USA v. Clark
Criminal

Northern District of California, cand-4:2015-cv-03509

Order by Magistrate Judge Donna M. Ryu granting {{10}} Stipulation.(dmrlc2, COURT STAFF)

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Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page1 Page 1ofof13 13 1 MELINDA HAAG (CABN 132612) United States Attorney 2 ALEX G. TSE (CABN 152348) Chief, Civil Division 3 JULIE C. REAGIN (SBN 167934) 4 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 5 San Francisco, California 94102-3495 Telephone: (415) 436-7181 6 FAX: (415) 436-6570 7 Email: Julie.Reagin@usdoj.gov 8 Attorneys for Plaintiff 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 UNITED STATES OF AMERICA, Case No. 3:15-CV-03509 13 Plaintiff, STIPULATION FOR ENTRY OF CONSENT 14 JUDGMENT v. 15 16 MARCHE DWAN CLARK, 17 Defendant 18 19 Plaintiff, United States of America ("United States"), by and through its attorneys, and defendant 20 Marche Dwan Clark ("Clark"), appearing in proper, stipulate and agree as follows: 21 RECITALS 22 A. The United States filed a Complaint in this action, seeking to recover a debt of 23 approximately $23,600.10 owing from Clark to the Social Security Administration ("SSA") for 24 overpayment of Social Security disability benefits. 25 B. Clark has not yet answered the Complaint; and 26 C. The parties are desirous of resolving their dispute under the terms outlined below. 27 28 STIP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 1 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page2 Page 2ofof13 13 1 STIPULATION 2 1. Parties 3 The parties to this Stipulation for Entry of Consent Judgment are the United States and Clark. 4 2. Acknowledgment of Service of Complaint 5 Clark acknowledges receipt of the Complaint, a copy of which is attached as Exhibit A. 6 3. Jurisdiction 7 The court has personal jurisdiction over Clark. This court has jurisdiction over the subject matter 8 of this action pursuant to 28 U.S.C. § 1345. 9 4. Claim for Relief 10 The complaint states a claim for relief upon which relief may be granted. 11 5. Venue 12 Venue is proper in this District pursuant to 28 U.S.C. § 1391. 13 6. Compromise 14 The parties agree that this Stipulation for Entry of Consent Judgment constitutes a compromise 15 and settlement of the contentions of the United States asserted in the complaint. 16 7. Judgment Amount 17 Judgment shall be entered against Clark in the amount of $23,600.10. 18 8. Periodic Payments 19 A. To resolve this matter, the United States has agreed to accept monthly payments of 20 $400.00 from Clark, who has agreed to make those payments using the electronic system PAY.GOV. A 21 summary of the terms of PAY.GOV is attached as Exhibit B. Clark will make his first monthly payment 22 no later than September 1, 2015, and each subsequent payment on the first day of each succeeding 23 month. If the first day of the month is a holiday or weekend, the payment shall be made on the next 24 regular or business day. Clark shall make this monthly payment (or any adjusted monthly payment) 25 until the balance due under the Consent Judgment has been paid in full. 26 B. Either the United States or Clark may make a request of the other party to increase or 27 reduce the monthly payment provided by this paragraph, should Clark's financial circumstances change. 28 STIP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 2 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page3 Page 3ofof13 13 1 Clark agrees to supply a financial statement and tax returns to the United States Attorney's Office at its 2 request. This United States Attorney's Office will confirm any change to the monthly payment in 3 writing to Clark. 4 9. Abstract of Judgment (Lien) 5 Upon entry of the Consent Judgment, the United States may record an abstract of judgment 6 against Clark in any county. The abstract of judgment shall be released by the United States upon 7 payment of the amount due under the Consent Judgment. 8 10. Stay of Execution 9 The United States shall stay execution on the Consent Judgment for so long as Clark is not in 10 default of the terms of the payments required under Paragraph 8. 11 11. Default 12 A. Default under this Consent Judgment shall be defined as the failure to make any monthly 13 payment required by the terms of Paragraph 8, when due or in the required amount. 14 B. In the event Clark defaults under this Stipulation for Entry of Consent Judgment, the 15 entire unpaid balance of the Consent Judgment shall be immediately due and payable. The United 16 States shall have the right to immediately enforce the Consent Judgment by, among other things, 17 executing or garnishing Clark's property, without further notice. In the event of default, Clark will pay 18 any costs associated with the enforcement of the Consent Judgment, including the cost of recording any 19 liens at the County Recorder's office, and attorney's fees. 20 12. Retention of Jurisdiction 21 The Court shall retain jurisdiction over this action in order to enforce this Stipulation for Entry of 22 Consent Judgment. 