UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

AMY BEALOR, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 3:13-CV-26-TLS

)

REVENUE REPORTING SERVICES and )

JASON SCHNECKENBERGER, )

)

Defendants. )

OPINION AND ORDER

The Plaintiff, Amy Bealor, has sued the Defendants for violations of the Fair Debt

Collection Practice Act (FDCPA). Due to the Defendants’ default, the Plaintiff has a judgment

against Defendant Revenue Reporting Services (RRS) for $7,163.00 in statutory damages, actual

damages, and attorney’s fees and costs. There is no judgment against Defendant Jason

Scheckenberger. This matter is now before the Court on a Report and Recommendation issued

by Judge Christopher A. Nuechterlein with respect to various post judgment motions filed by the

Plaintiff.

BACKGROUND

On October 21, 2014, the Magistrate Judge granted the Plaintiff’s Motion to Compel

Responses to Post Judgment Discovery, ordering RRS to respond to the Plaintiff’s post judgment

discovery, or to pay the judgment in full by October 28, 2014. When RRS failed to respond to

the discovery or to pay the judgment, the Plaintiff filed a Motion for Order to Show Cause,

requesting that RRS be ordered to show cause why it should not be found in contempt for failure

to comply with the court’s order. The court ordered all parties to appear for a hearing. RRS did
not appear, and the Plaintiff requested attorney’s fees and the issuance of a body attachment. 

On February 4, 2015, the Magistrate Judge issued a Report and Recommendation setting

forth a recommendation that the Court find RRS to be in civil contempt, to impose a fine of

$1,000 per day from October 29, 2014, until the date RRS complies with the court’s order to pay

the judgment in full or respond to post judgment discovery, to award the Plaintiff $3,303 in

additional attorney’s fees and costs, and to deny without prejudice the Plaintiff’s request for a

writ of body attachment against Scheckenberger. No party has filed an objection to the

Magistrate Judge’s Report and Recommendation.

DISCUSSION

A. Standard of Review

This Court’s review of the Magistrate’s Report and Recommendation is governed by 28

U.S.C. § 636(b)(1)(C) which provides in part:

A judge of the court shall make a de novo determination of those portions of the

report or specified proposed findings and recommendations to which objection is

made. A judge of the court may accept, reject, or modify, in whole or in part, the

findings and recommendations made by the magistrate. The judge may also

receive further evidence or recommit the matter to the magistrate with

instructions.

B. Execution of Judgment

According to Federal Rule of Civil Procedure 69, “a money judgment is enforced by a

write of execution, unless the court directs otherwise.” Further, the “procedure on

execution—and in proceedings supplementary to and in aid of judgment or execution—must

accord with the procedure of the state where the court is located, but a federal statute governs to

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the extent it applies.” Fed. R. Civ. P. 69(a)(1). Rule 69 allows a judgment creditor to “obtain

discovery from any person—including the judgment debtor” in “aid of the judgment or

execution.” Fed. R. Civ. P. 69(a)(2). This includes the use of any discovery mechanisms

provided under state practice. Id.

This action is pending in Indiana, and the Plaintiff has not suggested that a federal statute

governs the collection of her judgment under the FDCPA. Indiana Trial Rule 69(E) governs

proceedings supplemental:

(E) Proceedings supplemental to execution. Notwithstanding any other statute

to the contrary, proceedings supplemental to execution may be enforced by

verified motion or with affidavits in the court where the judgment is rendered

alleging generally:

(1) that the plaintiff owns the described judgment against the defendant;

(2) that the plaintiff has no cause to believe that levy of execution against the

defendant will satisfy the judgment;

(3) that the defendant be ordered to appear before the court to answer as to his

non-exempt property subject to execution or proceedings supplemental to

execution or to apply any such specified or unspecified property towards

satisfaction of the judgment; and,

(4) if any person is named as garnishee, that garnishee has or will have specified

or unspecified nonexempt property of, or an obligation owing to the judgment

debtor subject to execution or proceedings supplemental to execution, and that the

garnishee be ordered to appear and answer concerning the same or answer

interrogatories submitted with the motion.

