Opinion
Case No. C-96-0861M
11-02-2011
UNITED STATES OF AMERICA, Plaintiff, v. Anthony D. Canton, Defendant, and Foster's Wine Estates Americas Company, Garnishee.
Anthony D. Canton Michael Cosentino Attorney at Law
MICHAEL COSENTINO SBN 83253
ATTORNEY AT LAW
PO BOX 129
COUNSEL FOR THE UNITED STATES
OF AMERICA, PLAINTIFF
WRIT OF CONTINUING GARNISHMENT
TO: Payroll Department
Foster's Wine Estates Americas Company
P.O. Box 4500
Napa, CA 94558-0005
YOU ARE HEREBY COMMANDED TO GARNISH FOR THE BENEFIT OF THE UNITED STATES OF AMERICA THE WAGES, SALARY, OR COMMISSION IN YOUR CUSTODY, CONTROL, OR POSSESSION IN WHICH THE DEFENDANT-JUDGMENT DEBTOR HAS AN OWNERSHIP INTEREST.
The name and last known address of the person who is the defendant- judgment debtor (hereinafter "debtor") in this action and whose property is subject to this Writ are as follows:
Anthony D. Canton
1028 View Dr.
Richmond, CA 94803
This Writ has been issued at the request of the United States of America to enforce the collection of a civil judgment entered in favor of the United States against the debtor for a defaulted student loan in the amount of $11,484.80. There is a balance of $18,251.77 due on the judgment, which amount includes costs and interest computed through 10/18/2011.
The following are the steps that you must take to comply with this Writ. If you have any questions, you should consult with your attorney.
1. Pursuant to 28 U.S.C. § 3205(c)(2)(F), if you have in your custody, control, or possession any property of the debtor, including wages, salary, or commissions, in which the debtor has a substantial nonexempt interest, or if you obtain custody, control, or possession of such property while this Writ is in effect, you must immediately withhold such property from the debtor and retain it in your possession until you receive instructions from the Court which will tell you what to do with the property. The United States has requested that the sum of 25% of the debtor's disposable earnings, which under California law represents the nonexempt portion of the debtor's earnings, be withheld from the defendant's earnings.
2. Pursuant to 28 U.S.C. § 3205(c)(2)(E), you are required to answer this Writ within 10 days after service of this Writ upon you. You must answer the Writ even if you do not have in your custody, control, or possession any property of the debtor. Pursuant to 28 U.S.C. § 3205(c)(4), your answer must state, under oath, the following information:
a. Whether or not you have in your custody, control, or possession, any property owned by the debtor in which the debtor has a substantialFor your convenience, a form which addresses the above-requested information is attached and may be used to Answer the Writ.
nonexempt interest, including nonexempt, disposable earnings;
b. a description of such property and the value of such property;
c. a description of any previous garnishments to which such property is subject and the extent to which any remaining property is not exempt; and
d. the amount of the funds you anticipate owing to the debtor in the future and whether the period for payment will be weekly or another specified period.
3. After you complete the answer under oath, pursuant to 28 U.S.C. § 3205(c)(2)(E) & (c)(4), within ten (10) days after service of this Writ upon you, you must mail or deliver the original Answer bearing the original signature of the person preparing the answer to the Court at the following address:
Clerk, United States District Court
450 Golden Gate Avenue, 16th Floor
P. O. Box 36060
San Francisco, CA 94102
At the same time that you mail or deliver the original answer to the Court, you must also mail or deliver a copy of the original Answer to both the debtor and attorney for the United States at the following respective addresses:
Anthony D. Canton
1028 View Dr.
Richmond, CA 94803
Michael Cosentino, Attorney at Law
P.O. Box 129
Alameda, CA 94501
Please note that the attached form Answer contains a certificate of service which needs to be completed by the person mailing the copies of the answer to the debtor and the attorney for the United States, and which needs to be filed along with the Answer.
IF YOU FAIL TO ANSWER THIS WRIT OR FAIL TO WITHHOLD PROPERTY IN ACCORDANCE WITH THIS WRIT, THE UNITED STATES MAY PETITION THE COURT FOR AN ORDER REQUIRING YOU TO APPEAR BEFORE THE COURT TO ANSWER THE WRIT AND TO WITHHOLD PROPERTY IN ACCORDANCE WITH THE WRIT BEFORE THE APPEARANCE DATE. IF YOU FAIL TO APPEAR OR DO APPEAR AND FAIL TO SHOW GOOD CAUSE WHY YOU FAILED TO COMPLY WITH THIS WRIT, THE COURT WILL ENTER A JUDGMENT AGAINST YOU FOR THE VALUE OF THE DEBTOR'S NONEXEMPT INTEREST IN SUCH PROPERTY (INCLUDING NONEXEMPT DISPOSABLE EARNINGS). THE COURT MAY ALSO AWARD A REASONABLE ATTORNEY'S FEE TO THE UNITED STATES AND AGAINST YOU IF THE WRIT IS NOT ANSWERED WITHIN THE TIME SPECIFIED HEREIN AND IF THE UNITED STATES FILES A PETITION REQUIRING YOU TO APPEAR.
RICHARD W. WIEKING, Clerk
United States District Court
for the Northern District of California
By: __
Deputy Clerk
GLORIA ACEVEDO
DO NOT WITHHOLD THE EXEMPT PORTION OF THE EMPLOYEE'S EARNINGS
1. Earnings include any money (whether called wages, salary, commissions, bonuses, or anything else) paid for personal services, pension, or retirement. Vacation or sick pay is earnings subject to withholding as it is received by the employee.
2. Disposable earnings are different from gross pay or take-home pay. They are the earnings left after deducting the part which state or federal law requires an employer to withhold as mandatory deductions. Generally, these mandatory deductions are federal income tax, social security (FICA) tax, state income tax, state disability insurance, and payments to public employee retirement systems. Disposable earnings can change from pay period to pay period, whenever gross pay or required deductions change.
To determine earnings that are eligible for withholding, and therefore must be withheld, see the chart below.
USE THE CHART BELOW TO DETERMINE NONEXEMPT DISPOSABLE EARNINGS AND THE APPLICABLE WITHHOLDING AMOUNT:
Based on the Federal Minimum Wage Earnings of $7.25 an hour, effective 07/24/2009
+------------------------------------------------------------------------------+ ¦Pay Period: Weekly or ¦Every 2 ¦Twice a ¦Once a ¦ ¦ ¦ ¦ ¦ ¦ ¦oftener ¦weeks ¦month ¦month ¦ +---------------------------------------+----------------+----------+----------¦ ¦Disposable ¦$0to ¦$0to ¦$0to ¦$0to ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦earnings: ¦$217.50 ¦$435.00 ¦$471.25 ¦$942.50 ¦ +----------------------+---------------------------------+----------+----------¦ ¦Withhold: ¦Nothing (entire earnings are ¦ ¦ ¦ ¦ ¦exempt) ¦ ¦ ¦ +----------------------+---------------------------------+----------+----------¦ ¦ ¦$217.51 to ¦$435.01 to ¦$471.26 to¦$942.51 to¦ ¦Disposable earnings: ¦ ¦ ¦ ¦ ¦ ¦ ¦$290.00 ¦$580.00 ¦$628.33 ¦$1,256.67 ¦ +----------------------+----------------+----------------+----------+----------¦ ¦ ¦Amt. over ¦Amt. over ¦Amt. over ¦Amt. over ¦ ¦Withhold: ¦ ¦ ¦ ¦ ¦ ¦ ¦$217.50 ¦$435.00 ¦$471.25 ¦$942.50 ¦ +----------------------+----------------+----------------+----------+----------¦ ¦ ¦$290.01 ¦$580.01 ¦$628.34 ¦$1,256.68 ¦ ¦Disposable earnings: ¦ ¦ ¦ ¦ ¦ ¦ ¦or more ¦or more ¦or more ¦or more ¦ +------------------------------------------------------------------------------+
Withhold: 25% of disposable earnings (balance is exempt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, Plaintiff,
v.
Anthony D. Canton, Defendant,
and
Foster's Wine Estates Americas Company Garnishee.
Case No. C-96-0861M
ANSWER OF GARNISHEE
I, _, being first duly sworn, hereby state the following:
1. I am the _(Official Title) of the Garnishee named in the above caption. I am authorized to prepare this Answer on behalf of the Garnishee.
