Simmons v. Simmons, No. 5:2008cv00517 - Document 112 (E.D.N.C. 2014)
Court Description: ORDER denying without prejudice 108 Motion to Enforce Judgment - Plaintiff may apply for a writ of execution to collect his restitutionary damages from defendants. Signed by Julie A. Richards, Clerk of Court on 03/27/2014. (Baker, C.)
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Simmons v. Simmons Doc. 112 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:08-CV-517-FL GEOFFREY H. SIMMONS, JR., Plaintiff, v. GEOFFREY H. SIMMONS, SR. and SIMMONS LAW FIRM, Defendants. ) ) ) ) ) ) ) ) ) ) ORDER On March 6, 2013, this court granted summary judgment to Geoffrey H. Simmons, Jr. ("plaintiff') on his claim for breach of contract, dismissed his remaining claims, and ordered Geoffrey H. Simmons, Sr. and the Simmons Law Firm ("defendants") to pay restitutionary damages in the amount of $1,400.00 [D.E. 106]. Thereafter, the clerk entered judgment in favor of plaintiff [D.E. 107]. Defendants did not seek post-judgment relief or file an appeal. On August 12, 2013, the clerk received a letter from plaintiff, indicating that defendants failed to respond to his demand for payment [D.E. 108]. Plaintiff also requested the court's assistance in collecting the restitutionary damages. Plaintiffs request is construed as a motion to enforce judgment. Defendants did not respond, and the matter is ripe for determination. At the direction of the court, plaintiffs motion to enforce judgment has been referred to the undersigned for disposition. Plaintiff, who is self-represented, filed the motion to enforce judgment because defendants allegedly ignored his demand letter. However, the process to enforce a judgment to collect money damages is through a writ of execution. Under Rule 69(a)(1) of the Federal Rules of Civil Dockets.Justia.com Procedure, "[a] money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution- and in proceedings supplementary and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent that it applies." Fed. R. Civ. P. 69(a)(1). In the absence of an applicable federal statute, North Carolina law governs plaintiffs efforts to collect the judgment. The local civil rules of this court provide that "[a]ll acts and duties pertaining to the seizure of person or property as provided by the State ofNorth Carolina authorized to be done by a judge or clerk of the state may be done in like cases by a judge of this court or the clerk of this court, respectively." Local Civil Rule 64.1. To proceed with his collection efforts, plaintiff may file with the clerk of this court an application for writ of execution. The writ of execution package is posted on the court's website at http://www.nced.uscourts.gov/forms. The package includes the proposed writ of execution, notice of right to have exemptions designated, and notice to claim exempt property (statutory exemptions). A copy of the writ of execution package is attached to this order. Plaintiff must complete and file the forms in this case and serve defendants pursuant to Rule 5 of the Federal Rules of Civil Procedure. For the reasons stated, the motion to enforce judgment is denied without prejudice [D.E. 108]. Plaintiff may apply for a writ of execution to collect his restitutionary damages from defendants. so ORDERED. ~.-rThis _ _ day of March 2014. 2 ATTACHMENT 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA Plaintiff Address Case Number: EXECUTION VERSUS (Rule 69, F.R.Cv.P. and G.l-313(1); GS.IC, Art. 16) Defendant Address Defendant Address TO THE UNITED STATES MARSHAL: By the terms of a judgment rendered in favor of - - - - - - - - - - - - - - - - - - - - - - against, - - - - - - - - - - - - - - - - - - - - - - - - the following sums are now due: Principal $ 0 Interest to date 0 Court Costs $ 0 Other Total: $ 0 0 For the United States Marshal's fees (see 28 U.S.C. ยง 1921)- $_0 _ _ _ _ _ _ _ _ _ _ _ _ . Post-Judgment _ interest is computed on the principal at the legal rate from the date shown below: Date from which interest due: Legal rate of interest: Date Judgment entered on docket: You are commanded to satisfy the judgment mJ By demanding payment from the defendant [] Out of the personal property ofthe defendant, and if sufficient property cannot be found, then out of the real property belonging to the defendant on the day the judgment was entered on the docket of this Court as shown above or any time after that date. [] Except as to property set off as exempt (a list of which is attached) out of the personal property of the defendant within your district, and if sufficient personal property cannot be found, then out of real property belonging to the defendant on the day the judgment was docketed in this court as shown above or any time after that date. [] Out of the property listed below which is excepted by law from the exemptions: Description of property excepted from exemptions (if applicable) Additional order for satisfying judgment Date I s s u e d : - - - - - - - - - - - - - - This writ must be returned within 90 days after the date of issue. Signature:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ mJ [] EDNC (12/09) Clerk, U.S. District Court Deputy Clerk .. EASTERN DISTRICT OF NORTH CAROLINA FileNo. UNITED STATES DISTRICT COURT Name ojPiaintijj NOTICE OF RIGHT TO HAVE EXEMPTIONS DESIGNATED VERSUS Name oj Defendant N.C.G.S IC-1603 TO: TO: Name and Address of First Judgment Debtor Name and Address of Second Judgment Debtor A judgement has been entered against you in the case captioned above in which you have been ordered to [J tum over various household belongings to the judgment creditor. The judgment creditor (person who has the judgment against you) is now seeking to collect this judgment and has asked me to give you notice of your rights. Under the Constitution and laws of North Carolina, you have the right to exempt from the collection of the judgment certain of your property (in other words, to keep it from being taken away from you). If you wish to keep your exempt property, you MUST fill out the attached Motion to Claim Exempt Property and mail or take it to the Clerk of Court at the address listed below. You MUST also mail or take a copy to the judgment creditor at his address listed below. The law gives you another option of requesting, in writing, a hearing before the Clerk to claim your exemptions. If you make a written request for a hearing, you will be notified of the time and place ofthe hearing when you may claim your exemptions. [J pay money over It is important that you respond to this Notice no later that twenty (20) days after it was served on you because you will lose valuable statutory rights if you do nothing. If you do not respond, you will give up your right to statutory exemptions and the judgment creditor may be able to take any or all of your property to satisfy the judgment. You have certain constitutional rights you may claim if you give up your statutory rights. You may wish to consider hiring an attorney to help you with this proceeding to make certain that you receive all the protections to which you are entitled. Name and Address of Judgment Creditor or Attorney Date Signature Clerk of Court Telephone No: Page I of7 (EDNC- Dec. 2009) Address of the Clerk of Court NOTICE TO THE JUDGMENT CREDITOR You may serve this Notice and the Motion to Claim Exempt Property by mailing a copy of each, registered or certified mail, return receipt requested, addressed to the judgment debtor. To prove service, you must file an affidavit (notarized by a notary public) with the Clerk asserting that (I) a copy of the notice of rights and Motion to Claim Exempt Property was deposited in the U.S. Mail for mailing by registered or certified mail, return receipt requested; (2) it was in fact received as evidenced by the attached registry receipt or other evidence of delivery; and (3) the genuine receipt or other evidence of delivery is attached. You must attach the U.S. Mail delivery receipt to the affidavit. Alternatively, service of the motion may be effected by any person who is not a party and who is at least 18 years of age following the procedures set forth in Federal Rules of Civil Procedures 4(e)(2). If your attempted service by certified or registered mail or personal service fails, you may then serve the judgment debtor by mailing a copy of the notice and motion to him at his last known address. To prove service, you must file a certificate with the Clerk that the notice and motion were served, indicating why you used such service, the date the notice was mailed and the address to which it was mailed. Remember, you may NOT use service by regular first class mail until you have tried first to serve the judgment debtor personally or by certified or registered mail and such service was unsuccessful. RETURN OF SERVICE I certify that this Notice and a copy of a motion to claim exempt property were received and served as follows: JUDGMENT DEBTOR 1 Date Served Name of Judgment Debtor mJ By delivering to the judgment debtor named above a copy of the notice and motion to claim exempt property. Cl By leaving a copy of the notice and motion to claim exempt property at the dwelling house or usual place of abode of the judgment debtor named above with a person of suitable age and discretion then residing therein. Name and Address of Person with Whom Copies Left Cl Other manner of service (specify) JUDGMENT DEBTOR 2 Name of Judgment Debtor Date Served mJ By delivering to the judgment debtor named above a copy of the notice and motion to claim exempt property. Cl By leaving a copy of the notice and motion to claim exempt property at the dwelling house or usual place of abode of the judgment debtor named above with a person of suitable age and discretion then residing therein. Name and Address of Person with Whom Copies Left Cl Other manner of service (specify) Signed: Page 2 of7 (EDNC- Dec. 2009) Person Making Return (Printed) . EASTERN DISTRICT OF NORTH CAROLINA UNITED STATES DISTRICT COURT FileNo. Judgment Creditor (Plaintiff) NOTICE TO CLAIM EXEMPT PROPERTY (STATUTORY EXEMPTIONS) VERSUS Judgment Debtor (Defendant) N.C.G.S. IC -160J(c) NOTE TO DEBTOR (DEFENDANT): The Clerk of Court cannot fill out this form for you. assistance, you should talk with an attorney. Ifyou need I, the undersigned, move to set aside the property claimed below as exempt. I. I am a citizen and resident of and was born on 2. IE] I am married to []I am not married. 