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United States v. DePena

United States District Court, W.D. North Carolina, Charlotte Division

November 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MILDRED DEPENA, Defendant, and PERSONAL HOME CARE OF NC, LLC, Garnishee.

          WRIT OF CONTINUING GARNISHMENT

          David C. Keesler United States Magistrate Judge.

GREETINGS TO: Personal Home Care of North Carolina, LLC PHC Home Health Attn: Payroll 1515 Mockingbird Lane, Suite 415 Charlotte, North Carolina 28209

         An Application for a Writ of Garnishment against property of Mildred DePena, Defendant, has been filed with this Court (Docket No. 220). A judgment has been entered against Defendant (Docket No. 161). The U.S. Clerk of Court current total is $867, 497.69, computed through November 13, 2017, and is due and owing.

         You, as Garnishee, are required by law to answer in writing, under oath, within ten (10) days of service of this Writ, whether or not you have in your custody, control or possession, any property, or funds owned by Defendant, including non-exempt, disposable earnings.

         You must withhold and retain any property in which Defendant has a substantial non-exempt interest and for which you are or may become indebted to Defendant pending further order of the Court. This means that you should withhold twenty-five percent of Defendant's earnings which remain after all deductions required by law have been withheld and one hundred percent of all 1099 payments. See 15 U.S.C. §1673(a).

         Please state whether or not you anticipate paying Defendant any future payments and whether such payments are weekly, bi-weekly, monthly, annually or bi-annually.

         You must file the original written Answer to this Writ within ten (10) days of your receipt of this Writ with the following office:

Clerk of the United States District Court 401 West Trade Street Charlotte, North Carolina 28202

         Additionally, you are required by law to serve a copy of the Answer upon Defendant at his/her last known address:

Mildred DePena 13 Chapman Street Lincolnton, North Carolina 28092

         You are also required to serve a copy of the Answer upon Plaintiff at the following address:

Financial Litigation Unit United States Attorney's Office 227 West Trade St., Suite 1650 Charlotte, North Carolina 28202

         Under the law, there is property which may be exempt from this Writ of Garnishment. Property which is exempt and which is not subject to this order may be listed on the attached Claim for Exemption form.

         Pursuant to 15 U.S.C. §1674, you, Garnishee, are prohibited from discharging Defendant from employment by reason of the fact that his earnings have been subject to garnishment for any one indebtedness.

         Pursuant to 28 U.S.C. §3205(c)(6), if you fail to answer this Writ or withhold property or funds in accordance with this Writ, the United States of America may petition the Court for an order requiring you to appear before the Court to answer the Writ and to withhold property 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 shall enter a judgment against you for the value of Defendant's non-exempt interest in such property. The Court may award a reasonable attorney's fee to the United States and against you if the Writ is not answered within the time specified. It is unlawful to pay or deliver to Defendant any item attached by this Writ.

         CLAIM FOR EXEMPTION FORM MAJOR EXEMPTIONS UNDER FEDERAL LAW (18 U.S.C. § 3613)

         ___ 1. Wearing apparel and school books.--Such items of wearing apparel and such school books as are necessary for the debtor or for members of his family.

         ___ 2. Fuel, provisions, furniture, and personal effects.--So much of the fuel, provisions, furniture, and personal effects in the Debtor's household, and of the arms for personal use, livestock, and poultry of the debtor, as does not exceed $9, 200 in value.

         ___ 3. Books and tools of a trade, business, or profession.--So many of the books, and tools necessary for the trade, business, or profession of the debtor as do not exceed in the aggregate $4, 600 in value.

         ___ 4. Unemployment benefits.--Any amount payable to an individual with respect to his unemployment (including any portion thereof payable with respect to dependents) under an unemployment compensation law of the United States, of any State, or of the District of Columbia or of the Commonwealth of Puerto Rico.

         ___ 5. Undelivered mail.--Mail, addressed to any person, which has not been delivered to the addressee.

         ___ 6. Certain annuity and pension payments.--Annuity or pension payments under the Railroad Retirement Act, benefits under the Railroad Unemployment Insurance Act, special pension payments received by a person whose name has been entered on the Army, Navy, Air Force, and Coast Guard Medal of Honor roll (38 U.S.C. 1562), and annuities based on retired or retainer pay under Chapter 73 of Title 10 of United States Code.

         ___ 7. Workmen's Compensation.--Any amount payable with respect to compensation (including any portion thereof payable with respect to dependents) under a workmen's compensation law of the United States, any State, the District of Columbia, or the Commonwealth of Puerto Rico.

         ___ 8. Judgments for support of minor ...


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