United States District Court, E.D. California
AND RECOMMENDATIONS RECOMMENDING GRANTING REQUEST FOR FINAL
ORDER OF GARNISHMENT ORDER REQUIRING THE GOVERNMENT TO SERVE
A COPY OF THE FINDINGS AND RECOMMENDATIONS (ECF NO. 16, 18)
OBJECTIONS DUE WITHIN TWENTY-ONE DAYS
pending before the Court is the United States'
application pursuant to section 3205(c)(7) of the Federal
Debt Collection Procedure Act (“FDCPA”) 28 U.S.C.
§§ 3001, et seq., for a final order garnishing the
property and accounts Mahendra Prasad
(“Defendant”) maintains at garnishee Wells Fargo
Bank. The matter was referred to the undersigned pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(7).
August 14, 2017, after pleading guilty to a single count of
mail fraud in violation of 18 U.S.C. § 1341, Defendant
was sentenced in a criminal case United States v.
Mahendra Prasad, no. 1:15-cr-0045- LJO-BAM, and ordered
to pay a special assessment of $100. and restitution of $328,
000. in restitution.United States v. Mahendra Prasad,
no. 1:15-cr-0045-LJO-BAM, (ECF Nos. 179, 181). On August 21,
2017, District Judge Lawrence J. O'Neill entered an order
for forfeiture of money judgment, ordering that Defendant
shall forfeit to the United States $328, 000. and a personal
forfeiture money judgment was entered against Defendant in
that amount. Id., (ECF No. 180). On April 28, 2017,
an amended judgment was entered against Defendant, as
relevant here, Defendant was ordered to pay the $100.
assessment and restitution of $328, 000. Id., (ECF
No. 182 at 6). On December 21, 2018, the underlying criminal
case was transferred to the Northern District of California.
Id., (ECF Nos. 198 and 199). The instant garnishment
case was not transferred pursuant to the December 21, 2018
transfer order. Id., (ECF No. 198).
separate garnishment action, the Government was awarded
restitution of $315, 353.80 and a litigation surcharge of
$32, 740. U.S. v. Mahendra Prasad, case No.
1:18-mc-00016-LJO-SAB (E.D. Cal. July 26, 2019). The funds
collected from this separate action were insufficient to
satisfy the surcharge amount. (Request for Findings and
Recommendations for Final Order of Garnishment ¶ 2, ECF
attempt to collect the restitution owed by Defendant, on
March 19, 2018, the Government filed an application for a
writ of garnishment for bank accounts at Wells Fargo Bank.
(ECF No. 1.) On March 20, 2018, the writ of garnishment was
entered and Wells Fargo was served with a copy of the writ.
(ECF Nos. 3, 4.) On March 22, 2018, Defendant was served with
1) the application for writ of garnishment; 2) the issued
writ of garnishment; 3) the clerk's notice of
instructions to judgment debtor re: writ of garnishment; 4)
defendant's request for hearing form (blank); 5)
instructions to defendant/judgment debtor on how to claim
exemptions; 6) instructions to the judgment debtor re
objecting to the answer of the garnishee; 7) a notice of
availability of a magistrate judge to exercise jurisdiction
and appeal instructions; and 8) a consent or decline
jurisdiction of a United States magistrate judge form. (ECF
No. 4.) Defendant was re-served on April 2, 2018, to include
his registration number. (ECF No. 7.) On April 6, 2018,
Defendant was served with the acknowledgement of service and
answer of the garnishee. (ECF No. 8.)
Fargo Bank's acknowledgement of service and answer of
garnishee was filed on April 9, 2018. (ECF No. 9.) Wells
Fargo Bank's answer identifies three accounts of which
Defendant is a joint owner. Defendant and Padma W. Khetan are
the joint owners of account no. XXXXXX-7641 with a balance of
480.08; Defendant and Anand Prasad are joint owners of
account no. XXXXXX-0104 with a balance of $2, 415.59; and
Defendant and Sarita Prasad are joint owners of account no.
XXXXX-7926 with a balance of $490.59. (ECF No. 9.) On
September 12, 2019, Sarita Prasad and Anand Prasad were
served with copies of the writs and related documents and the
answer and related case order. (ECF Nos. 14, 15.)
October 29, 2019, the Government filed the instant
application for final garnishment order. (ECF No. 16.) At the
request of the Court, the Government filed supplemental
briefing on November 7, 2019 addressing service on Padma W.
Khetan. (ECF Nos. 17, 18.)
Government requests that the Court issue a final order of
garnishment. The Court, having reviewed its files and the
application, recommends that the request be granted for the
reasons explained below.
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.” United States v. Mays, 430 F.3d
963, 965 (9th Cir. 2005) (quoting 28 U.S.C. §§
3001(a)(1), 3002(3)(B)). The Mandatory Victims Restitution
Act (“MVPA”) made restitution mandatory for
certain crimes, including mail fraud, the crime of which
Defendant was convicted. See 18 U.S.C. §§
1341, 3663A(a)(1), 3663A(c)(1)(A)(ii). The MVPA provides that
the United States may enforce a judgment imposing a fine,
which includes restitution, in accordance with the practices
and procedures for enforcing a civil judgment under the
FDCPA. Mays, 430 F.3d at 965 & n.2. Section 3205
of the FDCPA provides that “[a] court may issue a writ
of garnishment against property . . . 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.
Co-owned property shall be subject to garnishment to the same
extent as co-owned property is subject to garnishment under
the law of the State in which such property is
located.” 28 U.S.C. § 3205(a).
the FDCPA, the government is required to provide the judgment
debtor with notice of the commencement of garnishment
proceedings. 28 U.S.C. § 3202(b). The judgment debtor
has twenty days after receipt of the notice to request a
hearing. 28 U.S.C. § 3202(b). If a garnishment hearing
is held, it is limited to the issues of (1) “the
probable validity of any claim of exemption by the judgment
debtor;” (2) “compliance with any statutory
requirement for the issuance of the postjudgment remedy
granted; and (3) if the judgment is by default . . . to-(A)
the probable validity ...