* Pursuan t to 5 T H C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

_____________________________________

No. 98-20076

Summary Calendar

_____________________________________

U2 HOME ENTERTAINMENT, INC.; TAI SENG VIDEO MARKETING

INC.; T-1004 CORPORATION, doing business as Rookie Films,

Plaintiffs-Appellees,

VERSUS

K- PHOTO & VIDEO; ET. AL.,

Defendants,

BANK ONE TEXAS, NATIONAL ASSOCIATION,

Garnishee-Appellee,

VERSUS

KUM-SOON CHAE, doing business as K-Video,

Movant-Appellant.

_____________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-2332)

_____________________________________

January 6, 1999

Before REYNALDO G. GARZA, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM: *

I. Factual and Procedural Background2

Appellant, Kum-Soon Chae (“Kum-Soon”), owns and operates K-V ideo, a sol e

proprietorship. Kum-Soon allegedly purchased the inventory of the judgment debtor, K-Pho t o &

Video, Inc., (“K-Photo”), a video store located in Houston, Texas. Kum-Soon also worked at KPhoto. Choi Kwang Bok (a/k/a Kwang Pok Choi a/k/a James Choi a/k/a Jimmy Choi a/k/a Jimmy

Chae a/k/a Choi Kwang Chae) (“Jimmy Chae”), Jane Chae (a/k/a Jane Choi a/k/a Yang Choi) and

Jay Chae (a/k/a Jay Choi a/k/a Yang Choi) (collectively referred to as “judgment debtors”) were the

o fficers and directors of K-Photo. They were responsible for the control and management of the

corporation. Jimmy Chae and Jane Chae are the parents of Jay Chae, who is the husband of KumSoon.

On July 18, 1996, U2 Home Entertainment, Inc., d/b/a Tai Seng Video Marketing and T-1004

Corp. d/b/a Rookie Films (collectively referred to as “appellees”) brought suit against K-Photo in

the United States District Court for the Southern District of Texas. They alleged that K-Photo had

engaged in copyright infringement under 17 U.S.C. § 101 et seq. and Lanham Act Violations under

15 U.S.C. § 1125 et seq. The action was based upon K-Photo’s unauthorized duplicating, selling,

and renting to the public appellees’ copyrighted motion pictures and TVB progr ams bearing

counterfeit trademarks and labels.

On August 12, 1997, the district cou rt entered a final judgement against K-Photo and the

judgment debtors in the amount of $1,364,000. The court found the judgment debtors jointly and

severally liable to appellees for torti ous violation of United States copyright laws under 17 U.S.C.

§504(c).

On October 28, 1997, appellees’ application for a writ of garnishment after judgment directed

to Bank One, Texas, N.A. (“Bank One”) was granted.

On November 21, 1997 Kum-Soon filed a Motion to Intervene and Motion to Vacat e,

Dissolve or to Modify Wr it o f Garnishment pursuant to Rule 664a of the Texas Rules of Civil

Procedure. Kum-Soon complained that the writ should have been dissolved because it trapped funds

in an account that belonged exclusively to her.3

On November 24, 1997, a hearing was held where the dist r ict court, Kum-Soon and her

attorney heard appellees’ arguments where they contested Kum-Soon’s claim of ownershi p of the

funds based on theories of fraudulent conveyance and community property

. The court also ordered

that A l lan Huie, representative of appellees, and Kum-Soon be deposed based on allegations of

ownership by Kum-Soon.

Also on November 24, 1997, Bank One, after being served with the writ of garnishment,

served its original answer admitting indebtedness to t he appellees of $19,819.90. Bank One

impounded the funds of two accounts: (1) account number 9360203216 (“account one”), styled

Jimmy Chae or Jane Chae, with a balance of $1,323.95; and (2) account number 1820890588

(“account two”), styled Kum-Soon Chae d/b/a Video, with a balance of $18,376.47. The signature

card on account two listed both Kum-Soon Chae and Jane Chae as authorized signatories.

On December 5, 1997, a Rule 664a hearing was conducted. The trial court heard arguments,

listened to testimony, and reviewed evidence. The trial court invited appellees to submit a brief and

point out portions of the deposition testimony they wish ed t o consider. Later on December 5,

appellees filed their Plaintiffs’ Memorandum in Support of Garnishment. The trial court instructed

Kum-Soon to file any response to the memorandum by Monday morning, December 8, 1997. KumSoon failed to file a

timely objection to the memorandum. On December, 8, 1997, the district court

entered a judgment denying Kum-Soon’s motion.

This appeal followed.

II. Standard of Review

We review the trial court's evidenti a ry rulings for abuse of discretion. Hollyw ood Fantasy

Corp. v. Gabor

, 151 F.3d 203, 211 (5th Cir. 1998). Furt hermore, this Court reviews the district

court's findings of fact for clear error. American River Trans. Co. v. Kavo Kaliakra SS , 148 F.3d

446, 449 (5th Cir. 1998).

