T-Mobile USA, Inc. v. Yoak et al

Filing 192

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff shall have ten days from the date of this Order to deposit a bond with the Court, as required by Missouri law. Upon such compliance, the motion for prejudgment attachment shall be granted. Absent such action, the motion shall be denied. Response to Court due by 3/26/2012. Signed by Honorable Audrey G. Fleissig on 3/15/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
T-MOBILE USA, INC.,
Plaintiff,
v.

JAMIE D. YOAK, VIRGINIA YOAK, and
JAMES YOAK,
Defendants.

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No. 4:10CV02244 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiff T-Mobile USA, Inc., for
prejudgment attachment (Doc. No. 157) of a $100,000 certificate of deposit (“CD”) and a
money market account of approximately $30,000, both held by Regions Bank, Inc.,
Wentzville, Missouri. Plaintiff asserts that although the CD and the money market
account area in the name of Virginia Yoak, who is the mother of Defendant Jamie Yoak,
the funds are actually concealed assets of Jamie Yoak, and that attachment of the funds is
necessary to secure satisfaction of judgment in the event Plaintiff prevails in this action
and is awarded the money damages it is seeking in the amount of $348,208.98.
BACKGROUND
The initial complaint, filed on December 1, 2010, alleged that beginning in 2010
Jamie Yoak and two other parties (including Gregory Fernandez) who have since been
dismissed from the action, engaged in illegal business practices, including fraudulently
“porting” vanity phone numbers of Plaintiff’s customers and selling the numbers for a

profit. On December 16, 2011, Jamie Yoak filed a “Motion for Pro Bono Neutral” in this
case, declaring under penalty of perjury that she was financially unable to pay mediation
costs. In an attached financial affidavit, she wrote that her only income was
$1,400/month in Social Security disability benefits. She indicated in check-box format
that she had no cash on hand, or money in savings or checking accounts, adding in
handwriting, “only the remainder of [Social Security disability benefits].” She also
indicated that she owned no real estate or personal belongings. (Doc. No. 144.)
On December 28, 2011, Plaintiff filed the present motion for prejudgment
attachment. Along with the motion, Plaintiff filed an affidavit by an analyst in its Risk
Assessment and Fraud Operations Department attesting that the amount Plaintiff should
recover in this action was at least $348,208.98, that Plaintiff had good cause to believe
that Jamie Yoak fraudulently concealed from Plaintiff “her Regions Bank assets,” and
may transfer these assets if an order of prejudgment attachment was not entered
immediately, and had transferred title of her house (to her parents) in order to protect the
property from Plaintiff’s reach.
On January 18, 2012, counsel representing Virginia Yoak participated in a
telephonic conference with the Court, during which February 15, 2012, was set as the
date for an evidentiary hearing on Plaintiff’s motion for prejudgment attachment. Thus,
Virginia Yoak had actual notice of the motion for prejudgment attachment and of the
hearing, although she was not served with a copy of the motion. Virginia Yoak did not
attend the hearing but her attorney was present. Jamie Yoak and her counsel were

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present at the hearing. Jamie Yoak elected not to testify.
At the hearing, Plaintiff presented evidence that most, if not all, of the funds for
the purchase of the CD and in the money market account (Account No. xxxxxxx663) in
question were deposited by Jamie Yoak, and that most, if not all, of the funds were
gained as a result of the illegal conduct by Jamie Yoak alleged in the complaint. Among
the funds deposited in the account were funds from Fernandez, who, as noted above, was
previously a defendant in this action.1 It is also undisputed that on November 24, 2010,
approximately ten days after T-Mobile served Jamie Yoak with a cease and desist letter,
Jamie Yoak transferred title to her home – which she had previously purchased with her
own assets – to her parents, for no monetary consideration. By April 2011, the Regions
Bank account included approximately $140,000, almost all of which was directly or
indirectly from Jamie Yoak. On April 28, 2011, $100,000 was transferred out of the
account and used to purchase the CD at issue, in the name of Virginia Yoak. Plaintiff
also presented evidence that Virginia Yoak has willfully avoided service of a subpoena to
testify.
In her post-hearing brief, Jamie Yoak acknowledges that in April and May 2010,
she deposited approximately $71,000 in the Regions Bank money market account in
question, but she argues that the account and CD should not be seized because they are in

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At the hearing, Defendant objected to the admission of the deposition testimony
of Mr. Fernandez, on hearsay grounds. There is ample evidence in the record to support
that Jamie Yoak was actively avoiding service of process during the time period of Mr.
Fernandez’s deposition, and had been constructively served. For purposes of this motion,
however, the Court has not reviewed or relied on Mr. Fernandez’s deposition testimony.
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Virginia Yoak’s name. She relies upon statements she made in her deposition dated May
9, 2011, to the effect that her parents used the monthly interest from the CD to live on.
Jamie Yoak argues that Virginia Yoak’s due process rights would be violated if the
motion for prejudgment attachment were granted because Virginia Yoak was not served
with a copy of the motion.
On March 13, 2012, the Court granted Plaintiff leave to file an amended complaint
that adds Virginia Yoak, as well as James Yoak, who is Jamie Yoak’s father, as
Defendants and asserts a claim of fraudulent transfer against all three Yoak Defendants.
This claim alleges that Jamie Yoak and her parents fraudulently transferred assets of
Jamie Yoak, including assets realized from the porting scheme, to conceal them from
Plaintiff should Plaintiff obtain a money award in this lawsuit. For relief, Plaintiff seeks
an order declaring the transfers at issue void and allowing Plaintiff to satisfy any
judgment it receives against Jamie Yoak by levying execution on the allegedly concealed
assets.
DISCUSSION
Rule 64 of the Federal Rules of Civil Procedure provides for the prejudgment
seizure of property to secure satisfaction of a potential judgment, as provided under the
law of the state where the court sits. Missouri Supreme Court Rule 85.02, “Availability
of Attachment,” provides that “[a]fter the commencement of a civil action a party who
presents therein a claim by petition . . . may obtain a writ of attachment upon compliance
with this Rule 85.” Rule 85.03 requires an affidavit for a writ of attachment that shall

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“[s]tate the nature and amount of the claim,” and shall include “facts showing the
existence of one or more of the grounds for attachment set forth in Section 521.010 [of
Missouri Revised Statutes.]” Section 521.010, in turn, allows a plaintiff in a civil action
to obtain a prejudgment attachment against the property of a defendant in several
circumstances, including “[w]here the defendant has fraudulently conveyed or assigned
[her] property or effects, so as to hinder or delay [her] creditors.” Section 521.050
mandates the posting of a bond, in an amount double that asserted in the affidavit, as a
condition precedent to the issuance of a writ of attachment in all cases, with exceptions
not applicable here. Rule 85.08 sets forth the conditions of the bond.
Attachment provides an “anticipatory method to impound the assets of a defendant
to facilitate the collection of a judgment against him.” Am. Refractories Co. v.
Combustion Controls, 70 S.W.3d 660, 663 (Mo. Ct. App. 2002) (citation omitted).
“Attachment proceedings in Missouri are special and extraordinary proceedings and the
strict compliance with the statutory provisions is virtually essential.” State ex rel. Froidl
v. Tillman, 662 S.W.2d 907, 909 (Mo. Ct. App. 1983). “Missouri courts consistently
have held . . . that the statutory bond requirement is a mandatory condition to a plaintiff
maintaining an action in attachment.” Id; see also State ex rel. Webster Cnty. v.
Hutcherson, 199 S.W.3d 866, 875 (Mo. Ct. App. 2006).
The Court finds, based upon the testimony at the hearing and the other evidence
presented to the Court, that the circumstances of this case meet the above-quoted
fraudulent transfer condition of § 521.010. Plaintiff has satisfied the Court that the funds

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at issue held in Virginia Yoak’s name belong to Jamie Yoak; that Jamie Yoak concealed
these funds in the account and CD in her mother’s name in an effort to hide them from
Plaintiff; and that attachment is necessary so that the funds not be further concealed to
avoid their availability to satisfy a possible judgment in Plaintiff’s favor, as Jamie Yoak
has represented under penalty of perjury, she has no other funds with which to satisfy a
possible judgment in Plaintiff’s favor. Jamie Yoak’s reliance now on her deposition is
misplaced, as she was present at the hearing and chose not to testify.
The Court further concludes that as Virginia Yoak had actual knowledge of the
motion for prejudgment interest and of the hearing, her due process rights to notice and
an opportunity to be heard will not be violated by granting the motion.
The affidavit noted above filed by Plaintiff satisfies the state statutory requirement,
however, the Court cannot grant the motion for prejudgment attachment absent the
statutorily-required bond. See Hutcherson, 199 S.W.3d at 875.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff shall have ten days from the date of
this Order to deposit a bond with the Court, as required by Missouri law. Upon such
compliance, the motion for prejudgment attachment shall be granted. Absent such action,
the motion shall be denied.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 15th day of March, 2012
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