23 13. Notices 24 All notices to Clark shall be sent to: 25 Marche Dwan Clark 4800 3rd Street 26 Unit 203 San Francisco, CA 94124 27 28 STIP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 3 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page4 Page 4ofof13 13 1 14. Costs and Fees 2 The parties shall bear their own costs, fees and expenses incurred regarding this action and 3 regarding the negotiation, drafting and execution of this Stipulation for Entry of Consent Judgment. 4 15. Release 5 Clark accepts the terms of this Stipulation for Entry of Consent Judgment as full settlement and 6 satisfaction of the above-captioned lawsuit and releases and forever discharges the United States and any 7 and all past and present agencies, officials, employees, agents, attorneys, their successors and assigns, 8 from any and all obligations, damages, liabilities, actions, causes of action, claims and demands, of any 9 kind and nature whatsoever, whether suspected or unsuspected, at law, in equity, known or unknown, 10 arising out of this matter. 11 16. California Civil Code § 1542 Waiver 12 The provisions of California Civil Code § 1542 are set forth below: 13 A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if 14 known by him or her must have materially affected his or her settlement with the debtor. 15 16 Clark, having been apprised of the statutory language of Civil Code Section 1542, 17 and fully understanding the same, nevertheless elects to waive the benefits of any and all 18 rights Clark may have pursuant to the provision of that statute and any similar provision of 19 federal law. Clark understands that, if the facts are later found to be other than or different 20 from the facts now believed to be true, the Stipulation for Entry of Consent Judgment shall 21 be and remain effective notwithstanding such material difference. 22 17. Complete Agreement & Merger 23 24 Each party acknowledges that, except as herein expressly set forth, no 25 representations of any kind or character have been made by the other party or that party's 26 agents, representatives, or attorneys to induce execution of this Stipulation for Entry of 27 Consent Judgment or delivery of the documents or payments required by this Stipulation for 28 STIP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 4 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page5 Page 5ofof13 13 1 Entry of Consent Judgment. This Stipulation for Entry of Consent Judgment represents the 2 full and complete agreement by and between the parties regarding the subject matter of this 3 Stipulation for Entry of Consent Judgment. This Stipulation for Entry of Consent Judgment 4 shall not be modified or amended except in a writing signed by the person or entity against 5 whom enforcement is sought. 6 18. No Binding Effect on Other Obligations to United States or Its Agencies or 7 8 Departments. 9 Nothing in this Stipulation for Entry of Consent Judgment is intended to affect or 10 bind, nor shall it affect or bind, the United States Internal Revenue Service with respect to 11 any liability that Clark has or may have with respect to claims arising under the Internal 12 Revenue Service Code, Title 26 of the United States Code, or any other United States 13 Government agencies or departments. 14 15 19. Waiver of Trial and Appeal 16 The parties consent to the entry of the foregoing Stipulation for Entry of Consent 17 Judgment, and defendant Clark hereby waives his right to a trial of this action and waives all 18 rights to appeal this action or the Stipulation for Entry of Consent Judgment. 19 20 21 22 23 24 25 26 27 28 STIP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 5 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page6 Page 6ofof13 13 1 SO STIPULATED: 2 I/we have read the foregoing, I/we understand the tenns, and I/we sign this 3 Stipulation for Entry of Consent Judgment as a free and voluntary act. ~-~ 4 £/ 6 MARCHE DWAN CLARK Defendant 7 8 9 MELINDA HAAG uruted stateVomey 10 Dated: By: 11 J IN C. REAGIN Q 12 As~nt United States Attorney For the United States of America 13 14 15 16 17 ORDER APPROVING STIPULATION FOR ENTRY OF CONSENT JUDGMENT ISTRIC 18 TES D TC TA 19 IT IS SO ORDERED. O S U ED RT 20 ORD ERED UNIT September 8, 2015 21 Dated: _ _ _ __ IT IS SO R NIA UNITED STATES DISTRICT JUDGE 22 u a M. Ry NO onn Judge D FO 23 RT LI ER H 24 A N