms.

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Reed with the attachments to the Application. This ambiguity is critical because the attachments

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include the notice required by section 3202. The Court also notes that the attachments are

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docketed as “errata” even though they are not marked as “errata” on the documents themselves

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and they are not corrections to any previously filed documents. The United States shall explain

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the errata designation in its supplemental filing.

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In light of these concerns and questions, within 14 days from the date of this Order the

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United States is ordered to file a supplemental memorandum with supporting declaration which

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answers: (1) what steps were taken to ascertain Ms. Reed’s last known address, (2) how the
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amount due and owing was computed, accounting for the payments that were made on the original

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debt, (3) exactly what documents the United States served on Ms. Reed, and (4) why the

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attachments to the Application are docketed as “errata.”

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IT IS SO ORDERED.
Dated: February 13, 2015
______________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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