28 USC PART VI, CHAPTER 176, SUBCHAPTER A: DEFINITIONS AND GENERAL PROVISIONS

From Title 28—JUDICIARY AND JUDICIAL PROCEDUREPART VI—PARTICULAR PROCEEDINGSCHAPTER 176—FEDERAL DEBT COLLECTION PROCEDURE

SUBCHAPTER A—DEFINITIONS AND GENERAL PROVISIONS

Sec.

3001.

Applicability of chapter.

3002.

Definitions.

3003.

Rules of construction.

3004.

Service of process; enforcement; notice.

3005.

Application of chapter to judgments.

3006.

Affidavit requirements.

3007.

Perishable personal property.

3008.

Proceedings before United States magistrate judges.

3009.

United States marshals' authority to designate keeper.

3010.

Co-owned property.

3011.

Assessment of surcharge on a debt.

3012.

Joinder of additional defendant.

3013.

Modification or protective order; supervision of enforcement.

3014.

Exempt property.

3015.

Discovery as to debtor's financial condition.

Statutory Notes and Related Subsidiaries

Change of Name

"United States magistrate judges" substituted for "United States magistrates" in item 3008 pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of this title.

§3001. Applicability of chapter

(a) In General.—Except as provided in subsection (b), the ¹ chapter provides the exclusive civil procedures for the United States—

(1) to recover a judgment on a debt; or

(2) to obtain, before judgment on a claim for a debt, a remedy in connection with such claim.

(b) Limitation.—To the extent that another Federal law specifies procedures for recovering on a claim or a judgment for a debt arising under such law, those procedures shall apply to such claim or judgment to the extent those procedures are inconsistent with this chapter.

(c) Amounts Owing Other Than Debts.—This chapter shall not apply with respect to an amount owing that is not a debt or to a claim for an amount owing that is not a debt.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4933.)

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 101–647, title XXXVI, §3631, Nov. 29, 1990, 104 Stat. 4966, provided that:

"(a) Except as provided in subsection (b), this Act [probably should be "title", meaning title XXXVI of Pub. L. 101–647, which enacted this chapter and section 2044 of this title, amended sections 550, 1962, 1963, and 2410 of this title, section 523 of Title 11, Bankruptcy, and sections 3142 and 3552 of Title 18, Crimes and Criminal Procedure, and enacted provisions set out as a note under section 1 of this title] and the amendments made by this Act [title] shall take effect 180 days after the date of the enactment of this Act [Nov. 29, 1990].

"(b)(1) The amendments made by title I of this Act [probably should be "subtitle A of this title", meaning subtitle A (§§3611, 3302 [3612]) of title XXXVI of Pub. L. 101–647, which enacted this chapter] shall apply with respect to actions pending on the effective date of this Act [probably should be title XXXVI of Pub. L. 101–647] in any court on—

"(A) a claim for a debt; or

"(B) a judgment for a debt.

"(2) All notices, writs, orders, and judgments in effect in such actions shall continue in effect until superseded or modified in an action under chapter 176 of title 28 of the United States Code, as added by title I of this Act [subtitle A of this title].

"(3) For purposes of this subsection—

"(A) the term 'court' means a Federal, State, or local court, and

"(B) the term 'debt' has the meaning given such term in section and [sic] 3002(3) of such chapter."

¹ So in original. Probably should be "this".

§3002. Definitions

As used in this chapter:

(1) "Counsel for the United States" means—

(A) a United States attorney, an assistant United States attorney designated to act on behalf of the United States attorney, or an attorney with the United States Department of Justice or with a Federal agency who has litigation authority; and

(B) any private attorney authorized by contract made in accordance with section 3718 of title 31 to conduct litigation for collection of debts on behalf of the United States.

(2) "Court" means any court created by the Congress of the United States, excluding the United States Tax Court.

(3) "Debt" means—

(A) an amount that is owing to the United States on account of a direct loan, or loan insured or guaranteed, by the United States; or

(B) an amount that is owing to the United States on account of a fee, duty, lease, rent, service, sale of real or personal property, overpayment, fine, assessment, penalty, restitution, damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the United States, or other source of indebtedness to the United States, but that is not owing under the terms of a contract originally entered into by only persons other than the United States;

and includes any amount owing to the United States for the benefit of an Indian tribe or individual Indian, but excludes any amount to which the United States is entitled under section 3011(a).

(4) "Debtor" means a person who is liable for a debt or against whom there is a claim for a debt.