C F 25 D IS T IC T O R 26 27 28 STTP. FOR ENTRY OF CONSENT JUDGMENT ORDER APPROVING STIPULATION CASE No. 3:15-CV-03509 6 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed08/27/15 Filed 09/08/15 Page7 Page 7ofof13 13 EXHIBIT "A" Case Case4:15-cv-03509-DMR Case3:15-cv-03509 4:15-cv-03509-DMR Document1 Document Document10 13Filed07/30/15 Filed08/27/15 Filed 09/08/15 Page1 Page8 Page of 85ofof13 13 1 MELINDA HAAG (CABN 132612) United States Attorney 2 ALEX G. TSE (CABN 152348) Chief, Civil Division 3 JULIE C. REAGIN (SBN 167934) 4 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 5 San Francisco, California 94102-3495 Telephone: (415) 436-6915 6 FAX: (415) 436-7181 7 Email: Julie.Reagin@usdoj.gov 8 Attorneys for Plaintiff 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 UNITED STATES OF AMERICA, Case No. 3:15-cv-3509 13 Plaintiff, COMPLAINT FOR COLLECTION OF 14 v. DEBT 15 DEBT COLLECTION CASE [L.R. 16-6] 16 MARCHE DWAN CLARK, 17 Defendant 18 19 The Plaintiff, United States of America, alleges as follows: 20 1. This is an action to recover the balance totaling $23,600.10 on an overpayment of 21 disability insurance benefits paid to the defendant, Marche Dwan Clark ("Defendant"), by the plaintiff, 22 the United States of America, Social Security Administration ("SSA") pursuant to 42 U.S.C. § 423, 23 which has not been repaid. 24 Jurisdiction 25 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 26 1345. Venue 27 3. The Defendant, Marche Dwan Clark, is a resident in San Francisco County, California, 28 COMPLAINT CASE No. 3:15-cv-3509 1 Case Case4:15-cv-03509-DMR Case3:15-cv-03509 4:15-cv-03509-DMR Document1 Document Document10 13Filed07/30/15 Filed08/27/15 Filed 09/08/15 Page2 Page9 Page of 95ofof13 13 1 which is within the jurisdiction of the Court. 2 The Debt 3 4. On January 4, 2010, SSA notified Defendant that based upon months he worked between 4 July 2004 and April 2008, it had determined he was eligible for disability benefits, but that Defendant 5 was required to report any changes to SSA that might affect his eligibility, including a change in 6 employment or salary. 7 5. Without advising SSA, Defendant had returned to substantial gainful work activity in 8 2008, which rendered him ineligible and resulted in overpayment of Social Security disability insurance 9 benefits from August 2008 to January 2011 totaling $29,640.10. 10 6. On February 22, 2011, SSA sent an Explanation of Overpayment Notice to Defendant 11 that explained the basis for the overpayment determination as well as a right to appeal or request a 12 waiver. Defendant neither responded nor requested an appeal or waiver. 13 7. On May 1, 2011, SSA sent a Notice of Disability Cessation to defendant. Defendant did 14 not contact SSA or request an appeal. 15 8. Between April 2011 and March 2012 SSA sent Defendant several payment demands. 16 Defendant did not respond. 17 9. On March 11, 2012, SSA sent a Final Notice of Overpayment to Defendant in which 18 SSA advised him that if he failed to contact SSA or repay the overpayment amount by April 5, 2012, it 19 would consider referring his case to the Department of Justice. Defendant did not respond. 20 10. On April 18, 2012, SSA notified Defendant that it had received Federal payment owed to 21 him, applied it to his overpayment, and reduced his debt balance to $23,600.10. 22 11. On December 21, 2012, SSA sent Defendant a Form 632 to complete to request an 23 appeal. Defendant did not respond. 24 12. On February 28, 2013, the U.S. Department of Justice ("DOJ") sent a letter to Defendant 25 advising him that SSA referred his case to the United States Attorney's Office to initiate legal action 26 against him and advised Defendant to pay the debt in full in order to avoid further legal action. 27 Defendant did not respond. 28 COMPLAINT CASE No. 3:15-cv-3509 2 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Case3:15-cv-03509 Document1 Document Document10 13Filed07/30/15 Filed Filed08/27/15 09/08/15Page3 Page10 Pageof10 5ofof13 13 1 Failure to Pay 2 13. As of February 4, 2013, Defendant owes Plaintiff a total of $23,600.10. See Certificate 3 of Indebtedness attached hereto as "Exhibit A" and made a part hereof. 4 14. The principal balance on the Certificate of Indebtedness is correct as of the date of the 5 Certificate of Indebtedness. 6 15. Although payment has been demanded, payment has not been made by Defendant and the 7 entire balance has become due and payable. 8 Prayer 9 WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 10 1. For the sum of $23,600.10, plus prejudgment interest through the date of judgment, all 11 administrative costs allowed by law, and post-judgment interest; 12 2. For court costs and an amount equal to the filing fee as allowed pursuant to 28 U.S.C. § 13 2412(a)(2); and, 14 3. For such other and further relief as the Court deems just and proper. 