United States Of America v. Asare et al

Filing 283

ORDER re: 282 Scheduling Order. Accordingly, Judgment Debtor Asare's request to take discovery against the Government is DENIED. The hearing shall proceed as scheduled. SO ORDERED. (Signed by Judge Analisa Torres on 7/27/2022) (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Judgment Creditor,
v.

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 7/27/2022
15 Civ. 3556 (AT)

EMMANUEL O. ASARE and SPRINGFIELD
MEDICAL AESTHETIC PC,

ORDER

Judgment Debtors,
and
TD BANK, N.A.,
Garnishee.
ANALISA TORRES, District Judge:
On July 25, 2022, the Court scheduled a hearing for July 28, 2022, ECF No. 282, and
engaged in the following conversation with the parties via email. On July 25, 2022, the Court
requested the names of any witnesses the parties anticipated calling at the hearing scheduled for
July 28, 2022, ECF No. 282. In response, the Government noted that, pursuant to 28 U.S.C. §
3014(b)(2), the Judgment Debtors bear the burden of persuasion that the claimed exemptions
apply. However, it also stated that it may call Matthew Suhocki, a senior investigator in the
Financial Litigation Program, as a witness, “depending [on] what evidence [Judgment Debtor
Asare] presents” at the hearing. Judgment Debtors then wrote that Judgment Debtor Asare
would “be testifying on behalf of himself.” They also stated that “[t]his evening was the first
[Judgment Debtor] Asare heard of the [G]overnment having or intending to call an expert
witness.” They argued that they are entitled to discovery under the Federal Rules of Civil
Procedure “so [Judgment Debtor Asare] can defend his interests in his property.” Specifically,
they requested to take the deposition of Mr. Suhocki. In this email, Judgment Debtors cite two
out of circuit cases for the proposition that any proceeding under the Federal Debt Collection
Procedure Act “is a civil action.”1
On July 26, 2022, Court requested the Government to respond, and also sought
clarification regarding whether Judgment Debtor Springfield Medical Aesthetic PC was claiming
exemption because Judgment Debtor’s prior email focused on Judgment Debtor Asare and was
written in the singular. Judgment Debtors responded, stating “[o]nly [Judgment Debtor] Asare is
claiming exemptions.” The Government replied, first clarifying that Mr. Suhocki would testify
as a fact witness, and second stating that neither the Federal Rules of Civil Procedure nor the
Federal Debt Collection Procedures Act (the “FDCPA”) “permits the judgment debtor to take
Judgment Debtors cited “See United States v. Timilty, 148 F.3d 1, 5 (1st Cir.1998), U.S. v. Yielding, 657 F.3d 722,
726 (C.A.8 2011).”
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post-judgment discovery from the judgment creditor.” The Government also disclosed that it
would be seeking a surcharged of 10% of the debt balance pursuant to 28 U.S.C. § 3011.
The Court, having construed Judgment Debtor’s request to depose Mr. Suhocki as being
predicated on him testifying on as an expert witness then stated: “The Court finds that Mr.
Suhocki would be testifying, if at all, as a fact witness. Therefore, [Judgment Debtor] Asare’s
request to conduct a deposition because Mr. Suhocki would testify as an expert witness is
DENIED.” Judgment Debtors responded, writing that Judgment Debtor “Asare is not seeking
discovery for a proceeding under [New York Civil Practice Law & Rules §] 52.” They reiterated
that the garnishment proceeding is a civil proceeding and, therefore, that the Federal Rules of
Civil Procedure apply. Further, they stated that Mr. Suhocki being “a fact witness does not
reduce the need for or right to his deposition. This is civil proceeding where the Fed.R.Civ. P.
gives the Respondent a right to discovery.” However, Judgment Debtors do not cite any
authority to support their argument; rather, they accuse the Government of not citing authority
and of creating a “calculated surprise in the first order.”2
The Court has reviewed the parties’ arguments and finds that Judgment Debtors are not
entitled to discovery. The FDCPA provides that “[e]xcept as provided otherwise in this chapter,
the Federal Rules of Civil Procedure shall apply with respect to actions and proceedings under
this chapter.” 28 U.S.C. § 3003(f). For an action to claim on a debt, § 3015 allows the United
States to conduct into the financial condition of the debtor. Further, Federal Rule of Civil
Procedure 69, the applicable rule for the excitation of a money judgment, provides for discovery,
however, the discovery is limited to that “in aid of the judgment or execution.” Specifically, it
states that “the judgment creditor . . . may obtain discovery from any person—including the
judgment debtor—as provided in these rules or by the procedure of the state where the court is
located.” Fed. R. Civ. P. 69. Nowhere does the statute or rules provide for discovery against the
judgment creditor by the judgment debtor. See United States v. Badoolah, No. 12 Cr. 774, 2021
WL 3675147, at *4 (E.D.N.Y. Aug. 19, 2021) (finding that the FDCPA permits “the government
. . . [to] invoke the Federal Rules of Civil Procedure to seek discovery against a defendant who
owes” against a judgment) (collecting cases).
Accordingly, Judgment Debtor Asare’s request to take discovery against the Government
is DENIED. The hearing shall proceed as scheduled.
SO ORDERED.
Dated: July 27, 2022
New York, New York

Judgment Debtors state for the first time that there are creditors with “senior [liens] to the Government’s liens,”
and that the Government failed to serve or name these “senior secured creditors . . . in this proceeding which affects
their property interests.” They also attached two UCC Financing Statements for Judgment Debtor Springfield
Medical Aesthetic, PC, one for secured party U.S. Small Business Administration dated June 11, 2020, and one for
secured party First Corporate Solutions dated August 4, 2021. Finally, they cite 11 U.S.C. § 363(c)(2) and (e) for
the proposition that “[o]rdinarily the law gives senior creditors an opportunity to protect their interests.” However,
they cite no such requirement under the FDCPA. Therefore, this argument is without merit.
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