BASIL H. COUTRAKON, U.S. Bankruptcy Judge
This matter is before the Court on the Motion of Deborah Ann Freeman ("Debtor") to Stay Writ of Non-Wage Garnishment, the Response thereto filed by the United States of America ("USA"), the Motion of John H. Germeraad, Chapter 13 Trustee ("Trustee") to Enjoin the United States of America or to Find Violation of the Automatic Stay and for Sanctions, Debtor's Motion to Enjoin the United States of America or to Find Violation of the Automatic Stay and for Sanctions, and USA's Response thereto.
Debtor filed her voluntary Chapter 13 petition in bankruptcy on November 12, 1998, and listed Howard (Ted) Furkin ("Furkin") as a creditor. According to her Schedule F, Furkin's claim totaled $6,664.94 and consisted of past due and unpaid rental payments owed by Debtor to Furkin dating back to 1995. Debtor lives in a residence owned by Furkin; Debtor's rent is currently $525 per month.
Debtor's Chapter 13 Plan was filed on November 30, 1998. Debtor proposed to pay Trustee the sum of $260 per month for 36 months. A confirmation hearing was held on January 8, 1999, an Order of Confirmation was entered on January 27, 1999, and an Amended Order of Confirmation was entered on January 28, 1999. Under the terms of the confirmed Plan, Debtor was to continue to make her regular monthly rent payments directly.
On February 25, 1999, Debtor filed her Motion to Stay Writ of Non-Wage Garnishment; a hearing was held on the Motion on March 26, 1999, after which the parties submitted their briefs and other motions which are presently before the Court. The material facts in this case are essentially undisputed.
On December 11, 1995, the U.S. District Court for the Central District of Illinois ordered Furkin to pay restitution of $2,149,238, a fine of $331,491.66 and a special assessment of $250. USA commenced collection efforts immediately thereafter and has collected approximately $100,000.
Counsel for USA became aware that Furkin was making a claim in Debtor's bankruptcy for back rent and, upon further investigation, counsel for USA learned that Debtor was obligated to and was paying Furkin, his agent, representative, or assignee $525 per month in rent.
On February 11, 1999, USA filed an Application for Writ of Non-Wage Garnishment and mailed a copy of the application to Debtor and Furkin. On February 12, 1999, the District Court granted the application and ordered the Clerk of the Court to issue the Writ. The Writ was issued on February 16, 1999, and directed Debtor, the garnishee, to answer within 10 days and to withhold property, being the ongoing monthly rent payments owed to Furkin. The Answer requests information on Debtor's rent payments, including the amount, when and to whom made, and whether there is an oral or written lease. The Writ further provides that if the garnishee fails to answer the Writ or withhold property, USA may petition the Court for an order requiring the garnishee's appearance before the Court. The Writ and supporting documents were served on Debtor on February 22, 1999, and on Furkin on February 26, 1999. Debtor has not answered the garnishment, and no action has been taken against her.
USA is not making a claim against or trying to collect the rent arrearage owed by Debtor to Furkin.
On February 25, 1999, Debtor's counsel filed his Motion to Stay Writ of Non-Wage Garnishment. Thereafter, Trustee and Debtor's counsel filed their Motions to enjoin USA, to find that USA violated the automatic stay, and to award sanctions. The contentions raised in Trustee's Motion and in Debtor's Motion are substantively identical.
Debtor and Trustee contend that USA has violated the automatic stay provisions of 11 U.S.C. § 362 (a) (2), (3), (4), and (5), which provide in part as follows:
(a) . . . (A) petition . . . operates as a stay, applicable to all entities of —
. . .
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title(.)
Debtor and Trustee contend that USA's attempts to garnish Debtor's rent payments to Furkin or his agent, representative, or assignee violate each of these four subsections of Section 362 (a) of the Bankruptcy Code. Debtor and Trustee assert that USA, by its non-wage garnishment, is seeking Debtor's property or property of the estate to satisfy a pre-petition judgment against Furkin, and that this conduct violates the automatic stay provisions of Section 362 (a)
The validity of Debtor and Trustee's analysis is dependent upon the fact that the property in question is property of the Debtor or property of the estate, and the Court finds that it is neither. The garnishment proceeding by USA is to enforce a monetary judgment against a criminal defendant, Furkin, by taking Furkin's property, being rent payments, that are owed to Furkin, and become payable to him, his agent, representative, or assignee, by Debtor. USA does not have, nor does it claim to have, any claim against the Debtor or her property. A garnishment proceeding is by its very definition an action to collect property of the defendant (in this case Furkin) in the hands of a third party (in this case Debtor). If the property at issue were the Debtor's and not Furkin's, then there could be no garnishment. Clearly, Debtor is obligated to make the monthly rental payments in order to retain her tenancy. Once the rent payments are made, they are no longer property of the estate. Because USA's efforts are not against Debtor, her property, or property of the estate, there is no violation of Section 362 (a)
USA correctly points out that Furkin owes a criminal monetary judgment to USA. The $331,491.66 fine and $2,149,238 restitution is part of Furkin's criminal sentence. 18 U.S.C. § 3551 (h), 3556. USA has a duty to collect Furkin's fine and restitution. 18 U.S.C. § 3612 (c), 3613 (a) (f), 3664 (m) (1) (A). USA initiated this garnishment proceeding against Furkin to enforce collection of Furkin's judgment from the ongoing rental payments that are owed to him by Debtor. The Federal Debt Collection Procedures Act, 28 U.S.C. § 3205, permits USA to collect a post-judgment debt owed by a defendant by applying for a writ of garnishment against property in which the defendant has an interest and which property is in the custody and control of a person other than the defendant. 28 U.S.C. § 3205.
