United States Of America v. Loya

Filing 18

WRIT OF GARNISHMENT (msr, COURT STAFF) (Filed on 12/6/2013) (Additional attachment(s) added on 12/6/2013: # 1 Supplement Separate Instructions) (msr, COURT STAFF).

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1 2 MICHAEL COSENTINO State Bar No. 83253 Attorney at Law P.O. Box 129 Alameda, CA 94501 3 4 5 Telephone: Facsimile: (510) 523-4702 (510) 747-1640 Attorney for Plaintiff United States of America 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) Defendant, ) ) Case No. CV11-1123 SLM WRIT OF CONTINUING GARNISHMENT ) ) ) ) Garnishee. ________________________ )) 19 TO: 20 21 Payroll Department Banner Health Systems 1441 N. 12th St. Phoenix, AZ 85006 22 YOU ARE HEREBY COMMANDED TO GARNISH FOR THE BENEFIT OF THE 23 UNITED STATES OF AMERICA THE WAGES, SALARY, OR COMMISSION IN 24 YOUR CUSTODY, CONTROL, OR POSSESSION IN WHICH THE DEFENDANT- 25 JUDGMENT DEBTOR HAS AN OWNERSHIP INTEREST. 26 The name and last known address of the person who is the defendant- 27 judgment debtor (hereinafter "debtor") in this action and whose property is subject to 28 this Writ are as follows: 1 2 3 Norberta J. Loya aka Norberta Loya 8831 N. 50th Drive Glendale, AZ 85302 This Writ has been issued at the request of the United States of America to 4 enforce the collection of a civil judgment entered in favor of the United States against 5 the debtor for a defaulted student loan in the amount of $10,492.00. There is a 6 balance of $13,844.58 due on the judgment, which amount includes costs and interest 7 computed through November 23, 2013. 8 The following are the steps that you must take to comply with this Writ. If you 9 have any questions, you should consult with your attorney. 10 1. Pursuant to 28 U.S.C. § 3205(c)(2)(F), if you have in your custody, control, 11 or possession any property of the debtor, including wages, salary, or commissions, in 12 which the debtor has a substantial nonexempt interest, or if you obtain custody, 13 control, or possession of such property while this Writ is in effect, you must 14 immediately withhold such property from the debtor and retain it in your possession 15 until you receive instructions from the Court which will tell you what to do with the 16 property. The United States has requested that the sum of 25% of the debtor's 17 disposable earnings, which under California law represents the nonexempt portion of 18 the debtor's earnings, be withheld from the defendant's earnings. 19 2. Pursuant to 28 U.S.C. § 3205(c)(2)(E), you are required to answer this Writ 20 within 10 days after service of this Writ upon you. You must answer the Writ even if 21 you do not have in your custody, control, or possession any property of the debtor. 22 information: 24 a. Whether or not you have in your custody, control, or possession, any 25 property owned by the debtor in which the debtor has a substantial 26 nonexempt interest, including nonexempt, disposable earnings; 27 b. a description of such property and the value of such property; 28 Writ of Continuing Garnishment cand CV11-1123 SLM 2 1 c. a description of any previous garnishments to which such property is 2 subject and the extent to which any remaining property is not exempt; 3 and 4 d. the amount of the funds you anticipate owing to the debtor in the future 5 and whether the period for payment will be weekly or another specified 6 period. 