3. My current address is 4. The following persons live in my household and are dependent on me for support: Age Name(s) of Person(s) Dependent on Me Relationship 5. I wish to claim as exempt (keep from being taken) my interest in the following real or personal property that I use as a residence. I also wish to claim my interest in the following burial plots for myself or my dependents. I understand that my total interest claimed in the residence and burial plots may not exceed $35,000.00 ($60,000 if I am 65 years of age or older and I previously owned my property as a tenant by entireties or as a join tenant with rights of survivorship and my former co-owner is deceased). the Street Address of Residence County Where Property Located Page 3 of 7 (EDNC- Dec. 2009) Township No. by Which Tax Assessor Identifies Property Legal Description (Attach a copy ofyour deed or other instrument of conveyance or describe property in as much detail as possible. Attach additional sheets if necessary.) Name(s) of Owner(s) of Record of Residence Estimated Value of Residence (What You Think You Could Sell It For) Amount of Lien(s) and Name(s) and Address(es) of Lienholder(s) (How much money is owed on the property and to whom.) Current Amount Owed $ $ Location of Burial Plots Claimed Value of Burial Plots Claimed $ 6. I wish to claim the following personal property consisting of household furnishings, households goods, wearing apparel, appliances, books, animals, crops or musical instruments as exempt from the claim of my creditors (in other words, keep them from being taken from me). These items of personal property are held primarily for my personal, family or household use. I understand that I am entitled to personal property worth the sum of$5,000.00. I understand that I am also entitled to an additional $1,000.00 for each person dependent on me for support, but not to exceed $4,000.00 for dependents. I further understand that I am entitled to this amount after deducting from the value of the property the amount of any valid lien or security interest. Property purchased within 90 days of this proceeding may not be exempt. (Some examples of household goods would be TV, appliances, furniture, clothing, radios, record players.) Value of Debtor's Amount of Lien (Defendant's) Or Security Interest (Fair Market Fair Market Value Less Amount Value (What You Interest (Amount Name(s) of Lienholders(s) Owed) Owed on Property) (To Whom Money is Owed) Could Sell It For) Item of Property $ $_ $ $_ $ $ $ $ $ $ $ _$_ $ $ $ 7. I wish to claim my interest in the following motor vehicle as exempt from the claim of my creditors. I understand that I am entitled to my interest in one motor vehicle worth the sum of $3,500.00 after deduction of the amount of any valid liens or security interests. I understand that a motor vehicle purchased within 90 days of this proceeding may not be exempt. Year Name(s) of Title Owner of Record Make and Model I Fair Market Value (What You Could Sell It For) $ Amount of Liens (Amount Owed) $ Page 4 of7 (EDNC- Dec. 2009) Name(s) of Lienholder(s) or Record (Person(s) to Whom Money is Owed) Value of Debtor's (Defendant's) Interest (Fair Market Value Less Amt. Owed) $ 8. (This item is to claim any other property you own that you wish to exempt.) I wish to claim the following property as exempt because I claimed residential real or personal property as exempt that is worth less than $35,000.00 or I made no claim for a residential exemption under section (5) above. I understand that I am entitled to $5,000.00 in any property only ifl made no claim under section (5) above or a claim that was less than $35,000.00 under section (5) above. I understand that I am entitled to claim any unused amount that I was permitted to make under section (5) above up to a maximum of$5,000 in any property. (Examples: ifyou claim $34,000.00 under section (5), $1,000.00 allowed here; if you claim $30,000.00 under section (5), $5,000 allowed here; ifyou claim $35,000 under section (5), no claim allowed here.) I further understand that the amount of my claim under this section is after the deduction from the value of this property of the amount of any valid lien or security interests and that tangible personal property purchased within 90 days of this proceeding may not be exempt. Fair Value of Debtor's Item Of Market (Defendant's) Personal Property Claimed Value Amount of Liens Name(s) of Lienholder(s) Interest $ $ $ $ $ $ $ $ $ Real Property Claimed (I understand that if I wish to claim more than one parcel, I must attach additional pages setting forth the following information for each parcel claimed as exempt.) -street Aadress EstimateaT'a!ue Of Property (What You Could Sell !iFor) $ No. by W7iiC!iTax Assessor Identifies Property County Township I other instrument of conveyance or describe the property in as much detail as Description (Attach a copy ofyour deed or possible Name and Address of