USA v. Diaz

Filing 22

WRIT OF GARNISHMENT issued to Lowe's Companies, Inc. (Attachments: # 1 Supplement Separate Instructions)(msr, COURT STAFF) (Filed on 5/2/2016)

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MICHAEL COSENTINO State Bar No. 83253
Attorney at Law
P.O. Box 129
Alameda, CA 94501

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Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff
United States of America

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA,
Case No. C99-00180 M

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Plaintiff,

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v.

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RODOLFO DIAZ, JR.
aka RODOLFO DIAZ,

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Defendant,

WRIT OF CONTINUING
GARNISHMENT

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and
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LOWE'S COMPANIES, INC.,
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Garnishee.
_______________________________/

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TO:

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Payroll Department
LOWE'S COMPANIES, INC.
1605 Curtis Bridge Road
Wilkesboro, NC 28697

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YOU ARE HEREBY COMMANDED TO GARNISH FOR THE BENEFIT OF

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THE UNITED STATES OF AMERICA THE WAGES, SALARY, OR COMMISSION IN

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YOUR CUSTODY, CONTROL, OR POSSESSION IN WHICH THE DEFENDANT-

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JUDGMENT DEBTOR HAS AN OWNERSHIP INTEREST.

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The name, SSN XXX-XX-4101, and last known address of the person who is
the defendant-judgment debtor (hereinafter “debtor”) in this action and whose property

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is subject to this Writ are as follows:

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RODOLFO DIAZ, JR. aka RODOLFO DIAZ
2037 Puerto Limon Court
San Jose, CA 95116

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This Writ has been issued at the request of the United States of America to

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enforce the collection of a civil judgment entered in favor of the United States against

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the debtor for a defaulted student loan in the amount of $4,616.39. There is a balance

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of $9,561.80 due on the judgment, which amount includes costs and interest

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computed through April 25, 2016.

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The following are the steps that you must take to comply with this Writ. If you
have any questions, you should consult with your attorney.

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1. Pursuant to 28 U.S.C. § 3205(c)(2)(F), if you have in your custody, control,

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or possession any property of the debtor, including wages, salary, or commissions, in

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which the debtor has a substantial nonexempt interest, or if you obtain custody,

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control, or possession of such property while this Writ is in effect, you must

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immediately withhold such property from the debtor and retain it in your possession

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until you receive instructions from the Court which will tell you what to do with the

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property. The United States has requested that the sum of 25% of the debtor’s

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disposable earnings, which under California law represents the nonexempt portion of

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the debtor’s earnings, be withheld from the defendant’s earnings.

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2. Pursuant to 28 U.S.C. § 3205(c)(2)(E), you are required to answer this Writ

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within 10 days after service of this Writ upon you. You must answer the Writ even if

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you do not have in your custody, control, or possession any property of the debtor.

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Pursuant to 28 U.S.C. § 3205(c)(4), your answer must state, under oath, the following

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information:

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a.

Whether or not you have in your custody, control, or possession, any

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property owned by the debtor in which the debtor has a substantial

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nonexempt interest, including nonexempt, disposable earnings;

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Writ of Continuing Garnishment cand C99-00180 M

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b.

a description of such property and the value of such property;

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c.

a description of any previous garnishments to which such property is

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subject and the extent to which any remaining property is not exempt;

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and

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d.

the amount of the funds you anticipate owing to the debtor in the future

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and whether the period for payment will be weekly or another specified

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period.

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For your convenience, a form which addresses the above-requested information is

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attached and may be used to Answer the Writ.

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3. After you complete the answer under oath, pursuant to 28 U.S.C. §

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3205(c)(2)(E) & (c)(4), within ten (10) days after service of this Writ upon you, you

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must mail or deliver the original Answer bearing the original signature of the person

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preparing the answer to the Court at the following address:

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Civil Clerk, United States District Court
450 Golden Gate Avenue, 16th Floor
San Francisco, CA 94102

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At the same time that you mail or deliver the original answer to the Court, you must

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also mail or deliver a copy of the original Answer to both the debtor and attorney for

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the United States at the following respective addresses:

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RODOLFO DIAZ, JR. aka RODOLFO DIAZ
2037 Puerto Limon Court
San Jose, CA 95116

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Michael Cosentino, Attorney at Law
P.O. Box 129
Alameda, CA 94501

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Please note that the attached form Answer contains a certificate of service which

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needs to be completed by the person mailing the copies of the answer to the debtor

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and the attorney for the United States, and which needs to be filed along with the

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Answer.

