Opinion
CR-01-01136-002-PHX-SMM
07-29-2022
United States of America, Plaintiff/Judgment Creditor, v. Michael Moussa, Defendant/Judgment Debtor, GCON Management Company, LLC, Garnishee.
TO THE HONORABLE STEPHEN M. MCNAMEE, UNITED STATES DISTRICT JUDGE;
REPORT AND RECOMMENDATION
HONORABLE MICHELLE H. BURNS, UNITED STATES MAGISTRATE JUDGE
This matter arises on Defendant/Judgment Debtor's (hereinafter “Judgment Debtor”) Request for Hearing “to have the requested Writ of Garnishment from my current employer ... be suspended until further review,” filed on June 28, 2022. (Doc. 383.) Plaintiff/Judgment Creditor (hereinafter “Judgment Creditor”) filed a Response on June 29, 2022 (Doc. 384), and on July 8, 2022, Judgment Debtor filed a reply (Doc. 385).
BACKGROUND
On April 21, 2003, judgment was entered against Judgment Debtor for the crimes of Interference with Commerce by Threats and Violence, and Brandishing a Firearm in Connection with a Crime of Violence, as charged in counts 1 and 2 of the indictment, that included an order that he pay restitution in the amount of $1,129,736.14, due immediately. (Doc. 199.) The Court ordered Judgment Debtor to make payments under the Bureau of Prisons Inmate Financial Responsibility Program and pay the balance of restitution within 90 days of the expiration of supervision. (Id.) The current balance due on the Judgment is $632,893.10. (Doc. 384 at 2.)
On June 14, 2022, the Judgment Creditor filed an Application for Writ of Garnishment pursuant to 28 U.S.C. §3205(b)(1) against Garnishee GCON Management Company, LLC. (Doc. 379.) On June 15, 2022, the Clerk of Court issued the Writ. (Doc. 380.) On June 21, 2022, copies of the Writ, the Clerk's Notice of Post Judgment Garnishment and Garnishment Instructions to Judgment Debtor were served on Judgment Debtor by certified and first-class mail. (Doc. 381.) Garnishee submitted an Answer on June 24, 2022, conceding that Judgment Debtor was an employee with earnings subject to garnishment. (Doc. 382-1.) Judgment Debtor requested a hearing on June 23, 2022. (Doc. 383.) On July 11, 2022, the presiding Court referred this matter to undersigned, “pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for any necessary proceedings and a report and recommendation.” (Doc. 386.)
In Judgment Debtor's request for a hearing, he concedes that the judgment against him is valid and enforceable, but asserts that the garnishment against his current employer GCON Management Company, “be waived as [he] is currently paying child support,” and alimony pursuant to a verbal agreement with his ex-wife. (Doc. 383.) Alternatively, he requests that if court-ordered child support and alimony is necessary to support a waiver or delay of garnishment, he be given time to obtain such an order before an order of garnishment. (Id.) Judgment Debtor also indicates that he can pay more once he completes his state court probation and pays off the state fine. (Id.)
ANALYSIS
The statute governing enforcement of judgments contains a provision relating to objections to garnishment and requests for hearing that provides:
By requesting, within 20 days after receiving the notice described in section 3202(b), the court to hold a hearing, the judgment debtor may move to quash the order granting such remedy. The court that issued such order shall hold a hearing on such motion as soon as practicable, or, if so requested by the judgment debtor, within five days after receiving the request or as soon thereafter as possible. The issues at such hearing shall be limited-
(1) to the probable validity of any claim of exemption by the judgment debtor;
(2) to compliance with any statutory requirement for the issuance of the post judgment remedy granted; and
(3) if the judgment is by default and only to the extent that the Constitution or another law of the United States provides a right to a hearing on the issue, to-
(A) the probable validity of the claim for the debt which is merged in the judgment; and
(B) the existence of good cause for setting aside such judgment.28 U.S.C. §3202(d).
At the outset, it is worth noting that Judgment Debtor requested a hearing on June 23, 2022, a day before Garnishee submitted its Answer. Thus, Judgment Debtor is not in compliance with the statutory provision that a request for hearing be made “within 20 days after” receiving Garnishee's Answer. Additionally, a request for a hearing may be denied where the debtor does not state a proper bases for objection pursuant to 28 U.S.C. § 3202(d). See United States v. Miller, 588 F.Supp.2d 789, 797 (W.D. Mich. 2008) (court may deny request for hearing where the objection is without merit); United States v. Bruneau, No. CR-09-8098-1-FJM (LOA), 2013 WL 6409518, *3 (D. Ariz. Oct. 23, 2013). Judgment Debtor does not cite any of the reasons identified in this statute as a proper basis for his request for a hearing. Financial hardship is not a “permissible defense to raise under 28 U.S.C. § 3202(d).” United States v. Mahar, 42 F.3d 1389 (6th Cir. 1994); see Bruneau, 2013 WL 6409518, *4.
Judicial orders and garnishments for the support of a person have priority over writs of garnishment pursuant to 28 U.S.C. § 3205(c)(8). Judgment Debtor, however, does not assert that he has been ordered to support any person. Judgment Debtor's unsworn statement regarding his voluntary “alimony/child support” payments, and a copy of a bank statement showing periodic money transfers to Angela Moussa over a six-month period are not sufficient to satisfy the statute. (Docs. 385, 385-1.) See United States v. Webb, No. CR-10-01071-001-PHX-JAT, 2014 WL 4371276, *2 (D. Ariz. Sept. 4, 2014) (judgment debtor did not provide a judicial order or garnishment to support another person, and thus § 3205(c)(8) was inapplicable). In any event, Judgment Debtor does not request an exemption from garnishment. He states:
I am requesting a hearing to discuss an agreed upon amount that I can afford after all my expenses have been met. I am not seeking exemption or asking for the judgment to be set aside. I am asking for a monthly payment that I can afford during this time.(Doc. 385 at 2.)
As Judgment Debtor has not stated a valid ground authorized by 28 U.S.C. § 3202(d) to schedule and conduct a garnishment hearing, this Court will recommend that Judgment Debtor's Request for Hearing be denied and that the Writ of Garnishment issue.
IT IS THEREFORE RECOMMENDED that Judgment Debtor's Request for Hearing (Doc. 383) be DENIED and that the Writ of Garnishment (Doc. 379) ISSUE.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.