Lienholder Current Amount Owed $ Name and Address of Lienholder Current Amount Owed $ (Attach additional sheets for more lienholders) 9. I wish to claim the following item of health care aid necessary for mlmyself[Jmy dependents. Item Purpose I 0. I wish to claim the following implements, professional books, or tools (not to exceed $2,000.00), of my trade or the trade of my dependent. I understand that such property purchased within 90 days of this proceeding may not be exempt. Item Estimated Value (What You Could Sell It For) What Business or Trade Used In $ $ '!; Page 5 of7 (EDNC- Dec. 2009) 11. I wish to claim the following life insurance policies whose sole beneficiaries are my spouse and/or children as exempt Name of Insurer Policy No. Beneficiary(ies) 12. I wish to claim as exempt the following compensation that I received or which I am entitled for the personal injury of myself or a person upon whom I was dependent for support, including compensation from a private disability policy or annuity, or compensation that I received for the death or a person upon whom I was dependent for support. I understand that this compensation is not exempt from claims for funeral, legal, medical, dental, hospital or health care charges related to the accident or injury that resulted in the payment of the compensation to me. I understand that ifl wish to claim more than one amount of compensation exempt, I must attach additional pages setting forth the following information for each amount of compensation claimed exempt. Amount of Compensation Method of Payment: Lump Sum or Installments (If Installments, State Amount, Frequency and Duration of Payments) $ Location/Source of Compensation Name ofPerson(s) injured or killed giving rise to compensation Unpaid Debts arising out of the injury or death giving rise to compensation (include names, addresses, services rendered and amount of debt) 13. I wish to claim as exempt the following retirement plans that I have that are individual retirement plans as described in the Internal Revenue Code or that are treated in the same manner as an individual retirement plan under the Internal Revenue Code, including individual retirement accounts and Roth retirement accounts as described in section 408(a) and section 408A of the Internal Revenue Code, individual retirement annuities as described in section 408(b) of the Internal Revenue Code, and accounts established as part of a trust described in section 408(c) ofthe Internal Revenue Code. Type of Retirement Account Name of Account Account Number 14. I wish to claim as exempt the following funds I hold in a college savings plan that is qualified under section 529 of the Internal Revenue Code, not to exceed $25,000. I understand that this plan must be used for the child's college expenses. I understand I may not exempt any funds I placed in this account within the preceding 12 months, except to the extent that any contributions were made in the ordinary course of my financial affairs and were consistent with my past pattern of contributions. College Savings Plan Page 6 of7 (EDNC- Dec. 2009) Account Number Name(s) of Child(ren) Beneficiaries 15. I wish to claim as exempt the following retirement benefits to which I am entitled to under the retirement plans of other states and governmental units of other states. I understand that these benefits are exempt only to the extent these benefits are exempt under the laws of the state or governmental unit under which the benefit plan was established. State/Governmental Unit Name of Retirement Plan Identifying Number 16. I wish to claim as exempt any alimony, support, separate maintenance, or child support payments or funds that I have received or that I am entitled to receive. I understand that these payments are exempt only to the extent that they are reasonably necessary for my support or for the support of a person dependent on me for support. Type of Support Person Paying Support Amount & Location of Funds 17. The following is a complete listing of all of my assets that I have not claimed as exempt under any of the preceding paragraphs. Item Location Estimated Value $ $ $ $ 18. The following is a complete list of persons or business that have judgments for money against me. 19. I certify that the above statements are true. Date Signature of Judgment Debtor (Defendant) 20. A copy of this Motion was served on the judgment creditor (plaintiff) by: 1BJ delivering a copy to the judgment creditor (plaintiff) personally. D delivering a copy to the judgment creditor's attorney. D depositing a copy of this motion in a post-paid properly addressed wrapper in a U.S. Mail, addressed to the judgment creditor (plaintiff) at the address shown on the notice of rights served on me. []depositing a copy of this Motion in a post-paid properly addressed wrapper in a U.S. Mail, addressed to the judgment creditor's (plaintiffs) attorney at the following address: Date Signature of Judgment Debtor/Attorney for Debtor (Defendant) Address and Phone No. ojAttorney jar Debtor (Defendant) Page 7 of7 (EDNC- Dec. 2009)
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