United States of America v. Delgado
Filing
12
MEMORANDUM OPINION AND ORDER denying without prejudice 11 Motion for Installment Payment Order. (Ordered by Judge Jane J Boyle on 8/26/2015) (twd)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ANGEL DELGADO,
Defendant.
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CIVIL ACTION NO. 3:12-CV-1333-B
MEMORANDUM OPINION AND ORDER
Before the Court is the United States of America’s Motion for Installment Payment Order,
filed August 24, 2015. Doc. 11. The United States requests that the Court enter an order under 28
U.S.C. § 2304 requiring Defendant to make monthly installment payments to satisfy the default
judgment entered against him on July 25, 2012. See Doc. 9, Order Granting Mot. for Default J. For
the following reasons, the Court DENIES the motion without prejudice to the refiling of the same.
Section 2304 authorizes a court to order installment payments upon motion by the United
States when a judgment debtor “is receiving or will receive substantial nonexempt disposable
earnings from self employment that are not subject to garnishment,” or “is diverting or concealing
substantial earnings from any source, or property received in lieu of earnings.” 28 U.S.C. § 2304(a).
There is a method for calculating the amount of such installment payments under Section 2304,
which is as follows:
“Nonexempt disposable earnings” is defined as twenty-five percent of disposable
earnings. 28 U.S.C. § 3002(9). “ ‘Disposable earnings' means that part of earnings
remaining after all deductions required by law have been withheld.” 28 U.S.C. §
3002(5). Finally, “ ‘Earnings' means compensation paid or payable for personal
services, whether denominated as wages, salary, commission, bonus, or otherwise, and
includes periodic payments pursuant to a pension or retirement program.” 28 U.S.C.
§ 3002(6). Therefore, to determine the proper monthly installment amounts, the
proper calculation is to determine the debtor's total income for a year, less federal
income tax withholdings. Then, take twenty-five percent of that number and divide
it by twelve in order to calculate the amount of each monthly payment installment.
Davis v. United States, No. 06-0158, 2011 WL 4712077, at *2 (W.D. La. Oct. 6, 2011), aff’d, 479 F.
App’x 601 (5th Cir. 2012). In its Motion, the United States requests installment payments of $500
per month, but it is not evident from the Motion how the United States arrived at this figure. Most
importantly, the Motion does not indicate that the United States calculated the amount using the
required method. The Court will therefore DENY the United States’ Motion for Installment
Payment Order at this time, but the Government may file another such motion that includes the
proper installment amount calculation and supporting documentation.
SO ORDERED.
SIGNED: August 26, 2015.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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