United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant's
Pro Se Motion for Modification of Garnishment (Doc.
No. 51). Plaintiff has responded, and the matter is ripe for
criminal conviction was entered against Defendant on
September 22, 1999. Defendant was convicted of Fraudulent
Loan and Credit Application and Aiding and Abetting the Same
in violation of 18 U.S.C. § 1014; Making False
Statements in violation of 18 U.S.C. § 1001; and False
Oath and Claims in violation of 18 U.S.C. § 152.
Defendant was sentenced to twenty-four months imprisonment
and three years supervised release and ordered to pay $282,
078.58 in assessment and criminal restitution. No payment
plan was contained in the initial judgment; rather, the
restitution was due in full immediately. The balance as of
February 14, 2018 was $266, 646.84.
made small voluntary payments while on supervised release and
thereafter, until payments ceased in October 2011. Treasury
Offset Payments were then applied to the restitution in 2012,
2013, 2014, and 2015. The Government negotiated a payment
plan with Defendant of $400 per month beginning November 25,
2015. Defendant failed to make any payments pursuant to this
agreement. Accordingly, the Government initiated garnishment
proceedings in October 2017. Service Professionals of Florida
(the “Garnishee”), Defendant's employer, was
served with a writ of continuing garnishment and filed its
answer on January 23, 2018. Defendant did not make a claim
for any exemptions from garnishment, but she did state that a
twenty-five percent garnishment would cause severe financial
February 12, 2018, the Honorable David S. Cayer, United
States Magistrate Judge, signed an Order of Continuing
Garnishment, ordering the Garnishee to “pay the United
States up to twenty-five percent of Defendant's net
earnings which remain after all deductions required by law
have been withheld and one hundred percent of all 1099
payments, ” continuing such payments “until the
debt to the United States is paid in full or until Garnishee
no longer has custody, possession or control of any property
belonging to Defendant or until further order of this
Court.” (Doc. No. 50).
February 13, 2018, Defendant filed this Motion for
Modification of Garnishment, seeking a reduction to ten
percent of her nonexempt earnings.
to the Federal Debt Collection Procedures Act of 1990,
“[a] court may issue a writ of garnishment against
property (including nonexempt disposable earnings) in which
the debtor has a substantial nonexempt interest and which is
in the possession, custody, or control of a person other than
the debtor, in order to satisfy the judgment against the
debtor.” 28 U.S.C. § 3205(a). If the court finds
that the required procedures for obtaining a writ of
garnishment have been satisfied, “the court shall issue
an appropriate writ of garnishment.” Id.
the first question is whether an “appropriate”
writ of garnishment can be lower that the twenty-five percent
of earnings set in the Order of Continuing Garnishment. As
defined for purposes of the Federal Debt Collection Act of
1990, “‘[n]onexempt disposable earnings'
means 25 percent of disposable earnings, subject to section
303 of the Consumer Credit Protection Act.” 28 U.S.C.
§ 3002. Section 303 of the Consumer Credit Protection
Act, in turn, states that “the maximum part of the
aggregate disposable earnings of an individual for any
workweek which is subjected to garnishment may not exceed 
25 per centum of his disposable earnings for that
week.” 15 U.S.C. § 1673(a). The Government agrees
that twenty-five percent “is the maximum amount
permitted for government seizure.” (Doc. No. 52, 4
n.1); see also United States v. Lee, 659 F.3d 619,
621 (7th Cir. 2011) (finding that twenty-five percent is the
“ceiling” for garnishment of a debtor's
disposable earnings); United States v. George, 144
F.Supp.2d 161, 164-65 (E.D.N.Y. 2001) (finding that “a
25% garnishment of disposable income (as opposed to any
lesser amount) is not mandatory, ” but rather that
“all the pertinent statutory language indicates that
25% is a maximum figure”). Thus, the Court concludes
that while twenty-five percent is the maximum garnishment
that can be imposed on disposable earnings, a Court may
impose a lower rate.
second question is whether this Court has the authority to
modify an order of garnishment setting a twenty-five percent
garnishment. The Government acknowledges that the Court
retains authority to modify a court-ordered schedule for
repayment of an order of restitution “as the interests
of justice require.” 18 U.S.C. § 3664(k).
Similarly, the Government acknowledges that under the Federal
Debt Collection Procedures Act of 1990, the Court “may
at any time on its own initiative or the motion of any
interested person . . . make an order denying, limiting,
conditioning, regulating, extending, or modifying the use of
any enforcement procedure under this chapter.” 28
U.S.C. § 3013. This includes an order of garnishment.
Government argues that § 3013, however, is only intended
to apply in limited circumstances, where a defendant is
subject to abuse by the Government. The Government relies
heavily on a case from the District of South Dakota in
reaching this conclusion. See United States v.
Lawrence, 538 F.Supp.2d 1188, 1195 (D.S.D. 2008). Other
cases, however, have not drawn so strict a line. In
United States v. Kaye, 93 F.Supp.2d 196 (D. Conn.
2000), the court found that § 3013 should not be
“so limited, ” but rather that a concept of
“reasonableness” should be applied to the
exercise of authority under § 3013. Id. at 198;
see also United States v. Dover, No. 4:02-50001,
2016 WL 806708, at *4 (E.D. Mich. Mar. 2, 2016) (applying a
reasonableness standard); United States v. Ogburn,
499 F.Supp.2d 28, 31 (D.D.C. 2007) (same). This Court agrees
with the latter line of cases and finds that the plain
language of § 3013 provides broad discretion for a court
to modify a writ of garnishment based on the reasonableness
of the circumstances.
factor of the reasonableness of an enforcement procedure is
the financial situation of the Defendant. The Federal Debt
Collection Procedures Act of 1990 specifically allows for
“discovery regarding the financial condition of the
debtor” in “an action or proceeding under
subchapter B or C.” 28 U.S.C. § 3015(a).
Garnishment is a post-judgment remedy contained in subchapter
C. 28 U.S.C. § 3205. Further, in United States v.
Crowther, 473 F.Supp.2d 729, 731 (N.D. Tex. 2007), the
court found that it had “the discretion to consider an
objection that a garnishment of 25% of disposable earnings is
inequitable under the judgment debtor's individual
circumstances.” Id. at 731. While the court in
that case found that the debtor did not follow correct
procedures for an objection to the garnishment, it noted that
there appeared “to be nothing that would prevent
Crowther from now moving to modify the writ of garnishment
under 28 U.S.C. § 3013.” Id. at 732, n.3.
This is the exact procedural posture of Defendant's
motion for modification, and accordingly the Court finds that
it has the authority to consider Defendant's financial
situation in ruling on a motion for modification under §
third and final question at issue is whether a modification
of the current garnishment in this case is reasonable.
Defendant claims that a twenty-five percent garnishment
subjects her to financial hardship, such that she is not able
to meet all of her necessary financial obligations. The
Government claims that Defendant's stated financial
concerns about her service dog, electric bills, auto loans,
and medical support for her parents are not reasonable
expenses. The Government argues that Defendant's roommate
pays the electric bills, that the payments on Defendant's
auto loans are not necessary for Defendant, that Defendant
has not proven that her dog is a certified service dog, and
that Defendant's parents are not dependents. The Court
agrees that Defendant has not proven that she personally pays
a portion of the electric bills, that the auto loan for her
daughter's car is a reasonable expense, or that her dog
is indeed a certified service dog. However, the Court finds
that Defendant's financial support of her aging parents
(by providing groceries) ...