7 For your convenience, a form which addresses the above-requested information is 8 attached and may be used to Answer the Writ. 9 3. After you complete the answer under oath, pursuant to 28 U.S.C. § 10 3205(c)(2)(E) & (c)(4), within ten (10) days after service of this Writ upon you, you 11 must mail or deliver the original Answer bearing the original signature of the person 12 preparing the answer to the Court at the following address: Civil Clerk, United States District Court 450 Golden Gate Avenue, 16th Floor San Francisco, CA 94102 13 14 15 At the same time that you mail or deliver the original answer to the Court, you must 16 also mail or deliver a copy of the original Answer to both the debtor and attorney for 17 the United States at the following respective addresses: Norberta J. Loya aka Norberta Loya 8831 N. 50th Drive Glendale, AZ 85302 18 19 20 Michael Cosentino, Attorney at Law P.O. Box 129 Alameda, CA 94501 21 22 Please note that the attached form Answer contains a certificate of service which 23 needs to be completed by the person mailing the copies of the answer to the debtor 24 and the attorney for the United States, and which needs to be filed along with the 25 Answer. 26 IF YOU FAIL TO ANSWER THIS WRIT OR FAIL TO WITHHOLD PROPERTY 27 IN ACCORDANCE WITH THIS WRIT, THE UNITED STATES MAY PETITION THE 28 Writ of Continuing Garnishment cand CV11-1123 SLM 3 1 COURT FOR AN ORDER REQUIRING YOU TO APPEAR BEFORE THE COURT TO 2 ANSWER THE WRIT AND TO WITHHOLD PROPERTY IN ACCORDANCE WITH 3 THE WRIT BEFORE THE APPEARANCE DATE. IF YOU FAIL TO APPEAR OR DO 4 APPEAR AND FAIL TO SHOW GOOD CAUSE WHY YOU FAILED TO COMPLY 5 WITH THIS WRIT, THE COURT WILL ENTER A JUDGMENT AGAINST YOU FOR 6 THE VALUE OF THE DEBTOR'S NONEXEMPT INTEREST IN SUCH PROPERTY 7 (INCLUDING NONEXEMPT DISPOSABLE EARNINGS). THE COURT MAY ALSO 8 AWARD A REASONABLE ATTORNEY'S FEE TO THE UNITED STATES AND 9 AGAINST YOU IF THE WRIT IS NOT ANSWERED WITHIN THE TIME SPECIFIED 10 HEREIN AND IF THE UNITED STATES FILES A PETITION REQUIRING YOU TO 11 APPEAR. 12 13 RICHARD W. WIEKING, Clerk United States District Court for the Northern District of California 14 15 Dated: /'1-/o~ I/7.---cO I 16 17 18 19 20 21 22 23 24 25 26 27 28 Writ of Continuing Garnishment cand CV11-1123 SLM 4 1 DO NOT WITHHOLD THE EXEMPT PORTION OF THE EMPLOYEE'S EARNINGS 2 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. 3 4 5 6 7 8 9 10 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 that 1 are eligible for withholding, and therefore must be withheld, see the chart below. USE THE CHART BELOW TO DETERMINE NONEXEMPT DISPOSABLE EARNINGS AND THE APPLICABLE WITHHOLDING AMOUNT 1 : 11 Pay Period: Weekly or oftener Every 2 weeks Twice a month Once a month 14 Disposable $0 to earnings: $217.50 $0 to $435.00 $0 to $471.25 $ 0 to $942.50 15 Withhold: 12 13 Nothing (entire earnings are exempt) 16 Disposable $217.51 to earnings: $290.00 $435.01 to $580.00 $471.26 to $628.33 $942.51 to $1,256.67 Withhold: 17 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 18 19 Amt. over $217.50 20 21 Disposable $290.01 earnings: or more 22 Withhold: 25% of disposable earnings (balance is exempt) 23 24 25 26 27 1 28 Based on the Federal Minimum Wage Earnings of $7.25 an hour, effective 07/24/2009 Writ of Continuing Garnishment cand CV11-1123 SLM 5 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Plaintiff, 12 v. 13 14 ) ) Case No. CV11-1123 SLM Norberto J. Loya aka Norberto Loya, 15 Defendant, 16 and ) ) ) ) ) ) ) ) ) ) ) ) ANSWER OF GARNISHEE ) 17 Banner Health Systems, 18 Garnishee. 19 ) ) 20 I , - - - - - - - - - - ' being first duly sworn, hereby state the following: 21 22 1. I am t h e - - - - - - - - - - - - (Official Title) of the Garnishee named in the above caption. I am authorized to prepare this Answer on behalf of the 23 Garnishee. 24 2. The Garnishee was served with the Writ of Continuing Garnishment on 25 - - - - - - - - - ( d a t e ) in this action. 