If the court determines that the motion meets the foregoing requirements it shall,

ex parte and without notice, order the judgment debtor, other named parties

defendant and the garnishee to appear for a hearing thereon or to answer the

interrogatories attached to the motion, or both.

The motion, along with the court’s order stating the time for the appearance and

hearing or the time for the answer to interrogatories submitted with the motion,

shall be served upon the judgment debtor as provided in Rule 5, and other parties

and the garnishee shall be entitled to service of process as provided in Rule 4. The

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date fixed for appearance and hearing or answer to interrogatories shall be not

less than twenty [20] days after service. No further pleadings shall be required,

and the case shall be heard and determined and property ordered applied towards

the judgment in accordance with statutes allowing proceedings supplementary to

execution. In aid of the judgment or execution, the judgment creditor or his

successor in interest of record and the judgment debtor may utilize the discovery

provisions of these rules in the manner provided in these rules for discovery or as

provided under the laws allowing proceedings supplemental.

Ind. Trial R. 69(E); see Keaton v. Fort Wayne Neurosurgery, 780 N.E.2d 1183, 1185 (Ind. Ct.

App. 2003) (explaining that proceedings supplemental are a mere continuation of the underlying

claim on the merits, which are initiated by verified motion under the same cause number and in

the same court which entered judgment against the defendant). Additionally, the requirement that

a debtor have been “served notice of a proceedings-supplemental hearing,” is a prerequisite to

the issuance of a body-attachment warrant against a judgment debtor. N.D. Ind. L.R. 69-4(a)(1).

C. Report and Recommendation

Here, the Plaintiff has not filed a verified motion for proceedings supplemental meeting

the requirements of Indiana Trial Rule 69(E). The first motion the Plaintiff filed after obtaining

the judgment was a Motion to Compel Responses to Post-Judgment Discovery related to

Interrogatories she directed toward the discovery of assets and potential transfers of real and

personal property. Although the Motion references Federal Rule of Civil Procedure 69, and

although interrogatories are a proper discovery mechanism, the Plaintiff has not provided the

proper sworn statements or otherwise attempted to initiate proceedings supplemental in

accordance with Indiana law. “[A] proceeding supplemental offers the judgment creditor judicial

resources ‘for discovering assets, reaching equitable and other interest[s] not subject to levy and

sale at law and to set aside fraudulent conveyances.’” Rose v. Mercantile Nat’l Bank of

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Hammond, 868 N.E.2d 772, 775 (Ind. 2007) (quoting McCarthy v. McCarthy, 297 N.E.2d 441,

444 (1973)). Where no proceedings in aid of execution have been instituted, the Plaintiff has not

established that she is entitled to the judicial resources that are now being sought— imposition of

civil contempt and a $1,000 a day fine, award of attorney’s fees, and issuance of writ of body

attachment.

Based on the foregoing, the Court adopts the Magistrate Judge’s recommendation to deny

the Supplemental Motion for Body Attachment. The Court rejects the recommendation to find

RRS in civil contempt and award attorney fees to the Plaintiff. The motions are denied without

prejudice and with leave to refile if appropriate after the initiation of proceedings supplemental.

CONCLUSION

For the reasons stated above, the Court ACCEPTS IN PART and REJECTS IN PART the

Report and Recommendation [ECF No. 33]. The Motion for Order to Show Cause [ECF No. 26]

is DENIED WITHOUT PREJUDICE, the Plaintiff’s Supplemental Petition for Attorneys’ Fees

[ECF No. 31] is DENIED WITHOUT PREJUDICE, and the Supplemental Motion for Body

Attachment [ECF No. 32] is DENIED.

SO ORDERED on September 28, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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