(5) "Disposable earnings" means that part of earnings remaining after all deductions required by law have been withheld.

(6) "Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(7) "Garnishee" means a person (other than the debtor) who has, or is reasonably thought to have, possession, custody, or control of any property in which the debtor has a substantial nonexempt interest, including any obligation due the debtor or to become due the debtor, and against whom a garnishment under section 3104 or 3205 is issued by a court.

(8) "Judgment" means a judgment, order, or decree entered in favor of the United States in a court and arising from a civil or criminal proceeding regarding a debt.

(9) "Nonexempt disposable earnings" means 25 percent of disposable earnings, subject to section 303 of the Consumer Credit Protection Act.

(10) "Person" includes a natural person (including an individual Indian), a corporation, a partnership, an unincorporated association, a trust, or an estate, or any other public or private entity, including a State or local government or an Indian tribe.

(11) "Prejudgment remedy" means the remedy of attachment, receivership, garnishment, or sequestration authorized by this chapter to be granted before judgment on the merits of a claim for a debt.

(12) "Property" includes any present or future interest, whether legal or equitable, in real, personal (including choses in action), or mixed property, tangible or intangible, vested or contingent, wherever located and however held (including community property and property held in trust (including spendthrift and pension trusts)), but excludes—

(A) property held in trust by the United States for the benefit of an Indian tribe or individual Indian; and

(B) Indian lands subject to restrictions against alienation imposed by the United States.

(13) "Security agreement" means an agreement that creates or provides for a lien.

(14) "State" means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, or any territory or possession of the United States.

(15) "United States" means—

(A) a Federal corporation;

(B) an agency, department, commission, board, or other entity of the United States; or

(16) "United States marshal" means a United States marshal, a deputy marshal, or an official of the United States Marshals Service designated under section 564.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4933.)

Editorial Notes

References in Text

Section 303 of the Consumer Credit Protection Act, referred to in par. (9), is classified to section 1673 of Title 15, Commerce and Trade.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 180 days after Nov. 29, 1990, and applicable with respect to certain actions for debts owed the United States pending in court on that effective date, see section 3631 of Pub. L. 101–647, set out as a note under section 3001 of this title.

§3003. Rules of construction

(a) Terms.—For purposes of this chapter—

(1) the terms "includes" and "including" are not limiting;

(2) the term "or" is not exclusive; and

(3) the singular includes the plural.

(b) Effect on Rights of the United States.—This chapter shall not be construed to curtail or limit the right of the United States under any other Federal law or any State law—

(1) to collect taxes or to collect any other amount collectible in the same manner as a tax;

(2) to collect any fine, penalty, assessment, restitution, or forfeiture arising in a criminal case;

(3) to appoint or seek the appointment of a receiver; or

(4) to enforce a security agreement.

(1) title 11;

(2) admiralty law;

(3) section 3713 of title 31;

(4) section 303 of the Consumer Credit Protection Act (15 U.S.C. 1673);

(5) a statute of limitation applicable to a criminal proceeding;

(6) the common law or statutory rights to set-off or recoupment;

(7) any Federal law authorizing, or any inherent authority of a court to provide, injunctive relief;

(8) the authority of a court—

(A) to impose a sanction under the Federal Rules of Civil Procedure;

(B) to appoint a receiver to effectuate its order; or

(9) any law authorizing the United States to obtain partition, or to recover possession, of property in which the United States holds title; or

(10) any provision of any other chapter of this title, except to the extent such provision is inconsistent with this chapter.

(d) Preemption.—This chapter shall preempt State law to the extent such law is inconsistent with a provision of this chapter.

(e) Effect on Rights of the United States Under Foreign and International Law.—This chapter shall not be construed to curtail or limit the rights of the United States under foreign law, under a treaty or an international agreement, or otherwise under international law.

(f) Applicability of Federal Rules of Civil Procedure.—Except as provided otherwise in this chapter, the Federal Rules of Civil Procedure shall apply with respect to actions and proceedings under this chapter.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4935.)

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsecs. (c)(8)(A) and (f), are set out in the Appendix to this title.

Statutory Notes and Related Subsidiaries

Effective Date

§3004. Service of process; enforcement; notice

(a) Manner of Service.—A complaint, notice, writ, or other process required to be served in an action or proceeding under this chapter shall be served in accordance with the Federal Rules of Civil Procedure unless otherwise provided in this chapter.

