Opinion
Civil No. 89-1740, Section M
January 27, 2003
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER TO SHOW CAUSE
This matter came for hearing on a Motion to Examine Judgment Debtor brought by plaintiff, the Federal Trade Commission. The Federal Trade Commission is a judgment creditor of defendants National Business Consultants, Inc. and Robert Namer, jointly and severally, in the sum of $3,019,377.00, by virtue of a judgment entered on November 8, 1991.
The Federal Trade Commission, pursuant to the Federal Debt Collection Procedure Act, 28 U.S.C. § 3001, et seq., Federal Rule of Civil Procedure 69, and Louisiana law, conducted an examination of the judgment debtor on November 20, 2002. The proceedings were interrupted by Robert Namer, who, in response to questions about a safety deposit box, pled the Fifth Amendment and requested a continuance to seek legal counsel.
The matter was reconvened on January 8, 2003 with counsel, Justin Zitler, Esq., present representing Robert Namer. Objections by counsel to the further examination of the Judgment Debtor were overruled, as was counsel's motion for immediate appeal. Then, Robert Namer's motion for recusal of the judge (made in proper person and only "handed to the Court" by counsel) was taken under advisement. That motion, having been considered by the Court, is DENIED.
The Court, having considered the record in this matter together with the testimony adduced at the various hearings, makes the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
Robert Namer testified under oath to the following:
1. Robert Namer is self-employed as a consultant for R. Namer Management, Inc. and does consulting, broadcasting, editorials, news, and investigative reporting. (T. p. 38-39).
2. Robert Namer was the general manager of WASO radio station until he began campaigning for elected office. He also broadcasts on WASO, by virtue of an agreement between WASO and Voice of America, Inc. (T. p. 39).
3. Robert Namer's wife, Barbara Namer is the sole owner of Voice of America, Inc., located at 3313 Kingman Street, Metairie, Louisiana. (T. p. 42). Robert Namer is the president of Voice of America, Inc. (T. p. 41-42). Voice of America receives income from consulting fees, advertising fees, and revenues for professional services. (T. p. 65). Voice of America also designs and sells internet sites for politicians. (T. p. 66). Robert Namer has given consulting advice to political candidates who in lieu of payment to Robert Namer, bought radio time on WASO. (T. p. 80-81). Voice of America receives 25% of the "gross profit" of WASO, an arrangement negotiated with WASO by Robert Namer. (T. p. 50-52). Barbara Namer does not work for Voice of America, but has a full-time job with Jefferson Parish. (T. p. 56-57).
4. America First Communications, Inc. holds the license to operate WASO and America First Communications, Inc. is synonymous with WASO. (T. p. 47-48). Namer, Inc. is part owner (40%) of America First Communications, Inc. (WASO) (T. p. 44-47).
5. Namer, Inc. is wholly owned in equal shares by Robert Namer's five children. (T. p. 7, 44, 112-113).
6. Namer, Inc. did not purchase its stock in America First Communications, Inc., but rather received stock in exchange for its management services. (T. p. 62).
7. Namer, Inc. also owns the property located at 3313 Kingman Street, which is leased by American First Communications, Inc., Voice of America, Inc. and/or WASO. One of the Namer related entities has paid $11,000 per month in rent for the past ten years. (T. p. 117-118).
8. Namer, Inc. acquired this property on approximately June 20, 2001, making a $20,000 down payment, which was paid by Robert Namer and his wife. (T. p. 113-116).
9. That arrangement was negotiated with American First Communications, Inc. by Robert Namer. (T. p. 51).
10. America First Communications, Inc.'s (WASO's) sole source of revenue is advertising. (T. p. 53). Barbara Namer is a signatory on WASO's checking accounts and is the secretary of American First Communications, Inc. (T. p. 55, 57).
13. Robert Namer has not been paid for his work by American First Communications, Inc. or Namer, Inc. because "it would not be physically profitably for [him] to work for anything." (T. p. 63).
14. Robert Namer was a candidate for a federal office. (T. p. 101).
15. Pursuant to the Federal Election Commission forms, he loaned $31,500 to Friends of Robert Namer. He made an in kind contribution of $8,000, in the form of a down payment on a recreational vehicle to be used by the campaign. He personally financed the remaining balance of $33,000. (T. p. 102-109).
16. Friends of Robert Namer made cash disbursements to America First Communications totaling $14,000 as payment for Robert Namer's radio show, which could be considered advertising. The treasurer of Friends of Robert Namer negotiated this price with the WASO station manager, who was Robert Namer. (T. p. 108-109).
II. CONCLUSIONS OF LAW
1. The Federal Trade Commission is a judgment creditor of Robert Namer and National Business Consultants, Inc. by virtue of the unpaid judgment entered into the record of this matter in the amount of $3,019,377.00.
2. The Court has subject matter jurisdiction because the unpaid judgment owed to the Federal Trade Commission is a "debt" owed to the United States as defined by the Federal Debt Collection Procedure Act, 28 U.S.C. § 3001, et seq.
3. Discovery of a judgment debtor's assets is conducted routinely under the Federal Rules of Civil Procedure.
4. Federal Rule of Civil Procedure 69(a) provides that:
In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held.
5. The scope of post-judgment discovery is broad to permit a judgment creditor to discover assets upon which execution may be made. Federal Deposit Insurance Corp. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995).
6. Under the Federal Debt Collection Procedure Act, a "[t]ransfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance." 28 U.S.C. § 3301 (6).
7. A transfer is fraudulent if the debtor makes the transfer or incurs the obligation with actual intent to hinder, delay, or defraud a creditor. 28 U.S.C. § 3304 (b).
8. In determining actual intent, consideration may be given to whether the transfer or obligation was to an insider or the debtor retained possession or control of the property transferred after the transfer. 28 U.S.C. § 3304 (b)(2).
9. The Federal Debt Collection Procedure Act provides that: "The court may at any time on its own initiative or the motion of any interested person, . . . make an order denying, limiting, conditioning, regulating, extending, or modifying the use of any enforcement procedure under this chapter." 28 U.S.C. § 3013.
Considering the foregoing findings of fact and conclusions of law, the Court finds that Robert Namer has made use of Namer, Inc., America First Communications, Inc. and Voice of America for the calculated purpose of frustrating the Federal Trade Commission from enforcing the judgment in its favor.
Further, the Court finds that Robert Namer has, accordingly, violated the Federal Debt Collection Procedure Act by purposefully transferring income and assets to Namer, Inc., America First Communications, Inc., Voice of America, Inc., and by incurring debt and making loans to Friends of Robert Namer calculated to hinder, delay and avoid collection of the judgment against him. The actions of Robert Namer are redressable under the Federal Debt Collection Procedure Act and/or Louisiana law and the Court has the plenary authority to add, as judgment-debtors, the corporations involved in these schemes.
Accordingly, IT IS ORDERED that Namer, Inc., America First Communications, Inc., Voice of America, Inc. and Friends of Robert Namer appear and show cause on the 11th day of March, 2003 at 9:30 a.m., at the U.S. Courthouse, 500 Camp Street, New Orleans, Louisiana, Room C102 why they should not be named as parties to this matter and cast as judgment debtors under the Federal Debt Collection Procedure Act and/or Louisiana law.
IT IS FURTHER ORDERED that a copy of this Order shall be served by the U.S. Marshal on Namer, Inc., America First Communications, Inc., Voice of America, Inc. and Friends of Robert Namer.
U.S. Attorney's Office to provide Marshal with appropriate addresses.