26 3. The Garnishee currently has custody, control, or possession of earnings of 27 the Defendant. Yes__ No__ 28 4. The Garnishee expects to obtain custody, control, or possession of earnings 1 2 3 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: 4 a. Defendant was in my/our employ. Yes__ No__ 5 b. The Defendant's pay period is __ weekly, __ bi-weekly, __ semi-monthly, __ monthly. 6 c. The Defendant's present pay period began on ("Present" means the pay period in which the Writ of Continuing Garnishment was served.) (date). 9 d. The Defendant's present pay period ends on (date). 10 e. The Defendant's net wages are as calculated below: 7 8 $ 11 (1) Gross Pay 12 (2) Federal income tax $ 13 (3) F.I.C.A. tax $ 14 (4) State income tax $ 15 (5) SDI $ Total tax withholdings 16 $ 17 18 Net Wages (gross pay minus above withheld taxes) $ 19 6. Are there any other garnishments currently in effect? Yes No 20 If the answers is yes, describe below and attach to this Answer a copy of each 21 garnishment: 22 23 24 25 7. Will the Garnishee owe the Defendant money in the foreseeable future? 26 Yes __ No__ If the answer is yes, provide the reason why such money will be 27 owed, the amount of money that will be owed, and the date or dates on which each 28 2 1 payment will be due: 2 3 Type of Payment 4 Date Payment Will be Due 1. _ _ _ _ _ _ _ _ __ Amount 52. _ _ _ _ _ _ _ _ __ 6 3. _ _ _ _ _ _ _ _ __ 7 8. Does the Garnishee currently have custody, control or possession of property 8 (other than earnings) such as bank accounts, pensions, thrift plans, etc., in which the 9 Defendant maintains an interest? Yes __ No__ If the answer is yes, then 10 provide the following information for each item of such property: 11 12 Description of ProQerty 13 1. 14 2. 15 3. 16 4. 17 Approximate Value Description of Defendant's Interest 9. Does the Garnishee expect to obtain in the foreseeable future custody, 18 control or possession of property (other than earnings) such as bank accounts, 19 pensions, thrift plans, etc., in which the Defendant maintains an interest? Yes __ 20 No__ If the answer is yes, then provide the following information for each item of 21 such property: 22 23 Description of ProQerty 24 2. 26 3. 27 Description of Defendant's Interest Date Will Obtain ProQerty 1. 25 Approximate Value 4. 28 3 1 10. Does the Garnishee have any objections or defenses to the Writ of 2 Continuing Garnishment? Yes__ No__ If the answer is yes, list the nature 3 and basis of each objection and/or defense: 4 5 6 7 8 9 On behalf of Banner Health Systems, I hereby certify under penalty of perjury 10 under the laws of the United States of America that the foregoing is true and correct. 11 12 Dated: By: ________________________ 13 (Sign above and type or print name below) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CERTIFICATE OF SERVICE 1 2 I , - - - - - - - - - - - - - ' declare: 3 That I am a citizen of the United States and employed in the County of , California; that my business address is 4 5 6 7 8 ; that I am over the age of eighteen years; and that I am not a party to the above-entitled action; That on _ _ _ _ _ _ _ (date), I deposited in the United States mail, in envelopes bearing the requisite postage, a copy of: 9 ANSWER OF GARNISHEE 10 addressed to each of the following, at their last known addresses, at which place 11 there is service by United States mail. 12 Norberta J. Loya aka Norberta Loya 8831 N. 50th Drive Glendale, AZ 85302 13 14 15 16 17 Michael Cosentino Attorney at Law P.O. Box 129 Alameda, CA 94501 This Certificate was executed on _ _ _ _ _ _ _ _ _ (date), 18 19 a t - - - - - - - - - - (city), California. I certify under penalty of perjury that the foregoing is true and correct. 20 21 22 23 24 25 26 27 28 (sign above and type or print name below)

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