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United States of America v. Aletha M. Ensminger

February 26, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALETHA M. ENSMINGER, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

I. BACKGROUND

The Superior Court of California, County of Riverside entered default judgment in favor of the Student Loan Marketing Association (SLMA) against the defendant on May 9, 1994 in the amount of $72,398.57 ($62.385.35 in principal, $7,499.42 in interest, $2,261 in attorney's fees and $252 in costs). (See Dkt. No. 1 at p. 3.) On June 22, 1994, SMLA assigned the default judgment to the United States. (See id. at p. 2.) The balance on the judgment owed as of December 1, 2012 is $137,564.02 due to post-judgment interest according to the United States.

The judgment was registered in this court on May 2, 2003 by the United States. To enforce the judgment, the United States filed an application for writ of continuing garnishment (wages) which was served on defendant and Pacific Dental Services, Inc, Parkway Dental Group and Orthodontics. Pacific Dental Services, Inc. filed an acknowledgment of service and answer on April 27, 2012. (See Dkt. No. 5.)

On May 22, 2012, defendant, proceeding pro se, requested a hearing pursuant to 28 U.S.C. § 3205(c)(5).*fn1 Defendant states that she does not owe the money claimed by the default judgment. (See Dkt. No. 9 at p. 2.)

The United States filed a response to the request for a hearing on December 21, 2012. (See Dkt. No. 14.) Defendant, now acting through counsel, filed a reply on January 17, 2013. (See Dkt. No. 18.) The court heard argument on the application for writ of garnishment on January 24, 2013.

II. ANALYSIS

A. The Federal Debt Collections Procedure Act

The Federal Debt Collections Procedure Act ('FDCPA") provides that the United States can enforce a judgment through a garnishment. See 28 U.S.C. §§ 3202(a), 3205. The FDCPA defines a judgment as "a judgment, order or decree entered in favor of the United States in a court and arising from a civil or criminal proceeding regarding a debt." Id. § 3002(8). A debt is defined as:

(A) an amount that is owing to the United States on account of a direct loan, or loan insured or guaranteed, by the United States; or

(B) an amount that is owing to the United States on account of a fee, lease, rent, service, sale of real or personal property, overpayment, fine, assessment, penalty, restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United States, or other source of indebtedness to the United States, but is not owing under the terms of a contract originally entered into by only persons other than the United States.

28 U.S.C. § 3002(3).

Section 3205(a) of the FDCPA permits a court to issue a writ of garnishment against certain property of a debtor, including "nonexempt disposable earnings." The FDCPA defines disposable earnings as "earnings remaining after all deductions required by law have been withheld" and further defines "nonexempt disposable earnings" as "25 percent of disposable earnings." 28 U.S.C. § 3002(9). Under 28 U.S.C. § 3205(c), plaintiff must apply for the writ, provide the proper form of the writ, serve a request for an answer on defendant's employer, and serve the writ of the judgment debtor.

Section 3205(c)(5) permits the judgment debtor the opportunity to file written objections to the answer and request a hearing. The party objecting shall state grounds for the objection and bears the burden of ...


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