2. The Garnishee was served with the Writ of Continuing Garnishment on _ (date) in this action.
3. The Garnishee currently has custody, control, or possession of earnings of the Defendant. Yes _ No _
4. The Garnishee expects to obtain custody, control, or possession of earnings of the Defendant in the foreseeable future. Yes_ No
5. For the pay period in effect on the date of service of this Writ of Continuing Garnishment, the Garnishee states as follows:
a. Defendant was in my/our employ. Yes _ No _
b. The Defendant's pay period is _ weekly, _ bi-weekly, _ semi-monthly, _ monthly.
c. The Defendant's present pay period began on _ (date). ("Present" means the pay period in which the Writ of Continuing Garnishment was served.)
d. The Defendant's present pay period ends on _ (date).
e. The Defendant's net wages are as calculated below:
(1) Gross Pay $_Net Wages $_
(2) Federal income tax $_
(3) F.I.C.A. tax $_
(4) State income tax $_
(5) SDI $_
Total tax withholdings $_
(gross pay minus above withheld taxes)
6. Are there any other garnishments currently in effect? Yes _ No __ If the answers is yes, describe below and attach to this Answer a copy of each garnishment:
7. Will the Garnishee owe the Defendant money in the foreseeable future? Yes_ __ No_ __ If the answer is yes, provide the reason why such money will be owed, the amount of money that will be owed, and the date or dates on which each payment will be due:
+----------------------------+ ¦Type of¦ ¦ ¦ ¦ ¦ ¦Date Payment ¦ ¦Payment¦Amount¦ ¦ ¦ ¦ ¦Will be Due ¦ ¦1. ¦ ¦ ¦ +----------------------------¦ ¦2. ¦ +----------------------------¦ ¦3. ¦ +----------------------------+
8. Does the Garnishee currently have custody, control or possession of property (other than earnings) such as bank accounts, pensions, thrift plans, etc., in which the Defendant maintains an interest? Yes _ No _ If the answer is yes, then provide the following information for each item of such property:
+-----------------------------------------------+ ¦Description of¦ ¦ ¦ ¦ ¦Approximate¦Description of ¦ ¦Property ¦ ¦ ¦ ¦ ¦Value ¦Defendant's Interest¦ ¦1. ¦ ¦ ¦ +-----------------------------------------------¦ ¦2. ¦ +-----------------------------------------------¦ ¦3. ¦ +-----------------------------------------------¦ ¦4. ¦ +-----------------------------------------------+
9. Does the Garnishee expect to obtain in the foreseeable future custody, control or possession of property (other than earnings) such as bank accounts, pensions, thrift plans, etc., in which the Defendant maintains an interest? Yes_ No_ If the answer is yes, then provide the following information for each item of such property:
+---------------------------------------------------------+ ¦ ¦ ¦ ¦Date Will¦ ¦Description of¦Approximate¦Description of ¦ ¦ ¦ ¦ ¦ ¦Obtain ¦ ¦Property ¦Value ¦Defendant's Interest¦ ¦ ¦ ¦ ¦ ¦Property ¦ +---------------------------------------------------------¦ ¦1. ¦ +---------------------------------------------------------¦ ¦2. ¦ +---------------------------------------------------------¦ ¦3. ¦ +---------------------------------------------------------¦ ¦4. ¦ +---------------------------------------------------------+
10. Does the Garnishee have any objections or defenses to the Writ of Continuing Garnishment? Yes _ No_ If the answer is yes, list the nature and basis of each objection and/or defense:
On behalf of Foster's Wine Estates Americas Company, I hereby certify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
By:_
(Sign above and type or print name
below)
CERTIFICATE OF SERVICE
I,_, declare:
That I am a citizen of the United States and employed in the County of _, California; that my business address is _; that I am over the age of eighteen years; and that I am not a party to the above-entitled action;
That on_(date), I deposited in the United States mail, in envelopes bearing the requisite postage, a copy of:
ANSWER OF GARNISHEE
addressed to each of the following, at their last known addresses, at which place there is service by United States mail.
Anthony D. Canton
1028 View Dr.
Richmond, CA 94803
Michael Cosentino
Attorney at Law
P.O. Box 129
Alameda, CA 94501
This Certificate was executed on _ (date), at _ (city), California.
I certify under penalty of perjury that the foregoing is true and correct.
___
(sign above and type or print name
below)