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Bank of America, N.A v. Pethinaiduveluchamy and

May 4, 2011 *fn1


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 09-cv-05108 & 09-cv-05109-Milton I. Shadur, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED MAY 2, 2011


Before POSNER, KANNE, and TINDER, Circuit Judges.

This case presents the question of whether a district court has the power to temporarily seize the passports of judgment-debtors who are subject to a production of assets order. We conclude that the district court has that authority, and therefore affirm the portion of the order seizing the Veluchamys' passports.

In June 2009, Pethinaidu and Parameswari Veluchamy defaulted on debts owed to Bank of America to the tune of thirty-nine million dollars. Bank of America sued the Veluchamys for breach of contract in district court, and the district court ultimately entered a judgment in favor of Bank of America in December 2010. Post-judgment proceedings began in earnest, with Bank of America working to locate assets owned by the Veluchamys that could be applied to satisfy the multi-million dollar judgment against them.

During the post-judgment proceedings, the district court entered a number of citations requiring the Veluchamys to turn over financial records and respond to questions regarding their assets. The Veluchamys' response rate was rather sluggish. From January to March 2010, the Veluchamys refused to provide any information regarding their assets, instead making a blanket assertion that the Fifth Amendment privilege against self-incrimination applied to all testimony they might provide. They did this despite the fact that such a broad, undifferentiated assertion is insufficient in a post-judgment proceeding; instead, the privilege must be asserted in a far more specific fashion. See, e.g., United States v. Hatchett, 862 F.2d 1249, 1251 (6th Cir. 1988); Capitol Prods. Corp. v. Hernon, 457 F.2d 541, 542-43 (8th Cir. 1972). The district court ultimately rejected the Veluchamys' Fifth Amendment claim in early March 2011, instructing them to comply with the citations forthwith.

Bank of America did not sit idly by during the Veluchamys' silence. The Bank received some responses to the district court's citations from third-party financial institutions. Through these responses, Bank of America learned that the Veluchamys had transferred significant sums of money (about twenty million dollars) out of their bank accounts in the United States and into their bank account in India after they defaulted on their loans in June 2009. The Veluchamys also diluted or transferred their ownership interests in their non-movable assets located in the United States during the same period. Thanks to the Veluchamys' efforts, there are now sparse funds remaining within the United States (and the district court's jurisdiction) to satisfy the judgments against them.

Based on these discoveries-along with the Veluchamys' hesitance to respond to the district court's citations-Bank of America moved for an emergency order compelling the Veluchamys to produce the funds that they transferred to India and deposit them with the district court. They also requested that the Veluchamys turn over their passports until the funds were transferred, for fear that the Veluchamys would flee when ordered to deposit the cash with the court. Over the course of one day, the district court reviewed the evidence regarding these transfers put forth by Bank of America and addressed the Veluchamys' objections. The district court then ordered the Veluchamys to repatriate the funds or disclose the reasons precluding them from doing so. The district court also found that-in the interim- the Veluchamys were flight risks, and it ordered them to relinquish their passports until they complied with the production order.

The Veluchamys appeal the portion of the district court's order temporarily seizing their passports. We begin where we must-with our jurisdiction to hear their appeal. The post-judgment proceedings continue below, so we would normally lack the power to hear the appeal for want of a final judgment resolving the parties' claims. 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309 (1995). Immediate appeal is permitted, however, for orders that are collateral to the merits of the proceeding. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). An order is collateral when it "conclusively determines a disputed question that is separate from the merits of the case and is effectively unreviewable on an appeal from the final judgment." Jones v. Clark, 630 F.3d 677, 679 (7th Cir. 2011).

Both parties contend that the district court's seizure order is a collateral order, and we agree. First, the seizure portion of the order is indeed conclusive. Even though the order was designed to be temporary, its termination depends upon various conditions being satisfied; it thus answers the question of seizure for an indefinite period of time. Second, the order directly addresses an issue that is separate from the merits of the post-judgment proceeding: whether the Veluchamys retain their passports is sufficiently distinct from what funds must be applied to the judgment and where those funds are located (the subjects of a post- judgment proceeding). Finally, because the Veluchamys' passports will have been returned by the time the proceedings end, the order will be unreviewable at a later time. Satisfied that the order is collateral, we may proceed to the merits of the appeal.

On the merits, the Veluchamys focus their argument on whether the district court had the power to seize their passports. They contend that a judgment-debtor's passport can be seized only upon a finding of contempt, and only then if the record establishes a demonstrated history of flight on the part of the judgment debtor. For its part, Bank of America asserts that the district court has the power to temporarily seize the passport of a judgment debtor in limited circumstances, even without a finding of contempt.

The powers available to a district court in a post-judgment proceeding are dictated by state law-here, the law of Illinois. See Fed. R. Civ. P. 69; Star Ins. Co. v. Risk Mktg. Grp. Inc., 561 F.3d 656, 661 (7th Cir. 2009). Illinois law, in turn, provides the court with a variety of tools that can be used to satisfy a judgment. For example, the court may issue citations ordering parties and non-parties to turn over information, it may order parties and non-parties to transfer funds to satisfy a judgment, and- as is germane here-it may summarily compel a party or non-party to produce funds within their control. See 735 ILCS 5/2-1402(a)-(c). These powers are to be broadly construed, providing the district court with the authority to enter a wide variety of orders to ensure that usable assets are located, seized, and-where appro- priate-applied to the judgment. See Dexia Credit Local v. Rogan, 629 F.3d 612, 624 (7th Cir. 2010); Soc'y of Lloyd's v. Estate of McMurray, 274 F.3d 1133, 1135-36 (7th Cir. 2001); City of Chicago v. Air Auto Leasing Co., 697 N.E.2d 788, 791 (Ill. App. Ct. 1998).

In light of this broad construction, we think the power to order a party to produce funds includes the power to exercise some minimal control over the party subject to that order-but only when doing so is necessary to protect the court's ability to enforce the underlying order and prevent the loss of assets. Cf. Herbstein v. Bruetman, 241 F.3d 586, 588-89 (7th Cir. 2001) (contempt power includes the power to seize a party's passport); SEC v. Lauer, 52 F.3d 667, 671 (7th Cir. 1995) (injunction power reaches orders "essential to prevent the dissipation of assets"). Whether such controls are necessary will depend upon the circumstances of the case, but it will be a rare case where any extraordinary steps are needed. In the lion's share of cases, the debtor will not have moved assets to a locale beyond the court's jurisdiction, and thus the court's other powers-especially its power to order the holding financial institution itself to freeze the assets-will be enough to safeguard the court's ability to enforce a production order. But in the outlier case where the court can seize the funds at issue only through a ...

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