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U.S. v. GEORGE

May 16, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
CHERYL GEORGE, DEFENDANT.



The opinion of the court was delivered by: Gershon, District Judge.

ORDER

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.

SO ORDERED.

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.

PROCEDURAL BACKGROUND

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 (ct.doc. 11).

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).

DISCUSSION

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 be garnished.

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 ...


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