III. Discussion4 A. The Account

Kum-Soon asserts that the district court erred in granting the writ of garnishment because the

appellees did not meet their burden of proof by showing that the judgment debtor owned more than

bare legal title to the funds in the garnished account. This contention is meritless.

The district court properly noted that Bank One garnished the account because Jane Chae,

one of the judgment debtors, is a signatory on the account. Furthermore, Jane Chae has unrestricted

access to the acco unt which she has used to pay her and her husband’s credit card debts, their

mortgage, health insurance and other personal expenses. In addition, most of the canceled checks

produced at t he deposition of Kum-Soon on November 24, 1997, had been signed by Jane Chae

instead of Kum-Soon. Kum-Soon also co nceded that Jane Chae holds legal title to these funds.

Therefore, the evidence presented to the district co u rt indicated that Jane Chae is an owner of the

account. Moreover, appellees properly obtained t he writ of garnishment and Kum-Soon failed to

sufficiently prove her ownership of the account.

A post judgment writ of garnishment is issued if “a plaintiff has a valid, subsisting judgment

and makes an affidavit stating that, within the plaint iff's knowledge, the [judgment debtor] does not

possess property in Texas subject to execution sufficient to satisfy the judgment.” T E X

. C IV

. P RAC

.

& R EM

. C ODE §63001(3). It is clear that the appellees obtained the writ by presenting to the trial

court an application with an attached certified copy of a valid and subsisting judgment and an affidavit

stating that the judgment debtors did not possess property in Texas subject to execution sufficient to

satisfy the judgment. We find that the judgment and the affidavit were properly before the district

court for consideration. Furthermore, the existence of a valid and subsist ing judgment or the

contents of the affidavit were not challenged. Therefore, we hold that the appellees’ application for

writ of garnishment after judgment met the statutory requirements and the trial court correctly issued

the writ of garnishment.

Kum-Soon sought to have the writ dissolved pursuant to Texas Rules of Civil Procedure

664a. In a Rule 664a hearin g t he plaint iff must “prove the grounds relied upon for [the writ of5

garnishment’s] issuance. Once the garnishor meets its burden, the intervenor bears the burden to

prove the grounds for dissolution. Walnut Equip. Leasing Co. v. J-V Dirt & Loa m, a Div. of J-V

Marble Mfg., Inc ., 907 S.W.2d 912, 925 (Tex.App.-Austin 1995, writ denied); s ee T EX .R.C IV .P.

664a. This Court notes that Bank One was properly served with the writ of garnishment and a return

was filed with the trial court. Bank One then filed an answer and advisory to the court in which it

acknowledged that it impounded the funds in the account styled “Kum-Soon Chae d/b/a K-Video”

a nd t hat t his account was garnished because the judgment debtor, Jane Chae, was a signatory. A

garnishee’s answer stating that it does hold funds which belong to the debtor establishes prima facie

that the debtor owns the funds,

and without further evidence the garnishee may have the funds applied to pay the debt

owed him by the debtor. If another person claims ownership of the funds, he must

intervene and by appropriate allegations and proof overcome that rebuttable

presumption . . .

Putman & Putman, Inc. v. Capitol Warehouse, Inc

., 775 S.W.2d 460, 463 (Tex.App.-Austin 1989,

writ denied). To recover the funds Kum-Soon was required to allege and prove affirmatively that

she owned the funds. Id.

After reviewing the record, we find that Kum-Soo n failed to meet her burden of proof by

showing that she owned the funds in the account. It is clear by the testimony made by Bank One’s

representative, Kum-Soon’s testimony, the affidavits, and the documents provided in the record, that

the district court properly found that Kum-Soon failed to meet her burden of proof. Thus, the facts

before the dis t rict court were sufficient to uphold its decision that Kum-Soon’s motion should be

denied.

B. Fraudulent Conveyance and Community Property

Kum-So o n asserts that she did not receive notice of the factual or legal basis upon which

garnishment of the account c o uld be grant ed. She argues that the legal theories of fraudulent

conveyance and community property were not pled and notice was not provided.6

This C o urt finds t hat Kum Soon’s complaint arguing insufficient notice in the pleadings is

disingenuous. The record reveals that the appellees gave sufficient no t ice and that the writ of

garnishment was properly attained. The burden shifted to Kum-Soon to plead and prove exclusive

ownership of the fund; this she failed to do.

The district court determined that the funds in the account were subject to both garnishment

pursuant to the Texa s Family Code and the Texas Fraudulent Transfer Act. After reviewing its

rationale we find that both of the district court’s determinations are correct.

The appellees properly note that Kum-Soon, not the appellees, raised the issue of ownership

of the account. Therefore, whether the funds in the account were community property pursuant to

the Texas Family Code was properly considered by the district court.

The appellees correctly maintain that Kum-Soon was provided with proper notice as early as

the November, 24, 1997 hearing. They note that she was aware of appellees’ belief that the account

was a result of a fraudulent co nveyance at least twelve days before the Rule 664a hearing which

granted the writ of garnishment. Notice was given in open court contesting Kum-Soon’s affirmative

claims of ownership. Therefore, this Court agrees with the appellees that it was no surprise, nor was

it unfairly prejudicial, for appellees to counter Kum-Soon’s position on the issue of ownership with

rebuttal evidence and argume nt based on the Fraudulent Transfer Act. S ee Alpine Geophysical

Assoc. Inc. v. Quantum Electronics Corp.

, 651 S.W.2d 57, 61 (Tex.App.–Houston [14th Dist.] 1983,

no writ)(concluding that no pleadings are necessary on matters which are in rebuttal to allegations

made by the defendants as a defensive matter).

C. Supporting Documents

K um-Soon contends that the documents submitted in maintenance of the ap pellees’

Memorandum in Support of Garnishment are defective because the documents were not verified or

properly authenticated, incl uding the deposition excerpts. Furthermore, she contends that the

deposition excerpts were defective because they did not contain the court reporter’s certificate or any7

other form of authentication for use as evidence.

In support of their rebuttal of Kum-Soon’s claim of owne rship, the appellees attached

excerpts to their memorandum from Kum-Soon and Jimmy Chae’s depositions. The appellees assert

that it was not an abuse of discretion for the court to consider the deposition excerpts. The appellees

state that at the Rule 664 a hearing, t he court invited the parties to present briefs and to point our

matters in the depositions for its consideration. In addition, Kum-So o n’s counsel questioned her

about her deposition during her live testimony at the Rule 664a hearing. They also contend that

Kum-Soon’s complaint regarding the deposition excerpts is waived. Moreover, the deposi ti on

excerpts were properly considered by the district court and are presumed to have been admissible

evidence. S ee Fishing Fleet, Inc. v. Trident Ins. Co., Ltd.

, 598 F.2d 925, 929 (5th Cir. 1979)(finding

that in a bench trial it is presumed that the trial court’s findings are based on admissible evidence).

We agree with the appellees and find that the deposition excerpts and the supporti ng

documents were properly admitted. Moreover, they provide ample evidence in support of the district

court’s decision to deny Kum-Soon’s motion.

D. Due Process

Kum-Soon asserts that her fundamental right to due process was violated because appellees’

pleadings were insufficient and did not give notice of the theories for which reco very was sought.

Kum-Soon argues that she was deprived due process of law and a meaningful opportuni ty to prepare

a defense to these issues. In addition, Kum-Soon contends that the district court erred in allowing

the garnishment of the account since the only evidence submitted by the appellees was presented at

the close of the evidentiary hearing. Furthermore, Kum-Soon complains that the court erred by

relying on fatally defective evidence to grant the garnishment on the day that the evidence was filed

because the district court did not allow Kum-Soon the opportunity to respond to the evidence.

The appellees maintain that the trial court afforded Kum-Soon due process of l aw in all

respects in this matter. Moreover, the appellees assert that Kum-Soon’s complaints that she was not8

adequately apprised of appellees’ theories raised in rebuttal to Kum-Soon’s claim of ownership and

title are without merit. This Court agrees with the appellees.

The appellees first raised the issue of ownership by claiming an interest in the account adverse

to the judgment debtors. Kum-Soon and her atto rney were present at the November 24, 1997

hearing, where it was stated that the appellees believed that any funds claimed by Kum-Soon were

the result of a fraudulent conveyance. Furthermore, Kum-Soon admitted that she was married to the

judgment debtor, Jay Chae, and that she had act ual knowledge of the underlying judgment upon

which the writ of garnishment was based. Also, Kum-Soon had notice, as a matter of law, of the

community nature of the funds.

The appellees also correctly assert that the district court did not violate Kum-Soon’s right to

due process by considering the memorandum filed by the appellees. The record demonstrates that

Kum-Soon received more than one-third of the memorandum and attachments three days before the

co urt rendered judgment. However, Kum-Soon apparently waived the opportunity to receive t he

remainder of the memorandum that day by facsimile. In addition, Kum-Soon was instructed by the

court to submit any responses to the appellees’ memorandum by the morning of December 8, 1997.

Kum-Soon was aware that the trial court was required to enter judgment on her motion on December

8, 1997. Nevertheless, Kum-Soon decided to disregard the instructions and refused to challenge the

memorandum within the time ordered by the court at the December, 5, 1995, hearing.

Therefore, we conclude that Kum-Soon’s fundamental right to due process was not violated.

IV. Conclusion

Accordingly, for the reasons aforementioned, the district court’s holdings are AFFIRMED.