Summary
denying request for hearing when debtor "failed to identify any deficiency in the Government's compliance with the statutory requirements"
Summary of this case from United States v. WacktOpinion
C18-78 TSZ
01-26-2018
UNITED STATES OF AMERICA, Plaintiff, v. TERRILL D. BEEBE, Defendant, v. VANGUARD FIDUCIARY TRUST COMPANY, INC., Garnishee.
ORDER
THIS MATTER comes before the Court on Defendant/Judgment Debtor Terrill D. Beebe's pro se Request for Hearing, docket no. 7, on the Writ of Continuing Garnishment issued against Vanguard Fiduciary Trust Company, Inc., docket no. 3. For the reasons stated herein, Mr. Beebe's request for hearing is DENIED. Background
On December 7, 1998, judgment was entered against Mr. Beebe in the United States District Court for the Western District of Washington in Seattle. United States v. Terrill D. Beebe, No. 2:98-CV-0527, docket no. 14. The judgment awarded $7,111,699.92 in Criminal Restitution and a $100 Special Assessment. Id. As of December 6, 2017, a balance of $7,105,263.84 remains. Writ of Continuing Garnishment, docket no. 3.
A copy of the judgment is attached as Exhibit 1 to the Declaration of Dawn Fernandez in Support of Application for a Writ of Garnishment, docket no. 1-1, case no. 2:17-mc-00167-RSL. --------
On December 8, 2017, the Government filed an Application for Writ of Garnishment pursuant to 28 U.S.C. § 3205(b)(1), docket no. 1. The Court issued the Writ of Garnishment on December 12, 2017, docket no 3, and that same day the Government served on Mr. Beebe via first class mail a copy of the application, writ, notice of garnishment, and instructions to the judgment debtor. See docket nos. 4, 5. On January 16, 2018, Mr. Beebe filed a Request for Hearing Form, docket no. 7, raising two contentions. First, Mr. Beebe asserts that the property the Government is taking is exempt. Mr. Beebe did not attach a Claim for Exemption Form with his request for hearing or otherwise identify an exemption that applies to this case. Second, Mr. Beebe asserts that the Government failed to comply with the statutory requirement for issuance of the writ because it "has not proven that Vanguard's policies/procedures mandate following the writ of garnishment[.]" Discussion
The Federal Debt Collection Procedures Act ("FDCPA"), 28 U.S.C. § 3001 et seq., provides "the exclusive civil procedures" for the United States to obtain satisfaction of a judgment in a criminal proceeding that imposes a fine assessment, penalty or restitution in favor of the United States. See 28 U.S.C. § 3001(a); see also United States v. Duran, 701 F.3d 912, 915 (11th Cir. 2012). The FDCPA provides the United States with several mechanisms to satisfy a judgment, one of which is a writ of garnishment. 28 U.S.C. §§ 3202, 3205. Pursuant to § 3205, a "court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor." 28 U.S.C. § 3205(a).
Upon commencement of an action to recover property under the FDCPA, the Government must prepare, and the clerk of court must issue, notice to the judgment debtor following substantially the form set forth in 28 U.S.C. § 3202(b). 28 U.S.C. § 3202(b); see also United States v. Tripodis, No. 1:01-cr-109-WSD, 2016 WL 5389142, at *2 (N.D. Ga. Sept. 27, 2016) (quoting United States v. Peters, 783 F.3d 1361, 1363 (11th Cir. 2015)). The Government must then serve the judgment debtor with the notice, the writ issued by the Court, and the Government's application therefor, together with instructions for objecting to the garnishee's answer and for obtaining a hearing. 28 U.S.C. §§ 3202(c), 3205(c)(3).
Thereafter, the judgment debtor has two opportunities to object and obtain a hearing. The judgment debtor (1) may move to quash the writ by requesting a hearing within 20 days of receiving the notice required by § 3202(b), 28 U.S.C. § 3202(d); or (2) may object to the garnishee's answer and request a hearing thereon within 20 days of receipt of the garnishee's answer, 28 U.S.C. § 3205(c)(5). "Although the [FDCPA] states that the court 'shall hold a hearing' at the debtor's request, courts have denied a hearing where the debtor did not object based on one of the issues specified in 28 U.S.C. § 3202(d), where the objection is plainly without merit, or where the objection was simply a matter of statutory interpretation." United States v. Bruneau, No. CR-09-8098-1-PCT-FJM (LOA), 2013 WL 6409518, at *3 (D. Ariz. Oct. 23, 2013) (quoting United States v. Miller, 588 F. Supp. 2d 789, 797 (W.D. Mich. 2008)); see also United States v. Marchand, No. 2:15-mc-3719-MHT-SRW, 2017 WL 2857722, at *2 (M.D. Ala. May 4, 2017) (noting that a "defendant is not entitled to a hearing where he fails to show that the government did not comply with a statutory requirement, or fails to present a colorable claimed exemption").
Here, a hearing is unnecessary for two reasons. First, a hearing is not justified under § 3205(c)(5) because Mr. Beebe has not objected to the garnishee's answer. Second, Mr. Beebe has not identified any colorable claim for exemption that might apply in this case and has otherwise failed to identify any deficiency in the Government's compliance with the statutory requirements. Tripodis, 2016 WL 5389142, at *2. Defendant does not raise any of the issues enumerated in 28 U.S.C. § 3202(d) sufficient to warrant a hearing. Likewise, Defendant's statement that the Government "has not proven that Vanguard's policies/procedures mandate following the writ of garnishment" is without merit and inconsistent with the information submitted by Vanguard in answering the Writ of Continuing Garnishment. See Form of Answer of the Garnishee, docket no. 6 (detailing the policies and procedures the Government must follow to collect the proceeds from Defendant's Vanguard account). Thus, Defendant's request for a hearing is denied.
IT IS SO ORDERED.
Dated this 26th day of January, 2018.
/s/_________
Thomas S. Zilly
United States District Judge