USA v. Browning
Filing
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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-00448-MAG (JSC)
Plaintiff,
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v.
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United States District Court
Northern District of California
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ANTOINETTE CALDWELL, a.k.a.
ANTOINETTE M. BROWNING,
Defendant.
ORDER REQUESTING
SUPPLEMENTAL PLEADINGS
REGARDING APPLICATION FOR
WRIT OF CONTINUING
GARNISHMENT
Re: Dkt. No. 10
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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 Antoinette Caldwell, a.k.a. Antoinette Browning. Ms. Caldwell did not
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respond and default judgment was entered against her on May 17, 1999 in the amount of
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$8,211.75. Nearly 16 years later, the United States filed the now pending Ex Parte Motion for
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Writ of Continuing Garnishment seeking an order authorizing garnishment of Ms. Caldwell’s
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earnings from Alliance Data. (Dkt. No. 10.) Because the Court has concerns regarding certain
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aspects of the application, the United States is ordered to file a supplemental memorandum and
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declaration in support of its 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. Caldwell was served with the writ application at
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her last known address of 977 Miller Avenue, Columbus, Ohio 43206; 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 reveals that the Franklin County Auditor shows property
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records for an Antoinette Caldwell at 1777 N. Eastfield Dr., Columbus, Ohio 43223, but no such
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record appears for either an Antoinette Caldwell or an Antoinette Browning at 977 Miller Avenue,
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Columbus, Ohio 43206. Given the passage of time and the United States’ obligation to provide
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notice of the writ under Section 3202(b) and 3205(c), the Court must assure itself that every
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reasonable effort was made to obtain a correct address for Ms. Caldwell. Accordingly, the United
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States shall specify what steps it took to determine Ms. Caldwell’s current address and when it did
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so.
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Second, the original default judgment was for $8,211.75 plus interest at a rate of 4.727
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percent to be compounded annually. (Dkt. No. 11-1.) The United States indicates that the total
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balance is now $15,624.10. 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 Ms. Caldwell.
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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
given the Court’s concerns. (Dkt. No. 10-3.) 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 Ms. Caldwell 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. 11 at 3.) It is unclear from this proof of service whether the United States served Ms.
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Caldwell with the attachments to the Application. This ambiguity is critical because the
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attachments include the notice required by Section 3202. The Court also notes that the
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attachments are docketed as “errata” even though they are not marked as “errata” on the
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documents themselves and they are not corrections to any previously filed documents. The United
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States shall explain 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. Caldwell’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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Ms. Caldwell, 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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