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United States of America v. Michael H. Obrowski

February 9, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MICHAEL H. OBROWSKI, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's ex parteApplication and Declaration for Order and Appearance of Judgment Debtor Michael H. Obrowski (the "Application").*fn1 (Dkt. No. 2.) For the reasons stated below, the undersigned denies plaintiff's Application without prejudice on the grounds that the Application does not conform with the requirements of Federal Rule of Civil Procedure 69 and California Code of Civil Procedure § 708.160.

On December 10, 2010, plaintiff registered with this court an Amended Judgment in an amount of $27,488.95, which was entered on December 27, 2006, by the California Superior Court for the County of San Bernardino in the matter of Student Loan Marketing Association By and Through Its Servicing Agent Sallie Mae Inc. v. Obrowski, Case No. RCCI083582. (See Amended Judgment, attached to Registration of Judgment, Dkt. No. 1.) On February 3, 2011, plaintiff filed the ex parte Application that is the subject of this order.*fn2

Plaintiff requests that defendant appear personally for a judgment debtor examination and be required to bring with him documents responsive to 20 requests for production of documents.*fn3

Pursuant to Federal Rule of Civil Procedure 69(a)(1), "[t]he procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies." In turn, California Code of Civil Procedure § 708.160 provides, in part:

(a) Except as otherwise provided in this section, the proper court for examination of a person under this article is the court in which the money judgment is entered.

(b) A person sought to be examined may not be required to attend an examination before a court located outside the county in which the person resides or has a place of business unless the distance from the person's place of residence or place of business to the place of examination is less than 150 miles.

(c) If a person sought to be examined does not reside or have a place of business in the county where the judgment is entered, the superior court in the county where the person resides or has a place of business is a proper court for examination of the person.

Cal. Civ. Proc. Code §§ 708.160(a)-(c). Section 708.160(d) further provides, in part:

If the judgment creditor seeks an examination of a person before a court other than the court in which the judgment is entered, the judgment creditor shall file an application that shall include all of the following:

(1) An abstract of judgment in the form prescribed by [California Code of Civil Procedure] Section 674.

(2) An affidavit in support of the application stating the place of residence or place of business of the person sought to be examined. .

Id. §§ 708.160(d)(1)-(2).

Here, the judgment at issue was entered in the San Bernardino County Superior Court, and plaintiff seeks to examine defendant in the United States District Court for the Eastern District of California, in Sacramento, California. Accordingly, plaintiff was required to file an application for the examination of the judgment debtor that conforms to the requirements of California Code of Civil Procedure ยง 708.160(d). ...


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