I was disabled 4 1/2 years ago and incurred some unsecured debt. A creditor has filed suit on 3/1. Can the creditor attach my bank account when the only deposit to my account is from social security?
Social Security Lawyers
I will repost under debt collection so you get more information.
Social Security benefits are exempt from garnishment except in cases where the debt is owed to the government or to satisfy a child support order. Until about May 2011, a person receiving Social Security benefits would have to prove to the bank that the income was exempt – many times after it had already been garnished. But the U.S Department of Treasury now requires banks to be proactive and protect Social Security and some other federal benefits from garnishment.
Any benefits that are directly deposited into the account are protected from garnishment up to a value of two months' payments or the value of the account, whichever is less. When a bank receives a garnishment order, it must review the account and protect any federal benefits directly deposited into the account during the previous two months. So, for example, if you get a direct deposit of Social Security benefits of $2,000 each month, any amount of $4,000 or less in your account at the time of the garnishment would be safe Any money in your account over the equivalent of two months of your benefit amount would not be protected and could be garnished.
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Chapter 7 Bankruptcy Attorney
Generally a creditor that is not the federal government cannot garnish your Social Security benefits. If they do, it violates the Social Security Act (see link below). However, they can attach your bank account. You and/or your attorney should stop them by filing informing the creditor they are breaking the law, if in fact that is your only income. The burden of proving that it is actually the money from SSDI that is getting garnished is on you.
Make sure you have your facts straight in that the only income shown in the account is SSDI and you should be fine. I highly recommend an attorney and asking that attorney to try to get his/her attorney fees paid along with damages from this case. This is a serious federal violation that should be taken to federal court with an attorney.
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Criminal Defense Attorney
I agree with my colleagues. Make sure that you do not commingle your funds with any other monies also.
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Other lawyers have told you that the creditor should not be able to keep your SS money. That's the law and they've given good advice.
However, don't just think that's the end of it.
This rule about SS money being exempt means that if they take it, you can go to court and force them to give it back. That likely will be an expensive process and for sure will be a long process. If you don't end up spending as much on getting it back as you were trying to keep from them in the first place, you're at least going to without the use of that money for awhile.
So just in case you were going to think that since the money is exempt you can just ignore the lawsuit, don't do that.
Instead, start thinking about what practical steps you can take now that might dissuade them from garnishing the account after they get a judgment. One step would be to fight the lawsuit and win it. Another way would be to make sure the creditor is well aware ahead of time that the garnishment would be improper. (Don't just call them, make sure this is in writing and sent certified so you can actually prove this later, if you ever need to.)
I am sure you can think of some other proactive things to start doing now. Those were just off the top of my head. The point is: just because you can WIN the war doesn't mean you want to HAVE a war. If it can be avoided, that is.
Hope this helps.
Social Security Lawyers
You need a lawyer right away. You have until the first Monday after the day you were served to answer the suit. It will get worse if you do not have an answer on file by 10 AM on that Monday! Even a handwritten sentence that generally denies the claim is enough to protect you from a default but you will still need an attorney to resolve this.
-Marion W. Cain Law Offices of Marion W. Cain, P.C., 127 Lewis Street, San Antonio, Texas 78212 (210) 226-2161 website: www.marioncainlaw.com email: firstname.lastname@example.org. This posting is provided for “information purposes” only and should not be relied upon as "legal advice". Nothing transmitted from this posting constitutes the establishment of an attorney-client relationship.