Opinion
No. 2:03-mc-00118-MCE-JFM
04-25-2013
UNITED STATES OF AMERICA, Plaintiff, v. ALETHA M. ENSMINGER, Defendant.
ORDER
Plaintiff, the United States of America, has filed an application for a writ of continuing garnishment against Defendant. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 27, 2013, the Magistrate Judge filed findings and recommendations herein (ECF No. 21) which were served on the parties and which contained notice to the parties that any objections to the findings and recommendations were to be filed within fourteen days. Plaintiff filed partial objections to the findings and recommendations (ECF No. 22) and Defendant has filed objections to the findings and recommendations (ECF No. 23).
The Court has reviewed the file and finds the findings and recommendations to be supported by the record and by the Magistrate Judge's analysis. Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed February 27, 2013, are ADOPTED IN PART and REJECTED IN PART.
2. The application for writ of continuing garnishment is GRANTED.
3. Garnishee Pacific Dental Services, Inc., Parkway Dental Group and Orthodontics and its successors or assigns, pay to the United States, in care of the U.S. Department of Justice, twenty-five percent (25%) of all disposable wages earned by Aletha M. Ensminger, which it has previously withheld since service of the Writ, and it shall also provide the United States with a written, itemized accounting, by pay period, of Dr. Ensminger's disposable wages and exact amount that it withheld between service of the Writ on April 23, 2012, and service of this Order;
4. Garnishee Pacific Dental Services, Inc., Parkway Dental Group and Orthodnotics and its successors or assigns, shall withhold and pay to the United States, in care of the U.S. Department of Justice, twenty-five percent (25%) of all disposable wages earned by Aletha M. Ensminger, and it shall also provide the United States with a written, itemized accounting, by pay period, of Dr. Ensminger's disposable wages and exact amount that it withholds and pays to the United States'
5. All payments shall be made payable to: "U.S. Department of Justice" and mailed to: United States Attorney's Office, attention: Financial Litigation Unit, 501 I Street, Suite 10-100, Sacramento, California 95814, unless directed otherwise by the U.S. Attorney's Office;
6. Garnishee Pacific Dental Services, Inc., Parkway Dental Group and Orthodontics and its successors or assigns, shall continue said withholdings and payments until
the debt to the United States, to wit the sum of $137,564.02 as of December 1, 2012; plus accruing interest at the post-judgment interest rate of 1.25% compounded annually, is paid in full or until the Garnishee no longer has custody, possession or control of any property belong to Judgment Debtor Aletha M. Ensminger or until further order of this Court.
7. The United States' request for a surcharge is GRANTED, and the findings and recommendations denying this request are REJECTED. The United States is entitled to the 10% surcharge authorized by the FDCPA. 28 U.S.C. § 3011(a). Although the state court default judgment includes $2,261 in attorney's fees, those are not attorney's fees "in connection with the enforcement of the claim." See 28 U.S.C. § 3011(b)(1). Thus, the fees from the underlying action do not operate as a bar to the United States collecting the 10% surcharge authorized by the FDCPA.
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MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE