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Securities and Exchange Commission v. Fonecash

July 6, 2011


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The Securities and Exchange Commission, through the Department of Treasury and Pioneer Credit Recovery, Inc., a private collection agency, is attempting to collect $20,635.43 from Daniel E. Charboneau, which is the current value of a civil monetary penalty imposed in 2004 as a result of securities violations to which he admitted. Mr. Charboneau, proceeding pro se, asks the Court to review the Commission's collection action under the jurisdiction the Court retained "for all purposes."*fn1 Mr. Charboneau seeks the elimination or reduction of the civil penalty as well as the elimination or reduction of interest on the penalty. The Commission responds that he cannot now modify or amend the judgment against him and that the post judgment interest is mandatory. While the Commission is correct on these points, it did not provide Mr. Charboneau adequate notice of its intent to use the Department of Treasury Offset Program ("TOP") to obtain payment. While the Commission asserts that it sent notice to Mr. Charboneau's last known address, he had updated the docket with a new address, which the Commission ignored. The notice was, therefore, infirm and cannot be relied upon by the Commission.


This Court entered summary judgment in favor of the Securities and Exchange Commission and against Mr. Charboneau on November 15, 2004, finding that he engaged in securities fraud. See Mem. Op. [Dkt. # 60]. The accompanying order assessed a penalty in the amount of $10,470.30. See Order [Dkt. # 59]. By Revised Order dated December 20, 2004, the Court denied the Commission's motion for a disgorgement remedy because Mr. Charboneau has already been ordered "to pay a fine equal to that which would be disgorged and that, in his penurious circumstances, ordering the equitable remedy of disgorgement on top of the fine and injunctions is not necessary or appropriate." Revised Order[Dkt. # 64]. The Revised Order, which was the final order of judgment in this case, indicated that the monetary penalty was payable within 45 days after the Revised Order was issue. Id. at 4. The Court noted that Mr. Charboneau was then "a prisoner at the Federal Correction institution in Otisville, where he [was] serving a sentence for securities fraud." Id. at 2.

Mr. Charboneau filed a Motion for Review on February 22, 2011, asking the Court to review the Revised Order, the final order of judgment in this case. See Mot. for Review [Dkt. # 67]. He explained that he was serving a prison sentence between January 20, 2004 - when the penalty became due under the Court's order - and November 14, 2005. While in prison, he earned only a prison salary of $89 per month. By the time he was released, his family had moved from White Plains, New York to Watertown, Massachusetts. After leaving prison, Mr. Charboneau began receiving Social Security benefits*fn2 and began working. He was laid off in 2006, and he has been unable to obtain a job since then. His unemployment benefits expired in March of 2010. In December of 2010, Mr. Charboneau received a collection letter from Pioneer, attempting to collect the penalty of $10,470.30 plus post judgment interest - in the total amount of $20,635.43.

Mr. Charboneau sent a letter to Pioneer challenging the interest calculation and asserting that repayment of the penalty and interest was impossible due to his lack of income and assets. Pioneer responded, indicating that it needed a financial statement in order to present Mr. Charboneau's plea for reduction or elimination of the debt. Mr. Charboneau sent the statement, but Pioneer rejected it because it was not signed by Mr. Charboneau's spouse. Mr. Charboneau has not paid Pioneer. It does not appear that Pioneer has presented any request for deferment or reduction on Mr. Charboneau's behalf.

Then, starting on February 4, 2011, the Commission used TOP to reduce the Social Security benefits deposited into Mr. Charboneau's account. Mr. Charboneau's monthly benefit was reduced by $159 for repayment of the penalty and interest due in this case. The Commission had sent Mr. Charboneau notice on July 14, 2006, regarding its right to collect the debt through TOP. See Mot. for Review [Dkt. #67], Att. E (Letter from Commission). The letter warned that the Commission could collect the debt by offsetting a percentage of any federal payments to Mr. Charboneau, including social security benefits. Id. at 1-2. The notice stated that Mr. Charboneau had the right to pay the debt in full, agree to a payment plan, or request a review of the amounts owed. Id. at 2-3. It also notified Mr. Charboneau that post judgment interest could be charged pursuant to 28 U.S.C. 1961(a). Id. at 4.

However, Mr. Charboneau did not receive the notice in 2006. The Commission sent it to his White Plains address, despite the fact that in 2004, Mr. Charboneau had filed a notice of change of address with the Court, providing his address in prison. See Notice of Change of Address [Dkt. # 45]. In 2006, Mr. Charboneau was no longer in prison, but he also no longer lived in White Plains. He and his family had moved from White Plains to Watertown.

Mr. Charboneau now requests that the Court review the judgment, as he seeks elimination or reduction of the monetary penalty and post judgment interest.*fn3


Federal Rule of Civil Procedure 60(b) provides for motions for relief from a judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct; (4) void judgment; (5) satisfied, released, or discharged judgment; or (6) "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Motions under Rule 60(b) must be filed within a reasonable time, and for reasons (1), (2), and (3), no more than one year after entry of the judgment.

The catch-all provision, Rule 60(b)(6), gives courts discretion to vacate or modify judgments when it is "appropriate to accomplish justice," Klapprott v. United States, 335 U.S. 601, 614-15 (1949), but it should be applied only in extraordinary circumstances, Kramer v. Gates, 481 F.3d 788, 791 (D.C. Cir. 2007) (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)). "Rule 60(b)(6) 'should be only sparingly used' and may not 'be employed simply to rescue a litigant from strategic choices that later turn out to be improvident.'" Kramer, 481 F.3d 792 (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). Relief under Rule 60(b)(6) "is not available unless the other clauses, (1) through (5), are inapplicable." Goland v. CIA, 607 F.2d 339, 372-73 (D.C. Cir. 1979). The party seeking relief from judgment bears the burden of proof. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383-84 (1992); accord Mazengo v. Mzengi, 542 F. Supp. 2d 96, 100 n.3 (D.D.C. 2008).


While Mr. Charboneau does not allege that Rule 60(b) applies, he seeks to alter the judgment and Rule 60(b) serves as the means for doing so. Even so, Mr. Charboneau has not borne his burden of proof. He has not shown mistake; newly discovered evidence; fraud, misrepresentation, or other misconduct; that the judgment is void, satisfied, released, or discharged; or that there is any other extraordinary reason to justify relief from the operation of the judgment. Moreover, the motion for review is untimely under Rule 60(b). Mr. Charboneau filed his motion for review in 2011 - more than six years after the 2004 Revised Order was entered - which is ...

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