Consumer Financial Protection Bureau v. Integrity Advance, LLC et al

Filing 221

ORDER REGARDING REQUESTS FOR HEARINGS ON WRITS OF GARNISHMENT, finding as moot 193 James Carnes' First Motion for Hearing; and denying 218 James Carnes' Second Motion for Hearing. Signed by Magistrate Judge Teresa J. James on 5/1/2024. A copy of this Order sent to Garnishee Grushko and Mittman PC by regular mail and email. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CONSUMER FINANCIAL
PROTECTION BUREAU,
Plaintiff,
v.
INTEGRITY ADVANCE, LLC and
JAMES R. CARNES,
Defendants.

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Case No. 21-mc-206-DDC-TJJ

ORDER REGARDING REQUESTS FOR HEARINGS
ON WRITS OF GARNISHMENT
Plaintiff filed this miscellaneous action seeking to enforce its judgment against Defendants
under the postjudgment remedies provisions of the Federal Debt Collection Procedures Act.1 This
matter is before the Court on the Requests for Hearing (ECF Nos. 193 and 218) filed by Defendant
James Carnes (“Carnes”). Pursuant to 28 U.S.C. § 3205(c)(5), he requests hearing(s) on the Writs
of Garnishment issued to Garnishee Grushko and Mittman PC (“G&M”) (ECF Nos. 182 and 214).
As explained below, Carnes’ First Request for Hearing (ECF No. 193) is moot and Second Request
for Hearing (ECF No. 218) is denied.
First Writ of Garnishment to G&M
A Writ of Garnishment was issued in this case on February 13, 2024 (ECF No. 182) and
served on G&M on February 20, 2024 (“First Writ of Garnishment”). On March 5, 2024, Carnes
filed his Motion, request for hearing, and claim for partial exemption with regard to the First Writ

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28 U.S.C. § 3201 et seq.

of Garnishment (ECF No. 193) (“First Request for Hearing”). On March 7, 2024, G&M filed its
Answer (ECF No. 194) to the First Writ of Garnishment, reflecting that it had no property in its
custody, control, or possession in which Carnes maintains an interest, and affirmatively stating:
“The Garnishee is in no manner and upon no account indebted or under liability to the Judgment
Debtor, and the Garnishee does not have in Garnishee’s possession or control any property
belonging to the Judgment Debtor, or in which the Garnishee has an interest; and is in no manner
liable as Garnishee in this action . . . .” (ECF No. 194).
On March 13, 2024, the Court contacted counsel via email to inquire whether they agreed
Carnes’ First Request for Hearing (ECF No. 193) was now moot in light of the statements made
in G&M’s Answer. Carnes’ counsel responded that he agreed his First Request for Hearing was
moot, but Plaintiff’s counsel responded that Plaintiff did not believe the First Request for Hearing
was moot and it intended to file a response to it.
Plaintiff filed its Response (ECF No. 197) on March 19, 2024 and an Objection to
Garnishee G&M’s Answer to Writ of Garnishment (ECF No. 199) on March 26, 2024. In its
Objection, it requested G&M be required to file an amended answer including an accounting of
funds paid to Carnes since receipt of the garnishment or that the Court schedule a hearing in
accordance with 28 U.S.C. § 3205(c)(5). Carnes filed his Reply (ECF No. 201) on March 26,
2024, stating his exemption claim and hearing request were “not yet ripe,” and noting that the
”Court need not resolve [Carnes’s] exemption claim regarding the [First Writ of Garnishment] yet
because, based on the current answers to the Writ [194] there is nothing to resolve.” Plaintiff
subsequently advised the Court that it no longer believed a hearing was necessary on G&M’s
Answer to the First Writ of Garnishment. It later filed its Notice (ECF No. 219) withdrawing its

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objections, but noted the Writs of Garnishment are continuing writs under Section 3205(a) and
remain in place.
Both Carnes and Plaintiff have withdrawn their requests for hearing as to the First Writ of
Garnishment. The Court therefore finds that Carnes’ First Request for Hearing (ECF No. 193) is
moot.
Second Writ of Garnishment to G&M
On April 5, 2024, Plaintiff filed an application for a second writ of garnishment (ECF No.
213), and a Writ of Garnishment (ECF No. 214) was issued to G&M that same day (“Second Writ
of Garnishment”).
On April 24, 2024, G&M filed its Answer (ECF No. 217) to the Second Writ of
Garnishment, which is similar in all material respects to its Answer to the First Writ of
Garnishment, once again denying that it has custody, control or possession of any property of
Carnes and stating it does not anticipate owing funds, accounts, monies, stock, or earning to Carnes
in the future.
On April 26, 2024, Carnes filed another Request for Hearing and claim for partial
exemption (ECF No. 218) (“Second Request for Hearing”). Carnes objects to the Second Writ of
Garnishment because, “although he does not expect to receive payments from the garnished
entities in the near future (and may never receive further payments from the entities), any payments
subject to the writ would be partially exempt under Kansas's wage exemption statute.”
The Court denies Carnes’s Second Request for Hearing with regard to the Second Writ of
Garnishment based upon G&M’s Answer denying that it has in its possession, custody or control
any property of Carnes and stating it does not anticipate owing funds, accounts, monies, stock, or

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earnings to Carnes in the future. As a result, as Carnes noted previously with regard to the First
Writ of Garnishment, his exemption claim and Second Request for Hearing are “not yet ripe.”
Simply put, given G&M’s Answer, the Court finds there is no exemption issue for the Court to
decide at this time and therefore no reason to conduct a hearing at this time.
IT IS THEREFORE ORDERED that Defendant James Carnes’ First Request for
Hearing (ECF No. 193) is moot and Second Request for Hearing (ECF No. 218) is denied.
IT IS SO ORDERED.
A copy of this Order will be sent to Garnishee Grushko and Mittman PC by regular mail
and email.
Dated May 1, 2024 at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

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