When Debtor pays her rent to Furkin, his agent, representative, or assignee, those rental payments belong to Furkin, not Debtor. Debtor's bankruptcy schedules indicate that she is paying $525 per month rent to Furkin. The goal of the garnishment is to obtain payment to USA of this $525 that Debtor pays to Furkin. At the current stage in the garnishment proceedings, however, Debtor is only required to file an answer and withhold any rent payments belonging to Furkin. 28 U.S.C. § 3205 (c) (3). Debtor's answer would show whether, in fact, Debtor's rent payments are to Furkin, his agent, representative, or assignee. Depending on Debtor's answer, USA assures that the garnishment would either be dismissed (if the rent payments do not belong to Furkin), or, if appropriate, there would be an order to turn the rental payments (which would be Furkin's property, not Debtor's) over to USA. 28 U.S.C. § 3205 (c) (7)
Assuming that Debtor is in fact paying the rent that she says she pays, the garnishment would merely take the $525 that the Debtor would pay to Furkin, and would require that $525 to be paid to USA. Whether Debtor pays the $525 rent to Furkin, his agent, representative, or assignee, as she does now, or pays it to USA through the garnishment, it will still only cost Debtor $525. Through garnishment, USA is merely stepping in the shoes of Furkin and taking the rent payments that would otherwise be Debtor's. The garnishment does not affect the amount of money Debtor owes or would have after making her rent payments.
Trustee and Debtor allege that the non-wage garnishment of Debtor's rent payments to Furkin, which are made directly and not through Trustee, would interfere with the administration of Debtor's bankruptcy case. Trustee and Debtor argue that USA's actions will cause "havoc", that USA's actions are "immoral as well as illegal", and "will also cause the possible filing of a foreclosure by the mortgage company that holds the mortgage" on the property.
First, the diversion by garnishment of Debtor's $525 rent payments from Furkin to USA would not impact Debtor's earnings or the administration of her plan. As indicated above, the Debtor remains obligated only for the same amount of money in exchange for the same tenancy rights in the property. If she vacates the property, her obligation ceases. As for the contention that her rent payments are necessary to pay the mortgage on the property, this fact, if it is a fact, is not instructive, nor is it a basis for prohibiting USA from collecting Furkin's property, the monthly rent payments. Debtor has no ownership interest in the real estate, nor any long-term written lease so far as the Court knows, so she has been, is now, and will be subject to having her tenancy terminated with reasonable notice. Her possible eviction from the premises is no more disruptive, and causes no more havoc, than that caused to any other renter when a landlord terminates a tenancy.
For the reasons set forth above, the Court finds that the conduct of USA as it relates to this case and the pursuit of and collection pursuant to the Writ of Non-Wage Garnishment has not violated the automatic stay provisions of 11 U.S.C. § 362 (a) and has not been wrongful in any other manner. Accordingly, Debtor's Motion to Stay Writ of Non-Wage Garnishment is denied, and the Motions of Debtor and Trustee to enjoin USA, to find a violation of the automatic stay, and for sanctions are denied.
Finally, the Court would remind the parties at this time that the use of uncivil, confrontational, and personal affronts rather than the logical presentation of facts and law, both in oral argument and in parties' briefs, is not helpful to the Court, nor does it serve the interests of counsel or their clients.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
See written Order.
ORDER
For the reasons set forth in an Opinion entered this day,
IT IS THEREFORE ORDERED as follows:
1. The Motion of Deborah Ann Freeman to Stay Writ of Non-Wage Garnishment be and is hereby denied.
2. The Motion of John H. Germeraad, Chapter 13 Trustee, to Enjoin the United States of America or in the alternative to Find that the United States of America has Violated the Automatic Stay and for Sanctions against the United States of America be and is hereby denied.
3. The Motion of Deborah Ann Freeman to Enjoin the United States of America or in the alternative to Find that the United States of America has Violated the Automatic Stay and for Sanctions against the United States of America be and is hereby denied.