United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING REQUEST FOR
FINAL GARNISHMENT ORDER ORDER REQUIRING THE UNITED STATES TO
SERVE A COPY OF THE FINDINGS AND RECOMMENDATIONS (DOC. NO.
13) FOURTEEN-DAY DEADLINE
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.
pending before the Court is the United States' request
for findings and recommendations regarding issuance of a
final garnishment order (the “Application”)
against the non-exempt property and accounts that defendant
Oscar Diaz Landa (“Defendant”) maintains with
garnishee Wells Fargo Bank, N.A. (the
“Garnishee”). (Doc. No. 13.) The matter was
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302(c)(7).
January 17, 2017, pursuant to a plea agreement with the
United States, Defendant entered a plea of guilty to count
one of an indictment charging him with conspiracy to commit
mail fraud. United States v. Rivas, et al., No.
1:15-cr-00233-DAD-BAM, Doc. No. 118. On May 3, 2017, the
Court sentenced Defendant to six months of custody and
thirty-six months of supervised release and further ordered
Defendant to pay a statutory assessment of $100.00 and $257,
325.90 in restitution. Id. at Doc. No. 150.
attempt to collect the restitution and special assessment
owed, the United States filed an application for a writ of
continuing garnishment against any bank, stock, or brokerage
accounts in the possession, custody, or control of Wells
Fargo Bank, N.A. in which Defendant has an interest. (Doc.
No. 1.) The Clerk of Court issued the writ of garnishment on
April 9, 2018. (Doc. No. 2.) The United States subsequently
served the Garnishee, Defendant, and his spouse Julia
Gonzalez Luna with copies of the writ and related documents.
(Doc. Nos. 3, 5, 9.) The documents served on Defendant and
his spouse advised them, among other things, of their rights
to claim exemptions to garnishment and request a hearing on
their claims, request a hearing to quash the writ, and/or
object to the Garnishee's answer of garnishee (the
“Answer”) and request a hearing thereon. (Doc.
Nos. 5, 9.)
Garnishee filed its acknowledgement of service and Answer on
April 16, 2018, identifying two checking accounts and one
savings account in which Defendant maintains an interest as
sole owner. (Doc. No. 6.) The Garnishee served the answer on
Defendant and his spouse on April 12, 2018, and the United
States again served the Answer on Defendant on May 4, 2018.
(Doc Nos. 6, 9.) The United States now seeks a final order of
garnishment pursuant to section 3205(c)(7) of the Federal
Debt Collections Procedure Act (“FDCPA”), 28
U.S.C. §§ 3001, et seq., requiring the
Garnishee to liquidate and pay to the Clerk of Court the
contents of Defendant's bank accounts with the Garnishee
in order to partially satisfy Defendant's unpaid
restitution order. (Doc. No. 13.)
Mandatory Victims Restitution Act (“MVPA”) makes
restitution mandatory for certain crimes, including mail
fraud. See 18 U.S.C. §§ 1341, 3663A(a)(1),
(c)(1)(A)(ii). Pursuant to the MVPA, the United States may
enforce a judgment imposing a fine, including restitution, in
accordance with the practices and procedures for enforcing a
civil judgment under the FDCPA. United States v.
Mays, 430 F.3d 963, 965, n.2 (9th Cir. 2005). The FDCPA
sets forth the “exclusive civil procedures for the
United States . . . to recover a judgment on. . . an amount
that is owing to the United States on account of . . .
restitution.” Id. at 965.
FDCPA permits the Court to “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). Property
is defined under the FDCPA to include, in relevant part,
“any present or future interest, whether legal or
equitable, in real, personal . . ., or mixed property,
tangible or intangible, vested or contingent, wherever
located and however held (including community property and
property held in trust . . .)[.]” 28 U.S.C. §
3002(12). The government is required by the FDCPA to provide
the judgment debtor with notice of the commencement of
garnishment proceedings. 28 U.S.C. § 3202(b). The
judgment debtor then has twenty days after receipt of the
notice to request a hearing. 28 U.S.C. § 3202(b). After
the garnishee files an answer, and if no hearing is requested
within the required time period, the Court must promptly
enter an order directing the garnishee as to the disposition
of the judgment debtor's property. 28 U.S.C. §
Defendant's interest in the bank accounts in the custody
of the Garnishee are property as defined under the FDCPA and
are therefore subject to garnishment. See 28 U.S.C.
§§ 3002(12), 3205(a). The United States provided
Defendant and his spouse with notice of the garnishment
proceedings on April 13, 2018, and June 11, 2018. (Doc. Nos.
5, 9.) The documents served on Defendant and his spouse
advised them of their rights to claim exemptions and request
a hearing on their claims, request a hearing to oppose the
writ, and object to the Answer and request a hearing.
(Id.) Defendant and his spouse were further advised
of the applicable deadlines for exercising these rights under
the FDCPA. (Id.) Neither Defendant, his spouse, nor
any other person filed any exemption claims, objections,
requests for hearing, or other response in this garnishment
action and their time to do so has now expired. Pursuant to
28 U.S.C. § 3205(c)(7), as no hearing was requested
during the applicable time period, the Court will recommend
that an order issue directing the Garnishee as to the
disposition of Defendant's bank accounts.
ORDER AND RECOMMENDATIONS
it is HEREBY ORDERED that the United States is directed to
serve a copy of these findings and recommendations on the
Garnishee Wells Fargo Bank, N.A., Defendant Oscar Diaz Landa,
and Julia Gonzalez Luna and file proof of such service within
seven (7) days of entry of these findings and
based on the foregoing, IT IS HEREBY RECOMMENDED that:
1. The United States' request for a final garnishment