(b) Nationwide Enforcement.—(1) Except as provided in paragraph (2)—

(A) any writ, order, judgment, or other process, including a summons and complaint, filed under this chapter may be served in any State; and

(B) such writ, order, or judgment may be enforced by the court issuing the writ, order, or process, regardless of where the person is served with the writ, order, or process.

(2) If the debtor so requests, within 20 days after receiving the notice described in section 3101(d) or 3202(b), the action or proceeding in which the writ, order, or judgment was issued shall be transferred to the district court for the district in which the debtor resides.

(c) Notice and Other Process.—At such time as counsel for the United States considers appropriate, but not later than the time a prejudgment or postjudgment remedy is put into effect under this chapter, counsel for the United States shall exercise reasonable diligence to serve on the debtor and any person who the United States believes, after exercising due diligence, has possession, custody, or control of the property, a copy of the application for such remedy, the order granting such remedy, and the notice required by section 3101(d) or 3202(b).

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4936.)

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.

Statutory Notes and Related Subsidiaries

Effective Date

§3005. Application of chapter to judgments

This chapter shall not apply with respect to a judgment on a debt if such judgment is entered more than 10 years before the effective date of this chapter.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4936.)

Editorial Notes

References in Text

For effective date of this chapter, referred to in text, see section 3631 of Pub. L. 101–647, set out as an Effective Date note under section 3001 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

§3006. Affidavit requirements

Any affidavit required of the United States by this chapter may be made on information and belief, if reliable and reasonably necessary, establishing with particularity, to the court's satisfaction, facts supporting the claim of the United States.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4936.)

Statutory Notes and Related Subsidiaries

Effective Date

§3007. Perishable personal property

(a) Authority To Sell.—If at any time during any action or proceeding under this chapter the court determines on its own initiative or upon motion of any party, that any seized or detained personal property is likely to perish, waste, or be destroyed, or otherwise substantially depreciate in value during the pendency of the proceeding, the court shall order a commercially reasonable sale of such property.

(b) Deposit of Sale Proceeds.—Within 5 days after such sale, the proceeds shall be deposited with the clerk of the court, accompanied by a statement in writing and signed by the United States marshal, to be filed in the action or proceeding, stating the time and place of sale, the name of the purchaser, the amount received, and an itemized account of expenses.

(c) Presumption.—For purposes of liability on the part of the United States, there shall be a presumption that the price paid at a sale under subsection (a) is the fair market value of the property or portion.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4937.)

Statutory Notes and Related Subsidiaries

Effective Date

§3008. Proceedings before United States magistrate judges

A district court of the United States may assign its duties in proceedings under this chapter to a United States magistrate judge to the extent not inconsistent with the Constitution and laws of the United States.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4937; amended Pub. L. 101–650, title III, §321, Dec. 1, 1990, 104 Stat. 5117.)

Statutory Notes and Related Subsidiaries

Change of Name

"United States magistrate judges" substituted for "United States magistrates" in catchline and "United States magistrate judge" substituted for "United States magistrate" in text pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of this title.

Effective Date

§3009. United States marshals' authority to designate keeper

Whenever a United States marshal is authorized to seize property pursuant to this chapter, the United States marshal may designate another person or Federal agency to hold for safekeeping such property seized.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4937.)

Statutory Notes and Related Subsidiaries

Effective Date

§3010. Co-owned property

(a) Limitation.—The remedies available to the United States under this chapter may be enforced against property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located. This section shall not be construed to limit any right or interest of a debtor or co-owner in a retirement system for Federal military or civilian personnel established by the United States or any agency thereof or in a qualified retirement arrangement.

(b) Definitions.—For purposes of subsection (a)—

(1) the term "retirement system for Federal military or civilian personnel" means a pension or annuity system for Federal military or civilian personnel of more than one agency, or for some or all of such personnel of a single agency, established by statute or by regulation pursuant to statutory authority; and

(2) the term "qualified retirement arrangement" means a plan qualified under section 401(a), 403(a), or 409 of the Internal Revenue Code of 1986 or a plan that is subject to the requirements of section 205 of the Employee Retirement Income Security Act of 1974.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4937.)

Editorial Notes

References in Text

Sections 401(a), 403(a), and 409 of the Internal Revenue Code of 1986, referred to in subsec. (b)(2), are classified to sections 401(a), 403(a), and 409, respectively, of Title 26, Internal Revenue Code.

