Can the Government Take My Home to Collect Restitution in Federal Criminal Case?

In most situations the answer is no, but the most complete answer is “it depends.”   First, it is important to know that restitution is different from fines and costs.  Fines are defined by statute and meant to be punitive. For example, if you were convicted of prescription fraud under 18 USC § 841, you could be fined up to $10,000,000. Costs are generally discretionary and are meant to reimburse the government for the expenses involved in prosecuting you.  Both fines and costs are paid to the government.

Restitution on the other hand is meant to restore the victims of the crime to the place where they stood before the crime was committed. The legal phrase for this is to make the victim “whole.” Generally, the purpose of restitution is to compensate a person who, because of the criminal activity, suffers physical injury or property loss.  These losses may be proximally caused and are payable to the victim if you have been convicted of a qualifying offense.

Like fines, restitution in federal criminal cases is most often set forth in statutes. Examples of federal crimes where restitution would be ordered include crimes of violence crimes of fraud, and federal crimes involving child exploitation and child pornography. See 18 U.S. Code § 3663A. In these instances, the court is required to order restitution.

However, there does not have to be a specific statute with a specific restitution provision covering your crime for the Federal District Court Judge to order restitution in your case.  Such a judge has the power to order restitution following a conviction for pretty much any federal crime and might do so because it was part of the plea negotiations between your Federal Criminal Law lawyer and the Assistant United Stated Attorney. A Federal District Court Judge can also make payment of restitution a condition of probation.

Examples of expenses reimbursable as restitution include verified lost income, medical expenses, and necessary childcare.  Also, a court can order restitution to compensate a victim for the cost of, transportation to and from court to attend related court hearings, such as sentencing or restitution hearings.

The means and manner of collection of restitution is set forth in chapter 229 of the United States Code. According to 18 U.S. Code § 3611, 1 Director of the Administrative Office of the United States Courts specifies how and to whom restitution is paid, and usually this is to the court itself. 18 U.S. Code § 3612 addresses unpaid restitution and indicates that the Attorney General is responsible for collection of unpaid restitution.

According to 18 U.S. Code § 3613, the AG may use all the “practices and procedures” that would otherwise be applicable to the enforce any other kind of civil judgment and may do so according to both Federal and State law. This essentially means that the AG is bound by the Fair Debt Collection Practices Act.

However, according to Michigan Consumer Law Attorney Ian Lyngklip, the FDCPA does not authorize any specific collection mechanism.  Instead, it bars use of unfair, misleading, and deceptive techniques to collect the debt.  Normally, federal courts use the collection tools provided for under the law of the state where the court sits.  So, for instance, for a criminal case in the Eastern District of Michigan, the AG would be required to draw from and apply the substantive law of Michigan in its collection efforts.

Regarding equity in a person’s home, the AG cannot “execute” on the property unless there is equity. It is exceedingly unlikely that the AG would force the sale of a home, especially if someone else lives in it. Instead, they would file a lien for restitution due, and this lien would stay in the chain of title until the home is sold, at which time the government would be paid.

Additionally, if the property is jointly owned, the AG should also not be able to execute on the home. The AG may be able to execute on any interest owned by you, but they cannot force a sale of property held by someone else.  This is true in a marriage situation because in Michigan married couples most often hold real property (such as a residence) as “Tenants by the Entirety.”

In Tenancy by the Entirety two married people both have an interest and ownership in the entire property, also called an undivided whole. This means that neither spouse can sell the property without the others consent, and, creditors, even the federal government, cannot enforce liens on the property by forcing a sale.

It would appear therefore, that the government can attempt to collect on your “half” of the equity by filing a lien against the home but cannot otherwise force a sale.

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