Jensen et al v. Rollinger et al
Filing
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ORDER GRANTING 7 Application for Pre-Judgment Writ of Garnishment. Signed by Judge David A. Ezra. (aej)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
PREBEN V. JENSEN and MARY J.
JENSEN,
Plaintiffs,
vs.
JUDY ROLLINGER and RICK
KNIGHT,
Defendants.
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No. SA:13-CV-1095-DAE
ORDER GRANTING APPLICATION FOR PRE-JUDGMENT WRIT OF
GARNISHMENT
On September 8, 2014, the Court heard oral argument on an
Application for Pre-Judgment Writ of Garnishment (Dkt. # 7) filed by Plaintiffs
Preben and Mary Jo Jensen (“Plaintiffs”). Pursuant to Local Rule 7(h), the Court
finds this matter suitable for disposition without a hearing. After careful
consideration, the Court GRANTS Plaintiffs’ Motion.
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BACKGROUND
On December 4, 2013, Plaintiffs filed a Verified Complaint in
Admiralty against Defendants, requesting issue of a writ of maritime attachment
and garnishment pursuant to Rule B of the Supplemental Rules of Certain
Admiralty and Maritime Claims. (Dkt. # 1 ¶ 4.)
On December 10, 2013, this Court, determining that the conditions of
Rule B appear to exist, authorized process of attachment and garnishment, and
ordered the Clerk of the Court to immediately issue a process of Maritime
Attachment and Garnishment for Defendant’s tangible or intangible property as
described in the complaint up to the amount sued upon in the verified complaint—
$96,000. (Dkt. # 3.) Garnishees Edward D. Jones & Co., L.P., and Bank of
America, N.A., both filed answers to the writs of garnishment. (Dkt. ## 5, 6.)
Garnishee Edward D. Jones & Co., L.P., responded that it is in the possession of
four accounts: (1) a Single Brokerage Account held for the benefit of Judy
Rollinger, with a total account value of $11,081.13, all in cash; (2) a Traditional
Individual Retirement Account (IRA) held for the benefit of Judy Rollinger, with
an estimated market value of $54,584.49 comprised of shares of two mutual funds
and $270.89 in cash; (3) a Traditional Individual Retirement Account (IRA) held
for the benefit of Judy Rollinger, with an estimated market value of $369,793.59
comprised of shares of one mutual fund, shares of two unit trusts, and $6,238.13 in
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cash; and (4) a Roth Individual Retirement Account (IRA) held for the benefit of
Judy Rollinger, with an estimated market value of $12,590.47 comprised of shares
of three mutual funds and #$308.13 in cash. (Dkt. # 5.) Following a reasonable
search, Garnishee Edward D. Jones & Co., L.P., did not locate any accounts for
Rick Knight. (Id.)
Garnishee Bank of America, N.A., responded that it is in possession
of safe deposit boxes belonging to Judy Rollinger and it is “aware that Bank of
America, N.A.,” is indebted to Rick Knight, but is not aware of any other entity
possessing effects belonging to Rick Knight. (Dkt. # 6.)
Plaintiffs have filed the instant Application for Pre-Judgment Writ of
Garnishment. (Dkt. # 7.) Plaintiffs request such relief, stating that if admiralty
jurisdiction in this matter is defeated, the garnishments already made on
Defendants’ funds would be vacated although the Court would still have diversity
jurisdiction. (Id. ¶ 3.) Because Defendants currently reside in Panama, Plaintiffs
are concerned that if the garnished funds are vacated they will be left with no
avenue of relief against Defendants. (Id.) Therefore, the Plaintiff request that the
Court enter a Pre-Judgment Writ of Garnishment attaching Defendants’ tangible or
intangible property or any other funds held or owed by Garnishees Edward D.
Jones & Co., L.P. and Bank of America, N.A., up to and including the principal
amount of $96,000.00, plus accrued and accruing interest. (Id. at 4.)
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Defendants did not respond to Plaintiffs’ Application.1
ANALYSIS
Rule 64 of the Federal Rules of Civil Procedure provides:
(a) Remedies Under State Law—In General. At the
commencement of and throughout an action, every remedy is
available that, under the law of the state where the court is located,
provides for seizing a person or property to secure satisfaction of
the potential judgment. But a federal statute governs to the extent
it applies.
(b) Specific Kinds of Remedies. The remedies available under this
rule include the following—however designated and regardless of
whether state procedure requires an independent action: . . .
garnishment . . . and other corresponding or equivalent remedies.
Fed. R. Civ. P. 64. The Texas statute governing pre-judgment writs of
garnishment is § 63.001(2) of the Texas Civil Practice and Remedies Code.
Section 63.001 provides:
A writ of garnishment is available if:
(2) a plaintiff sues for a debt and makes an affidavit stating that:
(A) the debt is just, due, and unpaid;
(B) within the plaintiff’s knowledge, the defendant does not
possess property in Texas subject to execution sufficient to
satisfy the debt; and
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Defendants Rollinger and Knight have made a restricted appearance pursuant to
Supplemental Rule E(8) by filing their Motion to Vacate Writs of Attachment
(Dkt. # 12). Because such restricted appearance “is not an appearance for the
purposes of any other claim,” Defendants have not made an appearance and, thus,
have not responded to the instant motion.
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(C) the garnishment is not sought to injure the defendant or the
garnishee.
Tex. Civ. Prac. & Rem. Code 63.001(2).
Here, Plaintiffs have filed a verified complaint, suing for repayment of
a debt in the amount of $96,000 resulting from an unpaid promissory note whereby
Plaintiffs agreed to lend Defendants $100,800.00, and Defendants agreed to repay
the debt at a rate of $4,200.00 per month. After failing to make monthly payments
since February 2013, a sum of $96,000.00 remains unpaid on the debt. Plaintiffs
have attached the affidavit of Preben Jensen stating the same.
Plaintiffs also aver that, to their knowledge, Defendants do not
possess property in Texas that is subject to execution sufficient to satisfy the
unpaid debt. In support, Plaintiffs attach the affidavit of Gregory Singer, an
attorney at Plaintiffs’ law firm. (Id., Ex. A. at 3.) Singer avers that in a good faith
effort to locate property owned by Defendants, he has searched Texas UCC filings,
public land records, and the LexisNexis Asset Report database. (Id.) According to
Singer, the searches have revealed only real property located at 17710 Mantana
Drive, Spring, Texas, which Singer asserts “is suspected to be a homestead, and
therefore not subject to execution.” (Id. at 4.)
Finally, in his affidavit, Plaintiff Preben Jensen states that this
garnishment is not sought to injure Defendants or any garnishees in this matter.
(Id., Ex. A at 6.)
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Texas case law requires that the Texas garnishment statute be “strictly
construe[d].” Varner v. Koons, 888 S.W.2d 511, 512 (Tex. App. 1994). Here,
Plaintiffs have attached affidavits attesting to the three requirements necessary for
the availability of a pre-judgment writ of garnishment under § 61.003(2).
Texas Rule of Civil Procedure 658 applies to writs of garnishment and
provides:
No writ [of garnishment] shall issue before final judgment except
upon written order of the court after a hearing, which may be ex parte.
The court in its order granting the application shall make specific
findings of facts to support the statutory grounds found to exist, and
shall specific the maximum value of property or indebtedness that
may be garnished and the amount of bond required of plaintiff. Such
bond shall be in an amount which, in the opinion of the court, shall
adequately compensate defendant in the event plaintiff fails to
prosecute his suit to effect, and pay all damages and costs as shall be
adjudged against him for wrongfully suing out the writ of
garnishment.
Tex. R. Civ. P. 658.
Finding that Plaintiffs have met all the requirements of § 63.001(2) of
the Texas Civil Practice and Remedies Code, and with no response by Defendants
arguing otherwise, the Court concludes that Plaintiffs have complied with the
state’s requirements for pre-judgment writ of garnishment and are therefore
entitled to such relief.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ Application for Pre-judgment
Writ of Garnishment (Dkt. #7) is GRANTED. The Clerk of the Court shall issue a
Writ of Garnishment attaching Defendants’ tangible or intangible property or any
other funds held or owed by Garnishees Edward D. Jones & Co., L.P. and Bank of
America, N.A., up to and including the principal amount of $96,000.00, plus
accrued and accruing interest.
It is further ordered that Plaintiffs shall submit a bond in the amount
of $2,000 upon issuance of the writ, which, in the opinion of the court, shall
adequately compensate defendants in the event plaintiffs fail to prosecute their suit
to effect, and pay all damages and costs as shall be adjudged against them for
wrongfully suing out the writ of garnishment
IT IS SO ORDERED.
DATED: San Antonio, Texas, September 11, 2014.
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