Section 205 of the Employee Retirement Income Security Act of 1974, referred to in subsec. (b)(2), is classified to section 1055 of Title 29, Labor.

Statutory Notes and Related Subsidiaries

Effective Date

§3011. Assessment of surcharge on a debt

(a) Surcharge Authorized.—In an action or proceeding under subchapter B or C, and subject to subsection (b), the United States is entitled to recover a surcharge of 10 percent of the amount of the debt in connection with the recovery of the debt, to cover the cost of processing and handling the litigation and enforcement under this chapter of the claim for such debt.

(b) Limitation.—Subsection (a) shall not apply if—

(1) the United States receives an attorney's fee in connection with the enforcement of the claim; or

(2) the law pursuant to which the action on the claim is based provides any other amount to cover such costs.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4937.)

Statutory Notes and Related Subsidiaries

Effective Date

§3012. Joinder of additional defendant

The United States or the debtor may join as an additional defendant in an action or proceeding under this chapter any person reasonably believed to owe money (including money owed on account of a requirement to provide goods or services pursuant to a loan or loan guarantee extended under Federal law) to the debtor arising out of the transaction or occurrence giving rise to a debt.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4938.)

Statutory Notes and Related Subsidiaries

Effective Date

§3013. Modification or protective order; supervision of enforcement

The court may at any time on its own initiative or the motion of any interested person, and after such notice as it may require, make an order denying, limiting, conditioning, regulating, extending, or modifying the use of any enforcement procedure under this chapter.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4938.)

Statutory Notes and Related Subsidiaries

Effective Date

§3014. Exempt property

(a) Election To Exempt Property.—An individual debtor may, in an action or proceeding under this chapter, elect to exempt property listed in either paragraph (1) or, in the alternative, paragraph (2). If such action or proceeding is against debtors who are husband and wife, one debtor may not elect to exempt property listed in paragraph (1) and the other debtor elect to exempt property listed in paragraph (2). If the debtors cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (1). Such property is either—

(1) property that is specified in section 522(d) of title 11, as amended from time to time; or

(2)(A) any property that is exempt under Federal law, other than paragraph (1), or State or local law that is applicable on the date of the filing of the application for a remedy under this chapter at the place in which the debtor's domicile has been located for the 180 days immediately preceding the date of the filing of such application, or for a longer portion of such 180-day period than in any other place; and

(B) any interest in property in which the debtor had, immediately before the filing of such application, an interest as a tenant by the entirety or joint tenant, or an interest in a community estate, to the extent that such interest is exempt from process under applicable nonbankruptcy law.

(b) Effect on Assertion and Manner of Determination.—

(1) Statement.—A court may order the debtor to file a statement with regard to any claimed exemption. A copy of such statement shall be served on counsel for the United States. Such statement shall be under oath and shall describe each item of property for which exemption is claimed, the value and the basis for such valuation, and the nature of the debtor's ownership interest.

(2) Hearing.—The United States or the debtor, by application to the court in which an action or proceeding under this chapter is pending, may request a hearing on the applicability of any exemption claimed by the debtor. The court shall determine the extent (if any) to which the exemption applies. Unless it is reasonably evident that the exemption applies, the debtor shall bear the burden of persuasion.

(3) Stay of Disposition.—Assertion of an exemption shall prevent the United States from selling or otherwise disposing of the property for which such exemption is claimed until the court determines whether the debtor has a substantial nonexempt interest in such property. The United States may not take possession of, dispose of, sell, or otherwise interfere with the debtor's normal use and enjoyment of an interest in property the United States knows or has reason to know is exempt.

(c) Debtors in Joint Cases.—Subject to the limitation in subsection (a), this section shall apply separately with respect to each debtor in a joint case.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4938.)

Statutory Notes and Related Subsidiaries

Effective Date

§3015. Discovery as to debtor's financial condition

(a) In General.—Except as provided in subsection (b), in an action or proceeding under subchapter B or C, the United States may have discovery regarding the financial condition of the debtor in the manner in which discovery is authorized by the Federal Rules of Civil Procedure in an action on a claim for a debt.

(b) Limitation.—Subsection (a) shall not apply with respect to an action or proceeding under subchapter B unless there is a reasonable likelihood that the debt involved exceeds $50,000.

(Added Pub. L. 101–647, title XXXVI, §3611, Nov. 29, 1990, 104 Stat. 4939.)

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (a), are set out in the Appendix to this title.