Jensen et al v. Jones & Co., L.P. et al

Filing 2

ORDER GRANTING APPLICATION FOR WRIT OF GARNISHMENT re 1 Application for Writ of Garnishment, filed by Mary Jo Jensen, Preben Jensen. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

PREBEN V. JENSEN and MARY J.
JENSEN,

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Plaintiffs/Garnishors,
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vs.
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BANK OF AMERICA
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CORPORATION, N.A., and EDWARD §
D. JONES & CO., L.P.,
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Defendants/Garnishees,
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No. SA:14-CV-784-DAE

ORDER GRANTING APPLICATION FOR WRIT OF GARNISHMENT
On September 4, 2014, Plaintiffs/Garnishors Preben V. Jensen and
Mary Jo Jensen (“Plaintiffs”) filed an Application for Writ of Garnishment. (Dkt.
# 1.) After careful consideration, the Court GRANTS Plaintiffs’ Motion.
ANALYSIS
Plaintiffs have filed the instant Writ of Garnishment pursuant to
Federal Rules of Civil Procedure 64 and 69, Texas Rule of Civil Procedure 658,
and Texas Civil Practices and Remedies Code 63 to enforce a Judgment entered
against Defendant Judy Rolligner in Case No. 5:13-CV-1095-DAE (the
“underlying action”). (See Dkt. # 1 ¶ 1.)

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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 writs of garnishment is § 63.001
of the Texas Civil Practice and Remedies Code. Section 63.001(3) provides:
A writ of garnishment is available if:
...
(3) a plaintiff has a valid subsisting judgment and makes an affidavit
stating that, within the plaintiff’s knowledge, the defendant does not
possess property in Texas subject to execution sufficient to satisfy the
judgment.
Tex. Civ. Prac. & Rem. Code § 63.001(3).
Here, in the underlying action, this clerk of the court entered a Default
Judgment against Defendant Judy Rollinger in the amount of $96,000, plus costs
and pre- and post- judgment interest. (Dkt. # 1, Ex. 1.) Plaintiffs have attached a
copy of the Judgment against Defendant Rollinger in the underlying action, and
have attached the affidavit of Plaintiff Preben V. Jensen who avers that the
Judgment is valid and subsisting and remains unsatisfied. (Id., Ex. 2 ¶ 5.) Preben

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Jensen also avers that, based upon Rollinger’s representations during the
underlying litigation, Rollinger does not possess property in Texas that is subject to
execution sufficient to satisfy the unpaid debt. (Id. ¶ 6.) Finally, in his affidavit,
Preben Jensen states that this garnishment is not sought to injure or harass
Rollinger or any garnishees in this matter. (Id., ¶ 7.)
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 an affidavit attesting to the requirements necessary for the
availability of a writ of garnishment under § 63.001(3).
Finding that Plaintiffs have met all the requirements of § 63.001(3) of
the Texas Civil Practice and Remedies Code, the Court concludes that Plaintiffs
have complied with the state’s requirements for issuance of a writ of garnishment
and are therefore entitled to such relief.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Application for Writ of
Garnishment (Dkt. #1) is GRANTED.
The Clerk of the Court shall issue Writs of Garnishment that
command Garnishees Edward D. Jones & Co., L.P. and Bank of America, N.A., to
appear as required by law and answer as to what property they have of Judgment
Debtor Judy Rollinger, where that property was when the writ was served, and
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what other persons, if any, within the Garnishee’s knowledge, have effects of the
Judgment Debtor.
The maximum value of the property or indebtedness that may be
garnished may not exceed the amounts award in the Judgment—$96,000, plus
costs and pre- and post- judgment interest.
IT IS SO ORDERED.
DATED: San Antonio, Texas, September 22, 2014.

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