Opinion
2:09-cr-83-FtM-29DNF.
April 19, 2011
OPINION AND ORDER
This matter came before the Court on April 18, 2011, for a hearing as to the amount of restitution. The Court received Government's Exhibit 1 as evidence, and heard argument from counsel. The parties agree that the principal amount of $339,110.52 is due to the United States Department of Housing and Urban Affairs (HUD), and that this amount begins the restitution calculation. The parties further agree that the property has now been sold pursuant to a sales contract of $67,200.00, which netted $64,038.00 to HUD. Defendant asserts that the full sales price should be credited against the principal amount, while the government argues that only the net proceeds should be credited against the principal amount. Additionally, the government asserts that fees and expenses incurred as part of the foreclosure and re-sale should be added to the principal amount.
To determine the amount of restitution, the government bears the burden of establishing the amount of the loss sustained by the victim by the preponderance of the evidence. 18 U.S.C. § 3664(e). While neither party has cited any Eleventh Circuit authority, other circuits have held that restitution does not include consequential damages such as attorney fees and expenses. United States v. Remillong, 55 F.3d 572, 575 n. 6 (11th Cir. 1995). In the absence of any binding authority to the contrary, the Court concludes that the amount of restitution is $271,910.52 ($339,110.52 less $67,200.00).
Defendant also requested that, given her current financial circumstances, the Court order relatively nominal monthly payments towards restitution. With defendant's consent, the Court has considered the financial information set forth in the Presentence Report, updated with the information that defendant no longer has her business in operation. The Court concludes that defendant shall be required to pay restitution in the amount of at least $100.00 per month, unless otherwise ordered by the Court based upon a change of financial circumstances.
Accordingly, it is now
ORDERED:
1. Defendant shall pay restitution in the amount of $271,910.52 to the United States Department of Housing and Urban Development at HUD-FOC Debt, PO, Box 979056, St. Louis, MO 63197-9000.
2. Unless otherwise ordered by the Court, restitution shall be in monthly payments of at least $100 payable to the U.S. Department of HUD, HUD-FOC Debt, PO, Box 979056, St. Louis, MO 63197-9000.
3. The Clerk shall enter an amended judgment accordingly.
DONE AND ORDERED at Fort Myers, Florida.