28 U.S.C. § 3105: Sequestration

Summary

The United States can take and hold income that comes from property the debtor owns a substantial nonexempt share of, to secure payment of a debt, plus interest and costs. The amount taken cannot be more than what is needed to cover the debt, likely interest, and costs after subtracting the value of the debtor’s unprotected interest in any property that already secures the debt or that is attached, garnished, or in receivership. If the rules in section 3101 are met, a court must issue a writ letting the U.S. marshal seize that income in certain cases: a money contract suit if the government shows reason to think the contract isn’t fully secured or the original security has fallen in value, a tort damage suit, when the debtor lives outside the United States, or in actions to recover a fine, penalty, or tax. The marshal must act quickly, notify the debtor and the person holding the income, and file papers. The holder must deposit the income with the court clerk and give a written statement about it. The marshal must return the writ to the court within 5 days with details of what was taken. A debtor may ask the court to reduce or end an excessive seizure, and the court will release or dissolve it if appropriate. If the United States wins, the seized income pays the judgment; if not, the income must be returned.

Title 28, §3105

Judiciary and Judicial Procedure, Source: USLM XML via OLRC

(a)Property Subject to Sequestration.—

(1)Any income from property in which the debtor has a substantial nonexempt interest may be sequestered pursuant to a writ of sequestration in an action or proceeding against a debtor on a claim for a debt and may be held as security to satisfy such judgment, and interest and costs, as the United States may recover on such claim.

(2)The amount of income sequestered shall not exceed the amount by which the sum of the amount of the debt claimed by the United States and the amount of interest and costs reasonably likely to be assessed against the debtor by the court exceeds the aggregate value of the nonexempt interest of the debtor in any—

(A)property securing the debt; and

(B)property attached, garnished, or in receivership under this subchapter.

(b)Availability of Sequestration.—

If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the United States to sequester income from property in which the debtor has a substantial nonexempt interest, as security for such judgment (and interest and costs) as the United States may recover on a claim for a debt—

(1)in an action on a contract, express or implied, against the debtor for payment of money, only if the United States shows reasonable cause to believe that—

(A)the contract is not fully secured by real or personal property; or

(B)the value of the original security is substantially diminished, without any act of the United States or the person to whom the security was given, below the amount of the debt;

(2)in an action against the debtor for damages in tort;

(3)if the debtor resides outside the jurisdiction of the United States; or

(4)in an action to recover a fine, penalty, or tax.

(c)Issuance of Writ; Contents.—

(1)Subject to subsections (a) and (b), a writ of sequestration shall be issued by the court directing the United States marshal of the district where income described in subsection (a) is located to sequester the income.

(2)Several writs of sequestration may be issued at the same time, or in succession, and sent to different judicial districts until sufficient income is sequestered.

(3)The writ of sequestration shall contain—

(A)the date of the issuance of the writ;

(B)the identity of the court, the docket number of the action, and the identity of the cause of action;

(C)the name and last known address of the debtor;

(D)the amount to be secured by the sequestration; and

(E)a reasonable description of the income to be sequestered.

(d)Execution of Writ.—

(1)The United States marshal receiving the writ shall proceed without delay to execute the writ.

(2)The United States marshal shall file a copy of the notice of sequestration in the same manner as provided for judgments in section 3201(a)(1). The United States marshal shall serve a copy of the writ and notice of sequestration on—

(A)the debtor against whom the writ is issued; and

(B)the person who has possession of the income subject to the writ;

in the same manner that a summons is served in a civil action and make the return thereof.

(e)Deposit of Sequestered Income.—

A person who has possession of the income subject to a writ of sequestration shall deposit such income with the clerk of the court, accompanied by a statement in writing stating the person’s name, the name of the debtor, the amount of such income, the property from which such income is produced, and the period during which such income is produced.

(f)Return of Writ; Duties of Marshal; Further Return.—

(1)A United States marshal executing a writ of sequestration shall return the writ with the marshal’s action endorsed thereon or attached thereto and signed by the marshal, to the court from which it was issued, within 5 days after the date of the execution.

(2)The return shall describe the income sequestered with sufficient certainty to identify it and shall state the location where it was sequestered, and the date and time it was sequestered. If no income was sequestered, the return shall so state.

(3)If sequestered income is claimed after the return, the United States marshal shall immediately make a further return to the clerk of the court showing the disposition of the income.

(g)Reduction or Dissolution of Sequestration.—

(1)If an excessive or unreasonable sequestration is made, the debtor may submit a motion to the court for a reduction of the amount of the sequestration or its dissolution. Notice of such motion shall be served on the United States.

(2)The court shall order a part of the income to be released, if after a hearing the court finds that the amount of the sequestration is excessive or unreasonable or if the sequestration is for an amount larger than the sum of the liquidated or ascertainable amount of the debt and the amount of interest and costs likely to be taxed.

(3)The court shall dissolve the sequestration if the amount of the debt is unliquidated and unascertainable by calculation.

(h)Preservation of Income Under Sequester.—

If personal property in custody of the United States marshal under a writ of sequestration is not claimed, the court may make such order for its preservation or use as appears to be in the interest of the parties.

(i)Judgment and Disposition of Sequestered Income.—

(1)Judgment for the united states.—

On entry of judgment for the United States, the court shall order the sequestered income to be applied to the satisfaction of the judgment.

(2)Restoration of income.—

If the sequestration is vacated or if the judgment on the claim for the debt is for the person against whom the writ of sequestration is issued, the court shall order the income restored to the debtor.

Notes & Related Subsidiaries

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.

§3105 Sequestration

Summary

Title 28, §3105

Notes & Related Subsidiaries

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata