The opinion of the court was delivered by: Gershon, District Judge.
The unopposed Report and Recommendation of Magistrate Judge
Marilyn Dolan Go dated April 6, 2001, is adopted in its
entirety. The Clerk of Court is directed to amend the amount of
the Judgment entered on June 11, 1998 to the total sum of
$2,775.54. Plaintiff is entitled to recover from defendant
Cheryl Y. George indebtedness of $1,453.93, plus a statutory 10%
surcharge of $145.39, and any additional statutory interest on
those amounts accruing after April 30, 2001.
Plaintiff's application for an order of garnishment is granted
as modified in accordance with the Report and Recommendation of
Judge Go. The court has signed a Garnishee Order in the amount
of 10% of defendant's net disposable weekly earnings. Payments
shall continue to be made until the debt to the plaintiff set
forth in this Order has been paid in full or as
otherwise provided in the Garnishee Order.
REPORT AND RECOMMENDATION
The application of plaintiff United States of America for an
order of garnishment of defendant Cheryl Y. George's wages to
satisfy a judgment entered herein has been referred to me by the
Honorable Nina Gershon for report and recommendation.
By complaint dated October 27, 1997, the plaintiff sought to
recover amounts due on student loans on which defendant had
allegedly defaulted (court document ("ct. doc.") 1). On June 11,
1998, this court (Gershon, J.) issued a default judgment for the
sum of $3,041.53, plus interest at the legal rate in effect on
the date of the judgment (ct.doc. 6).
On June 20, 2000, plaintiff applied for a writ of garnishment,
serving the writ on defendant and her employer, the New York
State Commission of Human Rights. (ct.docs.7, 8). The New York
State Commission of Human Rights ("garnishee") responded by
confirming that defendant was within its employ, and that she
had pre-tax earnings of $41,332.00 (ct.doc. 9). Defendant
responded on approximately July 17, 2000 by returning the
Clerk's Notice of Post Judgment Garnishment with the box on that
form checked to request a hearing. By Order dated October 2,
2000, Judge Gershon referred plaintiffs application for an order
of garnishment and all other post-judgment matters to me
By Order dated November 29, 2000, in response to defendant's
request, this Court set a hearing date of December 15, 2000
(ct.doc. 12). The notice of hearing was sent to defendant by
mail at the same address as the other papers in this matter (to
which defendant responded by requesting a hearing). Defendant
failed to appear at the hearing and did not request
rescheduling, or otherwise respond to the writ and order which
had been served on her (ct. doc 13).
Defendant has not challenged the judgment entered against her
nor presented any argument that any portion of her earnings is
properly exempt from garnishment. Thus, the only issue to be
determined is the appropriate percentage of her wages that may
Plaintiff seeks an order permitting garnishment of 25% of
defendant's disposable wages, relying on the provisions of the
Federal Debt Collection Procedures Act ("FDCPA"),
28 U.S.C. § 3205(a) et seq., which permits a court to garnish up to 25% of
nonexempt disposable earnings in order to repay a consumer debt.
See 28 U.S.C. § 3002(9). However, the provisions of the FDCPA
are not controlling in this case. In 1991, Congress amended the
Higher Education Act of 1965 ("HEA") to authorize the Secretary
of Education or guaranty agencies to collect a defaulted student
loan by administrative garnishment of up to ...