Garnishment

• Author: International Law Group

According to Canadian and United States court records, Edward Andrew Durante boasts a long history of criminal and regulatory penalties for various fraud - related offenses. At the time of this litigation, he was serving a jail term in the U.S. for stock fraud.

The U.S. Securities & Exchange Commission (SEC) had traced his operations to a Vancouver, British Columbia, brokerage firm. Durante had apparently processed his ill-gotten gains through this firm, the funds having ended up in the garnishee Exchange Bank & Trust Inc.[EBT] account at the Bank of Montreal in British Columbia.

Plaintiff, Michael Jason Evans, is trying to collect on his California default judgment against Durante by garnishing the latter's deposits in EBT. The original judgment consisted of about U.S. $38 million. When converted to Canadian currency plus interest etc. it amounted to over Can. $63 million. as of December 2002. Apparently pursuant to a plea bargain in New York federal court, Durante had deposited $19 million in the EBT. The EBT, however, was claiming that Durante had already distributed most of these funds to his overseas connections. Counsel for both sides had agreed not to move against the EBT funds without giving notice to the other side.

The SEC is litigating as trustee for a number of American victims of Durante's alleged frauds. Four other depositors not linked to Durante's activities are also claiming in debt against the EBT. Their issues raised the question of priority in relation to plaintiff for the payment of amounts deposited in the EBT and these matters are still pending before different judges in the lower courts.

Before December 2002, plaintiff had obtained garnishment orders against EBT. On December 18, hoping to gain priority over other EBT debtors, plaintiff had obtained, ex parte, an absolute garnishment order and the next day a garnishing order after judgment. No one else appeared in the chambers proceeding though plaintiff's attorney, Mr. Steven Antle, claims to have served Durante and the EBT. Antle did not serve the third party debtors, however, nor did he tell the chambers judge about their claims. Theoretically at least, the main effect of the ex parte orders was to obligate the bank to pay Durante's entire default judgment into court. Mr. Antle did not reveal to the chambers judge his client's intentions vis-a-vis the other creditors. Nor did he notify the judge that the British Columbia Securities Commission (BCSC) already had...