Opinion
Misc. No. 2:10-MC-00116-GEB-EFB Criminal No. 2:09-CR-00343-01-LKK
10-25-2011
UNITED STATES OF AMERICA, Plaintiff, v. REGINA SCHENCK and EMERSON SCHENCK, Defendant and Judgment Debtor. MORGAN STANLEY SMITH BARNEY, Garnishee.
ORDER OF EXECUTION/GARNISHMENT (ACCOUNTS)
A Writ of Execution/Garnishment (Accounts) directed to the Garnishee Morgan Stanley Smith Barney has been duly issued. Dckt. No. 3. It was served upon the Garnishee. See Dckt. No. 11 at ¶ 2. The Garnishee filed an Acknowledgment of Service and Answer of Garnishee, Dckt. No. 11, stating that at the time of service of the Writ, the Garnishee had custody or possession of the following property in which the Judgment Debtor Regina Schenck maintains an interest:
1. 401K Plan, Account Number 171-112608, with an approximate value of $54,130.00; the monies in said account are invested in securities that are subject to market fluctuations. Dckt. No. 11 at ¶ 3.
The balance owing by Judgment Debtor Regina Schenck on the judgment is $1,635,274.90 as of October 20, 2011, and said amount is current from the amount set forth in the Application For Writ of Execution/Garnishment (Accounts) filed herein, Dckt. No. 1.
While the Application for Writ of Execution/Garnishment also referenced penalties and attorney's fees, see Dckt. No. 1 at 2:2-4, plaintiff does not seek them at this time, but does not waive its right to do so in some later proceeding.
The Judgment Debtors were served by the Garnishee with the Answer of Garnishee on September 23, 2011, see Dckt. No. 11, and no written objection or request for a hearing was filed within 20 days, as set forth in 28 U.S.C. § 3205(c)(5), and no request for a hearing was filed on a claim of exemption, as set forth in 28 U.S.C. § 3014(b)(2).
Pursuant to 28 U.S.C. § 3205(c)(7), after the Garnishee files an answer, and if no hearing is requested within the required time period, the court shall promptly enter an order directing the Garnishee as to the disposition of the Judgment Debtor's property.
ACCORDINGLY, IT IS ORDERED that the Garnishee Morgan Stanley Smith Barney shall turn over to the Clerk of this Court, in United States currency, certified funds or cashier's check, the exact and full amount of all funds available in defendant/judgment debtor Regina Schenck's 401K Plan, Account Number 171-112608. No deductions are to be made from this amount.
If payment is made by monetary instrument, the instrument must be made payable to the "Clerk of the Court" and the face of the instrument must indicate that the payment is being made on behalf of "Regina Schenck, Criminal Case No. 2:09-CR-00343-01-LKK." The payment must be delivered to:
Clerk of the Court
Robert T. Matsui Federal Courthouse
501 I Street, Suite 4-200
Sacramento, California 95814
IT IS FURTHER ORDERED that upon receipt of payment by the Clerk of the Court, the Writ of Execution/Garnishment is hereby terminated.
IT IS SO ORDERED.
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE