United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge
before the Court is third-party Ellen Suzann Swenson's
Objection and Claim of Exemptions pursuant to a writ of
garnishment issued against a checking account with Idaho
Independent Bank (“IIB”), which is related to a
judgment for restitution entered against her spouse, Douglas
L. Swenson, in a criminal case, United States v.
Swenson, 1:13-CR-00091-BLW. The objection originally
addressed three accounts - IIB accounts ending in numbers
5784, 9227 and 6781. However, as explained in more detail
below, only account 5784 is still at issue.
facts are largely undisputed. In an underlying criminal case,
defendant Douglas L. Swenson was ordered to pay restitution
pursuant to the Mandatory Victim's Restitution Act
(“MVRA”), 18 U.S.C. § 3666A in the amount of
$180, 632, 025.00 (Dkt. 816). On July 9, 2018, the United
States filed an ex parte application for writs of
garnishment (Dkt. 969) with respect to four of Mr. and Mrs.
Swenson's various bank accounts, including IIB accounts
ending in 6781, 9227, and 5784 (Dkt. 975). The Clerk of Court
issued writs of garnishment on these accounts on July 19,
2018 (Dkt. 975).
filed an answer to the writs of garnishment indicating that
Mrs. Swenson has two checking accounts and one savings
account held under her own name. (Dkt. 978). Mrs. Swenson
then filed an objection, claim of exemptions, and request for
hearing on three accounts claiming that: (1) account ending
in 5784 is separate property consisting of social security
funds; and (2) accounts ending in 9227 and 6781 are separate
property consisting of IRA funds. Id.
August 16, 2018, the United States filed a Motion to Release
Specific Accounts from the Ex Parte Writ of Garnishment (Dkt.
980) because all parties stipulated to Mrs. Swenson receiving
$20, 163 from the funds in Account No's ending in 9227
and 6781 (Dkt. 898). Mrs. Swenson responded to the Motion
without objection (Dkt. 981). On August 24, 2018, the Court
filed an Order granting the release of funds from IIB
Accounts ending in 9227 and 6781 (Dkt. 983).
the Court will only address Mrs. Swenson's objection and
claim of exemptions to the United States' Ex
Parte Writ of Garnishment on IIB checking account ending
Federal Debt Collection Procedures Act of 1990
(“FDCPA”) “provides the exclusive civil
procedure for the United States to recover on a debt.”
28 U.S.C. § 3001; see also United States v.
Webb, 2014 WL 2153954 at *3 (D. Ariz. May 15, 2014). The
FDCPA defines “debt” to include “[a]n
amount that is owing to the United States on account of
… restitution ….” 28 U.S.C. §
3002(3)(B); see also United States v. Mays, 430 F.3d
963, 965 (9th Cir. 2005). The FDCPA further clarifies that it
“shall preempt State law to the extent such law is
inconsistent.” 28 U.S.C. § 3003(d).
procedures the United States must follow to collect a
judgment by garnishment are provided by 28 U.S.C. §
3205. Under the FDCPA, the judgment-debtor must be given
notice of the commencement and served a copy of the writ of
garnishment. 28 U.S.C. § 3202(b). The United States must
also serve the garnishee with a copy of the writ. 28 U.S.C.
§ 3205(c)(3). The copy served to the garnishee
“shall be accompanied by-(A) an instruction explaining
the requirement that the garnishee submit a written answer to
the writ.” Id. The copy of the writ served to
the judgment debtor “shall be accompanied by-(B)
instructions to the judgment debtor for objecting to the
answer of the garnishee and for obtaining a hearing on the
objections.” Id. “Within 20 days after
receipt of the answer, the judgment debtor. . . may file a
written objection to the answer and request a hearing.”
Id. The party objecting bears the burden of proof.
garnishment hearing is held, the issues that may be properly
considered at the hearing are limited as a matter of law.
United States v. Pugh, 75 Fed.Appx. 546, 547 (8th
Cir. 2003) (a hearing concerning the enforcement of a
judgment is limited to circumstances where the debtor has
claimed a probable validity of an exemption, challenged
compliance with statutory requirements, or the judgment has
been obtained in default). In this case, the order of
restitution was imposed after a guilty verdict, and not as a
default. There is no claim that the Government failed to
comply with the statutory requirements for the garnishment
process. Therefore, the only issue before the Court is
whether a spouse's social security payments are a valid
exemption under the MVRA.
Idaho, it is presumed that “all property acquired by
either a husband or wife after marriage is community
property.” In re Herter, 456 B.R. 455, 465
(Bankr. D. Idaho 2011) (citing Idaho Code § 32-906);
Banner Life Ins. Co. v. Mark Wallace Dixson Irrevocable
Tr., 206 P.3d 481, 488 (Idaho 2009); Estate of Hull
v. Williams, 885 P.2d 1153, 1157 (Idaho Ct. App. 1994)
(“All property acquired during the course of a marriage
is presumed to be community property”).
spouse claims that property is separate, that spouse has the
burden of establishing that the property is separate with
“reasonable certainty and particularity.”
Estate of Hull v. Williams, 885 P.2d 1153, 1157
(Idaho Ct. App. 1994) (citing Houska v. Houska, 512
P.2d 1317, 1319 (Idaho 1973)); Banner Life, 206 P.3d
at 488. “This may be done by establishing that the
property was acquired by one spouse prior to the marriage, by
tracing the funds used to acquire the asset to a separate
property source, or by showing that the property was acquired
by gift, bequest or devise during the marriage.”
Estate of Hull, 885 P.2d at 1157; Banner
Life, 206 P.3d at 488. “Where the source of an
asset is unknown or ...