USA v. Pellom

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. 99-cv-00402-MAG (JSC)

Plaintiff,
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v.
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LEO PELLOM,
Defendant.

United States District Court
Northern District of California

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ORDER REQUESTING
SUPPLEMENTAL PLEADINGS
REGARDING APPLICATION FOR
WRIT OF CONTINUING
GARNISHMENT
Re: Dkt. No. 8

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In 1999, Plaintiff the United States of America brought an action to collect a student loan
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debt from Defendant Leo Pellom. Mr. Pellom did not respond and default judgment was entered
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against him on May 11, 1999 in the amount of $7,092.46. Nearly 16 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 Mr. Pellom’s earnings from the Pacific Maritime Association. (Dkt.
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No. 8.) Because the Court has concerns regarding certain aspects of the application, the United
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States is ordered to file a supplemental memorandum and declaration in support of its application
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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 Mr. Pellom was served with the writ application at his

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last known address of 3400 Richmond Pkwy, San Pablo, California 94806; 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. Further, an internet search reflects that this address is for a multiunit apartment

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building, but no apartment number is included with the address. Given the passage of time and

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the United States’ obligation to provide notice of the writ under Section 3202(b) and 3205(c), the

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Court must assure itself that every reasonable effort was made to obtain a correct address for Mr.

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Pellom at which he would actually receive mailed notice. Accordingly, the United States shall

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specify what steps it took to determine Mr. Pellom’s current address and when it did so. It should

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also explain why no apartment number is listed as part of the address.

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Second, the original default judgment was for $7,092.46 plus interest at a rate of 4.732
percent to be compounded annually. (Dkt. No. 6.) The United States indicates that the total
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balance is now $13,768.27. The United States shall supplement its application with an accounting

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of how this amount was determined.

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

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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

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application for a writ on both the judgment debtor and the garnishee. Arguably, the United States’

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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. 8-3.) Nonetheless, the United States has filed a proof of

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United States District Court
Northern District of California

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service that indicates that it served Mr. Pellom with:
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. 9 at 3.) It is unclear from this proof of service whether the United States served Mr.

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Pellom 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 Mr. Pellom’s last known address, (2) how the

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amount due and owing was computed, (3) exactly what documents the United States served on

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Mr. Pellom, and (4) why the 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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