United States District Court, W.D. Washington, Seattle
L. ROBART, UNITED SIATES DISTRICT JUDGE
the court is Defendant John Yin's request for a hearing
regarding the United States's motion to issue a
continuing garnishee order to Garnishee T. Rowe Price.
(Request (Dkt. # 9-1).) Mr. Yin challenges the United
States's motion (Mot. (Dkt. # 7)) on the grounds that (1)
he did not receive proper and timely service; and (2) the
property held by T. Rowe Price is exempt as a protected
retirement fund. (See generally Request.) Having
considered the submissions of the parties and the relevant
law, the court DENIES Mr. Yin's request (Dkt. # 9-1) and
GRANTS the United States's motion (Dkt. # 7).
April 14, 2017, Mr. Yin was ordered to pay restitution on a
criminal matter in the amount of $3, 445, 589.50. (Fernandez
Decl. (Dkt. # 1-1) at 8-9); see United States v.
Yin, No. CR16-0314RAJ (W.D. Wash. Apr. 14, 2017). The
United States contends that as of July 24, 2017, the balance
remains in Ml. (Mot. at 2.)
20, 2017, the United States applied for an application for a
writ of garnishment. (Appl. (Dkt. #1).) The Honorable Judge
Robert S. Lasnik issued a writ of continuing garnishment as
to T. Rowe Price on June 21, 2017. (6/21/17 Order (Dkt. #
2).) The United States mailed notification of the garnishment
proceeding to Mr. Yin on the same day. (Certificate of
Service (Dkt. # 5).) T. Rowe Price filed an answer to the
writ of garnishment on June 30, 2017, indicating that it had
control, custody, and possession of an Individual Retirement
Account ("IRA") with an approximate value of $149,
117.63 belonging to Mr. Yin. (Answer (Dkt. # 6) at 6.) Mr.
Yin did not file an objection or request for a hearing.
(See generally Dkt.)
August 7, 2017, the United States filed a motion for a
continuing garnishment order directing T. Rowe Price to
deposit the entire amount of non-exempt property from the IRA
to the United States District Court, Western District of
Washington to be credited towards Mr. Yin's criminal
restitution judgment. (Mot. at 2-3.) Mr. Yin requested a
hearing on August 17, 2017. (See Request.)
United States argues that Mr. Yin's request for a hearing
must be denied for two reasons, each of which independently
warrants denial: (1) the request is untimely; and (2) a
retirement fund is not exempt from collection. The court
agrees and addresses each basis for denial in turn.
Timeliness of Mr. Yin's Request
judgment debtor may contest garnishment proceedings by filing
a request for a hearing under 28 U.S.C. § 3202(d) or an
objection under 28 U.S.C. § 3205(c)(5). Both of these
methods are subject to 20-day time limits. See 28
U.S.C. § 3202(d); 28 U.S.C. § 3205(c)(5). Section
3202 provides that a judgment debtor may request a hearing
within 20 days after receiving notice of the initiation of
garnishment proceedings. 28 U.S.C. § 3202(d). A judgment
debtor can also file an objection to the garnishee's
answer and request a hearing under 28 U.S.C. §
3205(c)(5) within 20 days after receipt of the answer. 28
U.S.C. § 3205(c)(5).
filed a request for a hearing on August 17, 2017
(see Request), 57 days after the United States
mailed notice of the proceedings to Mr. Yin (see
Certificate of Service) and 48 days after T. Rowe Price filed
its answer (see Answer). Even considering the time
it would have taken the notice and answer to reach Mr. Yin
via the United States Postal Service, Mr. Yin filed his
request well after the 20-day period during which judgment
debtors must file a written objection or request a hearing.
See 28 U.S.C. §§ 3202(d),
have declined to hear similar untimely requests or
objections. For example, in United States v. Skeins,
an incarcerated pro se defendant filed objections 11
months after the notice of proceedings was mailed and 10
months after the garnishee's answer was filed. No.
C14-1457JLR, 2014 WL 5324880, at *2 (W.D. Wash. Oct. 17,
2014). Finding no excuse for the defendant's failure to
comply with the statutory time limits, the court denied his
submission as untimely. Id.; see also United States v.
Baldonado, No. 2:05-CR-689 TS, 2010 WL 5252415, at *1
(D. Utah Dec. 16, 2010) (denying as untimely defendant's
request for a hearing that "completely missed the 20-day
period); United States v. Reynolds, No. CIVA
3:09-CV-2083-L, 2010 WL 1063430, at *1 (N.D. Tex. Mar. 19,
Yin's only explanation for his delay is that he did not
timely receive notice of the garnishment proceedings.
(See Request at 1.) However, the United States filed
a Certificate of Service that shows Mr. Yin was served by
mail on June 21, 2017. (See generally Certificate of
Service.) Such a "signed return of service constitutes
prima facie evidence of valid service 'which can be
overcome only by strong and convincing evidence.'"
SEC v. Internet Solutions for Bus.,509 F.3d 1161,
1166 (9th Cir. 2007) (quoting O'Brien v. RJ.
O'Brien & Assocs., Inc.,998 F.2d 1394, 1398
(7th Cir. 1993)). Mr. Yin presents no evidence to refute the
United States's Certificate of Service, let ...