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Michael D. Bremser v. Ryan Michael Sweeney

March 2, 2012

MICHAEL D. BREMSER,
PLAINTIFF,
v.
RYAN MICHAEL SWEENEY,
DEFENDANT.



ORDER PERMITTING SERVICE OF BANK LEVY BY REGISTERED PROCESS SERVER

RELEVANT PROCEDURAL BACKGROUND

Bankruptcy Proceeding

On September 1, 2010, United States Bankruptcy Judge Whitney Rimel of the United States Bankruptcy Court for the Eastern District of California, Fresno Division, issued an Order and Judgment Following Court Trial in the matter entitled In re: Ryan Michael Sweeney and Melissa Ann Sweeney, Bankruptcy Case No. 08-17706 WR. Specifically, Plaintiff and Creditor Michael D. Bremser ("Bremser") was awarded a judgment against Defendant and Debtor Ryan Michael Sweeney ("Sweeney") in the amount of $510,513.00 plus interest. (Doc. 1 at 2-4.)

On December 22, 2011, an Acknowledgment of Assignment of Judgment was filed in the bankruptcy proceeding, whereby Bremser assigned all rights, title and interest in the aforementioned judgment to Mandy Power ("Power"). As assignee, Power was authorized to recover, compromise, enforce and settle the judgment. (Doc. 1 at 5-6.)

Instant Proceeding

On January 24, 2012, a Certification of Judgment for Registration in Another District was filed with this Court, accompanied by copies of the order and judgment rendered in the bankruptcy court, as referenced above. (Doc. 1 at 1.) That same date, assignee of record Power filed a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest with this Court. (Doc. 2.)

On January 26, 2012, the Court issued a Writ of Execution identifying Power as assignee of record and Sweeney as judgment debtor. The judgment, plus the accumulated pre-judgment interest, was recorded as $730,580.23, and the interest after judgment was $2,632.62, for a total sum of $733,212.85. (Doc. 3.)

Thereafter, on February 27, 2012, Power filed an ex parte application and Motion to Permit Service of Bank Levy by Registered Process Server. (Docs. 4 & 6.) Those documents were accompanied by an Application and Order for Appearance and Examination. (Doc. 5.)

DISCUSSION

The execution of final judgments is governed by Rule 69(a) of the Federal Rules of Civil Procedure. It provides as follows:

(1) Money Judgment; Applicable Procedure. A money judgment is enforced by writ of execution, unless the court directs otherwise. The 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.

(2) Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person - including the judgment debtor - as provided in these rules or by the procedure of the state where the court is located.

Fed. R. Civ. P. 69(a). Pursuant to Rule 69(a), post-judgment enforcement proceedings must comply with California law. Credit Suisse v. U.S. Dist. Court for Cent. Dist. of California, 130 F.3d 1342, 1344 (9th Cir. 1997); Hilao v. Estate of Marcos, 95 F.3d 848, 853 (9th Cir. 1996).

Under California law, a registered process server may levy under a writ of execution on property specified in California Code of Civil Procedure section 699.080(a). A registered process server is a person registered as a process server pursuant to the California Business and Professions Code. See Cal. Civ. Proc. Code § 481.250, citing Cal. Bus. & Prof. Code §§ 22350-22360. This authority is limited to cases where the levy does not involve the ...


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