Opinion
BENJAMIN B. WAGNER, United States Attorney, KURT A. DIDIER, Assistant United States Attorney, Sacramento, CA, Attorneys for Plaintiff United States of America.
CALEB COLE, in pro per, for the Defendant and Judgment Debtor.
STIPULATION REGARDING WRIT OF GARNISHMENT; AND ORDER THEREON
LAWRENCE J. O'NEILL, District Judge.
Plaintiff United States and defendant Caleb Cole hereby stipulate to the resolution of the United States' pending garnishment action against Defendant's interest in his retirement account at garnishee Oppenheimer Funds Services ("Oppenheimer Funds") as follows:
1. The Court convicted and sentenced Defendant in the above referenced criminal case as stated in the Judgment in a Criminal Case filed on August 3, 2014. CR ECF No. 366. The Judgment ordered Defendant to pay a $100 special assessment and $663, 950 in restitution. Defendant has not paid the restitution in full.
2. The United States sought, and the Clerk issued, a writ of garnishment on March 27, 2015 against Defendant's retirement account at Oppenheimer Funds. Misc. ECF No. 5.1.
3. Oppenheimer Funds filed and served its acknowledgement of service and answer of garnishee (the "Answer") to the writ, identifying Defendant as the owner of a retirement account ending in numbers 9552. Misc. ECF No. 8. The Answer states the approximate value of the account as $20, 509.44. The value is approximate as the account may be subject to dividend distributions and fluctuating market prices.
4. On April 15, 2015, Defendant filed a request for hearing in this garnishment proceeding. Misc. ECF No. 7. The request states: "I do not understand how the disbursement will affect my federal taxes. If I am liable for the penalty for early withdrawal I request that amount be left for me to do so."
5. Following negotiations, the parties agree the United States may garnish a portion of Defendant's retirement account number 9552 and that the Court can and should enter an order:
A. Garnishing 85% of the account's value as of the date the Court signs the order approving this stipulation (the "Garnished Amount"; for example, if the value of account number 9552 is still $20, 509.44 at the time of signature, Oppenheimer Funds would pay $17, 433.02) and directing the payment of this amount to the Clerk of the Court; and
B. That upon Oppenheimer Fund's payment of the Garnished Amount to the Clerk, Oppenheimer Funds may release the balance of the retirement account to Defendant's control.
6. Defendant agrees to withdraw his previously filed request for hearing and waives any other objection to this proceeding.
ORDER
The Court, having reviewed the court files and the parties' Stipulation Regarding Writ of Garnishment (the Stipulation), and finding good cause therefrom, hereby APPROVES the Stipulation.
ACCORDINGLY, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
1. The United States' application for an order of garnishment is GRANTED;
2. Oppenheimer Funds shall DELIVER, within fifteen (15) days of the date of this Order, a cashier's check or money order in the sum of 85% of the value of Defendant's account ending in numbers 9552, calculated as of the date this order is signed below (the "Garnished Amount") and made payable to the "Clerk of the Court" at the Office of the Clerk, United States District Court, Eastern District of California, 501 I Street, Suite 4-200, Sacramento, California 95814. Oppenheimer Funds shall also state the docket number (Case No. 1:11-CR-000026-LJO) on the payment instrument and, if it desires a payment receipt, shall include a self-addressed, stamped envelope with the payment;
3. Upon its payment of the Garnished Amount to the Clerk, Oppenheimer Funds shall RELEASE its hold on the remaining monies in account number 9552; and
4. This is a final order of garnishment; upon payment and processing of the Garnished Amount as ordered above, this writ shall TERMINATE pursuant to 28 U.S.C. § 3205(c)(10)(B).
SO ORDERED.