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IF YOU FAIL TO ANSWER THIS WRIT OR FAIL TO WITHHOLD PROPERTY

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Writ of Continuing Garnishment cand C99-00180 M

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IN ACCORDANCE WITH THIS WRIT, THE UNITED STATES MAY PETITION THE

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COURT FOR AN ORDER REQUIRING YOU TO APPEAR BEFORE THE COURT TO

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ANSWER THE WRIT AND TO WITHHOLD PROPERTY IN ACCORDANCE WITH

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THE WRIT BEFORE THE APPEARANCE DATE. IF YOU FAIL TO APPEAR OR DO

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APPEAR AND FAIL TO SHOW GOOD CAUSE WHY YOU FAILED TO COMPLY

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WITH THIS WRIT, THE COURT WILL ENTER A JUDGMENT AGAINST YOU FOR

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THE VALUE OF THE DEBTOR’S NONEXEMPT INTEREST IN SUCH PROPERTY

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(INCLUDING NONEXEMPT DISPOSABLE EARNINGS). THE COURT MAY ALSO

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AWARD A REASONABLE ATTORNEY’S FEE TO THE UNITED STATES AND

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AGAINST YOU IF THE WRIT IS NOT ANSWERED WITHIN THE TIME SPECIFIED

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HEREIN AND IF THE UNITED STATES FILES A PETITION REQUIRING YOU TO

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APPEAR.

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SUSAN Y. SOONG, Clerk
United States District Court
for the Northern District of California

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5/2/2016
Dated: _____________

By:
Deputy Clerk

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Mark Romyn

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Writ of Continuing Garnishment cand C99-00180 M

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DO NOT WITHHOLD THE EXEMPT PORTION OF THE EMPLOYEE'S EARNINGS
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1. Earnings include any money (whether called wages, salary, commissions,
bonuses, or anything else) paid for personal services, pension, or retirement.
Vacation or sick pay is earnings subject to withholding as it is received by the
employee.
2. Disposable earnings are different from gross pay or take-home pay. They
are the earnings left after deducting the part which state or federal law requires an
employer to withhold as mandatory deductions. Generally, these mandatory
deductions are federal income tax, social security (FICA) tax, state income tax, state
disability insurance, and payments to public employee retirement systems.
Disposable earnings can change from pay period to pay period, whenever gross pay
or required deductions change.
To determine earnings that1 are eligible for withholding, and therefore must be
withheld, see the chart below.

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USE THE CHART BELOW TO DETERMINE NONEXEMPT DISPOSABLE
EARNINGS AND THE APPLICABLE WITHHOLDING AMOUNT1 :
Pay Period: Weekly or
oftener

Every 2
weeks

Twice a
month

Once a
month

Disposable $ 0 to
earnings: $217.50

$ 0 to
$435.00

$ 0 to
$471.25

$ 0 to
$942.50

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Withhold:

Nothing (entire earnings are exempt)

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Disposable $217.51 to
earnings: $290.00

$435.01 to
$580.00

$471.26 to
$628.33

$942.51 to
$1,256.67

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Withhold:

Amt. over
$435.00

Amt. over
$471.25

Amt. over
$942.50

$580.01
or more

$628.34
or more

$1,256.68
or more

Amt. over
$217.50

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Disposable $290.01
earnings: or more

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Withhold:

25% of disposable earnings (balance is exempt)

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Based on the Federal Minimum Wage Earnings of $7.25 an hour, effective 07/24/2009

Writ of Continuing Garnishment cand C99-00180 M

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

)
) Case No. C99-00180 M
Plaintiff,
)
)
v.
)
)
RODOLFO DIAZ, JR.
)
aka RODOLFO DIAZ,
)
Defendant, )
)
and
)
)
LOWE'S COMPANIES, INC.,
) ANSWER OF GARNISHEE
)
Garnishee. )
________________________________)

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I, _______________________, being first duly sworn, hereby state the following:

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1. I am the ____________________________ (Of ficial Title) of the Garnishee

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named in the above caption. I am authorized to prepare this Answer on behalf of the

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Garnishee.

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2. The Garnishee was served with the Writ of Continuing Garnishment on
____________________ (date) in this action.
3. The Garnishee currently has custody, control, or possession of earnings of
the Defendant. Yes____ No____
4. The Garnishee expects to obtain custody, control, or possession of earnings

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of the Defendant in the foreseeable future. Yes____ No____
5. For the pay period in effect on the date of service of this Writ of Continuing
Garnishment, the Garnishee states as follows:

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a.

Defendant was in my/our employ. Yes____ No____

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b.

The Defendant’s pay period is ____ weekly, ____ bi-weekly,

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____ semi-monthly, ____ monthly.
c.

The Defendant’s present pay period began on _______________ (date).
(“Present” means the pay period in which the Writ of Continuing
Garnishment was served.)

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d.

The Defendant’s present pay period ends on ________________ (date).

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e.

The Defendant’s net wages are as calculated below:

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(1) Gross Pay

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(2) Federal income tax

$______________

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(3) F.I.C.A. tax

$______________

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(4) State income tax

$______________

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(5) SDI

$______________

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$______________

Total tax withholdings

$______________

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Net Wages
(gross pay minus above withheld taxes)

$______________

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6. Are there any other garnishments currently in effect? Yes ____ No ____
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If the answers is yes, describe below and attach to this Answer a copy of each
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garnishment:
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____________________________________________________________________
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____________________________________________________________________
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____________________________________________________________________
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7. Will the Garnishee owe the Defendant money in the foreseeable future?
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Yes ____ No____

If the answer is yes, provide the reason why such money will be

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owed, the amount of money that will be owed, and the date or dates on which each
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2

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payment will be due:

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Type of
Payment

Amount

Date Payment
Will be Due

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1.________________________

_____________

_____________

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2.________________________

_____________

_____________

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3.________________________

_____________

_____________

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8. Does the Garnishee currently have custody, control or possession of property

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(other than earnings) such as bank accounts, pensions, thrift plans, etc., in which the

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Defendant maintains an interest? Yes____ No____ If the answer is yes, then

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provide the following information for each item of such property:

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Description of
Property

Approximate
Value

Description of
Defendant’s Interest

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1.________________________

_____________

_____________

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2.________________________

_____________

_____________

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3.________________________

_____________

_____________

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4.________________________

_____________

_____________

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9. Does the Garnishee expect to obtain in the foreseeable future custody,

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control or possession of property (other than earnings) such as bank accounts,

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pensions, thrift plans, etc., in which the Defendant maintains an interest? Yes____

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No____ If the answer is yes, then provide the following information for each item of

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such property:

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Description of
Property

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2.

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3.

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Description of
Defendant’s Interest

Date Will
Obtain
Property

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Approximate
Value

4.

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10. Does the Garnishee have any objections or defenses to the Writ of

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Continuing Garnishment? Yes____ No____ If the answer is yes, list the nature

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and basis of each objection and/or defense:

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____________________________________________________________________

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____________________________________________________________________

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____________________________________________________________________

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____________________________________________________________________

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____________________________________________________________________

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On behalf of LOWE'S COMPANIES, INC., I hereby certify under penalty of

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perjury under the laws of the United States of America that the foregoing is true and

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correct.

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Telephone #______________________

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Fax #

______________________

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Dated: ______________

By: _____________________________

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(Sign above and type or print name below)
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CERTIFICATE OF SERVICE

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I, ______________________________, declare:

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That I am a citizen of the United States and employed in the County of

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__________________, North Carolina; that m y business address is

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__________________________________________________________; that I am

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over the age of eighteen years; and that I am not a party to the above-entitled action;

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That on _________________ (date), I deposited in the United States m ail, in
envelopes bearing the requisite postage, a copy of:

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ANSWER OF GARNISHEE

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addressed to each of the following, at their last known addresses, at which place there

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is service by United States mail.

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RODOLFO DIAZ, JR. aka RODOLFO DIAZ
2037 Puerto Limon Court
San Jose, CA 95116

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Michael Cosentino
Attorney at Law
P.O. Box 129
Alameda, CA 94501

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This Certificate was executed on _____________________ (date),
at ________________________ (city), North Carolina.
I certify under penalty of perjury that the foregoing is true and correct.

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________________________________

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(sign above and type or print name
below)

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