SUPERIOR Court Associate Judge Joseph N. Camacho on Monday granted attorney Michael A. White’s motion for a post-judgment ex parte order of attachment against the operator and owner of the former Thai House Restaurant/H&H Enterprises Inc.
According to an online legal dictionary, ex parte “refers to motions for orders that can be granted without waiting for a response from the other side.”
“The proposed procedure for a post-judgment ex parte order of attachment — with the attached funds to be transferred or deposited into the Superior Court, then notice provided to the defendant for the opportunity for the defendant to be heard prior to the attached funds being paid to the plaintiff — complies with the requirements of the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution,” Judge Camacho said in his order.
Thai House Restaurant, or H&H, is no longer in business, and the principals of the corporation are no longer in the jurisdiction, the judge noted.
He said the post-judgment proceedings involve collection efforts by the plaintiff on a judgment against the defendant, a business entity.
“The plaintiff sought an ex parte court order to attach the defendant’s business bank account. The bank was ordered to transfer or deposit to the Superior Court Clerk of Court an amount not to exceed the judgment. The plaintiff was also ordered to file a prompt notice to the court of the transfer or deposit to the Superior Court Clerk of Court so that a hearing could be set within a reasonable time. Also, after the money was transferred or deposited to the Superior Court Clerk of Court and a hearing set, the plaintiff served the defendant with the order setting the hearing date, to provide the defendant with an opportunity to address the court on the attachment.”
On June 1, 2020, the Law Offices of Michael A. White filed a complaint against Thai House Restaurant/H&H, alleging that the defendant had failed, refused and neglected, and continued to fail, refuse, and neglect to pay the principal sum of $3,657.63.
White demanded judgment over and against the defendant for the principal sum of $3,657.63, as well as court costs and interest on the total, at the maximum rate provided by the law, from the date of judgment.
On Oct. 31, 2020, White filed a request to enter default, due to the defendant’s failure to plead or otherwise defend, as provided by Rule 55 of the Commonwealth Rules of Civil Procedure.
On Nov. 4, 2020, upon the request of the plaintiff, the default of the defendant was entered pursuant to Rule 55.
On Nov. 4, 2020, the plaintiff filed a request for default judgment for (i) the principal sum of $3,657.63; and (ii) court costs of $317, resulting in a total sum of $3,974.63.
On Nov. 5, 2020, the court entered a judgment in favor of the Law Offices of Michael A. White, in the principal sum of $3,974.63, together with interest thereon at the rate of 9% per annum from Oct. 31, 2020.
On July 7, 2021, White moved the court for an order to attach all funds of the defendant on deposit with BankPacific, and to direct BankPacific to pay those funds into the court.
The judge noted that the July 7, 2021 motion was made on an ex parte basis because of the nature of the relief sought and for a special cause: “namely that if defendant were afforded prior notice, defendant will likely take steps to frustrate the purpose and defeat plaintiff’s right to seek recovery of the balance due upon the judgment out of such funds.”
On Aug. 6, 2021, the court entered an order directing BankPacific to promptly transfer or deposit a check to the Superior Court of the CNMI for the sum of $3,974.63, together with interest from the funds on deposit at BankPacific in the name of the defendant, Thai House Restaurant/H & H.
The court also issued an order directing the plaintiff to promptly serve BankPacific with a copy of the order instructing the bank to transfer the funds to the Superior Court Clerk of Court and a copy of the plaintiff’s July 7, 2021 motion, in order to provide context and background information to the bank.
In its order, the court required that, upon completion of the transfer or deposit of the funds from BankPacific to the Superior Court, the plaintiff file a notice of completion of the transfer within three business days to inform the Superior Court.
On Sept. 17, 2021, BankPacific sent a check in the amount of $93.92 to the Superior Court Clerk of Court, representing all funds on deposit at BankPacific in the name of the defendant.
The plaintiff filed a notice of this transfer on Sept. 27, 2021.
On Sept. 28, 2021, the court set the matter for hearing and required the plaintiff to serve a copy of the notice of hearing, as well as the notice of transfer, on the defendant and to file proof of service.
White filed proof of service on Oct. 1, 2021.
Based on the filings, Judge Camacho noted, the plaintiff’s notification was filed 10 days after.
The defendant, Thai House Restaurant/H&H, was no longer conducting daily operations “and thus its business was not unreasonably disrupted and there was no impact on employee payroll, payments of taxes or to vendors, etc,” the judge said.
“Though ultimately plaintiff’s delay in filing the notice to the court did not affect the defendant’s business operations, the court takes this opportunity to impress upon the plaintiff the importance of being cognizant of the court’s order to file a timely notice, so that a hearing can be promptly scheduled in order to avoid any due process violation,” the judge added.
As a legal standard, Judge Camacho also noted that Title 7 CMC Section 4201(b) provides that “debts payable to the defendant… may be attached by a special order issued by the court, which shall exempt from the attachment so much of any salary or wages as the court deems necessary for the support of the person against whom the order is issued or his or her dependents.”
He said 7 CMC Section 4210 further provides for exemption from attachment, giving detailed descriptions regarding the following categories of described property, which are exempt from attachment and execution: (a) personal and household goods; (b) necessities for trade or occupation; and (c) land and interests in land.
Judge Camacho also ordered the Superior Court clerk to promptly transfer to White the sum of $93.92, being the sum paid to the Superior Court Clerk of Court by BankPacific.
The funds shall be applied to the balance due upon the judgment, the judge added.