15 16 Dated: 7/30/15 Respectfully submitted, 17 MELINDA HAAG United States Attorney 18 19 20 By: /s/ Julie C. Reagin JULIE C. REAGIN 21 Assistant United States Attorney 22 23 24 25 26 27 28 COMPLAINT CASE No. 3:15-cv-3509 3 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed Filed08/27/15 09/08/15 Page11 Page 11ofof13 13 EXHIBIT "B" Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed Filed08/27/15 09/08/15 Page12 Page 12ofof13 13 CMYK Washington, DC 120530 Nationwide Central Intake Facility U.S. Department of Justice, JMD/DCM Washington, DC 20530 Nationwide Central Intake Facility U.S. Department of Justice, JMD/DCM AT AT ON-LINE ON-LINE PAYMENTS PAYMENTS MAKE YOUR 301-585-2391. NCIFHelpDesk@caci.com., or MAKE YOUR Job: 300581_paygov Helpdesk at office, or contact the NCIF collection office. please, contact your collection NCIF form please, on Pay.gov, contact your about accessing about accessing the Pay.gov, DOJ IfIfyou haveany you have anyquestions questions WHAT IS PAY.gov? Pay.gov is a secure Government website that allows you to submit If you have any questions payments for your debt(s) about accessing Pay.gov, electronically. Pay.gov is managed please contact your by the Department of Treasury, collection office. Financial Management Service. BENEFITS MAKE YOUR No more paper. No mail delay. PAYMENTS You can submit your payments ON-LINE on-line. AT You can make a payment anytime and anywhere with Internet access. You can pay via credit card or via a debit transaction from your FINANCIAL MANAGEMENT SERVICES bank account. United States Department of the Treasury You can schedule recurring payments through your bank account so your payments will U.S. Department of Justice, JMD/DCM always be on time. Nationwide Central Intake Facility Washington, DC 20530 Case Case4:15-cv-03509-DMR 4:15-cv-03509-DMR Document Document10 13 Filed Filed08/27/15 09/08/15 Page13 Page 13ofof13 13 CMYK Washington, DC 120530 Nationwide Central Intake Facility U.S. Department of Justice, JMD/DCM Washington, DC 20530 Nationwide Central Intake Facility U.S. Department of Justice, JMD/DCM AT AT ON-LINE ON-LINE PAYMENTS PAYMENTS MAKE YOUR 301-585-2391. NCIFHelpDesk@caci.com., or MAKE YOUR Job: 300581_paygov Helpdesk at office, or contact the NCIF collection office. please, contact your collection NCIF form please, on Pay.gov, contact your about accessing about accessing the Pay.gov, DOJ IfIfyou haveany you have anyquestions questions HOW DOES HOW DO I PAY HOW TO SET UP PAY.gov WORK? ON-LINE? Recurring Payments The Pay.gov site is available 24 Step 1: Obtain your DOJ CDCS case lf you would like to set up recurring hours a day, 7 days a week number from your statement or payments through Pay.gov, please do (holidays included) for users to contact your collection office. the following: submit payments. Step 2: Log on to the Internet and Step 1: Go to https://www.pay.gov. Credit Card Payments type https://www.pay.gov into your CMYK browser's location bar, and hit Step 2: At the top right of the page you Pay.gov provides real-time should see: Log in/Register. "enter" to access the Pay.gov web authorization for all credit card page. payments. However, payments will Step 3: Click on the "Register" link and complete the self-enrollment process. generally be processed the next Step 3: Go to the SEARCH box at the business day. top of the page and enter: Step 4: Once you are registered, the DOJ DAOG/CDCS login page opens. Log into Pay.gov. Debit Transactions Press "enter" or click "Search". NOTE: For further instructions, select Step 4: Click "Continue to the Form" 'ONLINE HELP' from the blue bar at Debit payments are processed the on the next two pages as they appear. the top of the page, then click on next business day as long as the 'Register with Pay.gov'. transaction is entered before 8:00 Step 5: Use your DOJ CDCS case p.m. Eastern Standard Time. Step 5: On the left side of the menu number and payment information Transactions entered after 8:00 p.m. select "Payments", then "Automatic to complete the form. Click submit Payments", then "Schedule Automatic Eastern Standard Time may take two and then the web-site will walk Payment". business days to process. you through all the screens to Debit processing follows the Federal finalize your submission. Step 6: Enter the required information Reserve holiday schedule. You can to complete the transaction. NOTE: To schedule recurring find the holiday schedule at: payments you must first register http://clevelandfed.org/banking/ and create a Username and utilities.banking_holidays.cfm Password.