Social Security Recipients in Danger of Garnishment by Collectors

Social Security recipients face a risk not only from their own debt troubles but also those of  the people that take care of them. If you receive Social Security or take care of someone who does, you should know about this.

 

Secret Danger of Garnishment to Social Security Recipients and Others

As I have pointed out in my video about garnishing Social Security, Social Security benefits are exempt from most forms of garnishment. The notable exceptions to that rule is that they may be garnished by certain government entities and for child support.

Although Social Security benefits are exempt from most forms of garnishment, collectors sometimes attach and take them. When a collector garnishes a bank account,  the bank holds the funds for a time to allow you to fight the garnishment. In plain English, they “freeze” the account, and you can’t get your money.

As a practical matter, you may be unable to fight the garnishment. Thus if you have paid for bills with an account that holds Social Security benefits, it makes  sense to switch those benefits to another bank if that creditor later gets a judgment against you. Once they get a judgment, the debt collector will look for your assets. It will try to garnish any assets in a bank they have on file for you.

I realize this can be difficult or disruptive, but if you have paid an original creditor or debt collector out of an account, you must expect that account to be garnished – seized and taken away from you – if the debt collector manages to get a judgment.

If the debt collectors seized an account,  you may or may not be able to get the money back. There will certainly be a delay, and all the money in the account, up to the amount of the judgment, will be held by the bank and unavailable to you.

Debt collectors sometimes garnish the accounts of Social Security recipients because of their caretakers.

Social Security recipients are often elderly or disabled, needless to say. Many of these people need other people to do shopping for them. Or to hold their assets in one way or another to use for their benefit. This money is held in trust and should not be available to debt collectors going for the caretaker’s money.

Here is an example that might make it clearer. Assume that Tom is taking care of Mary, his 70 year old mother. She suffers from Altzheimer’s. Mary and Tom will frequently find it helpful to allow Tom to use Mary’s account to pay her bills. If Mary’s account contains only Social Security benefits, it should be beyond the reach of any creditor. And because the money is not Tom’s at all, it should never be reachable by Tom’s creditors.

However, sometimes debt collectors will discover that Tom is paying bills using Mary’s account.  If his name is on the account, or if he writes checks upon it, the debt collectors may attempt to garnish the account.

This is not as “evil” as it may first appear. From the debt collector’s point of view, how do they know what bills Tom is paying with the account? People often hide assets from debt collectors by using other people’s accounts. The law lets creditors go after the debtor’s money regardless of whose name it is in.

On the other hand, the impact on Mary of seizing her account for Tom’s debt can be devastating. Remember, the banks will freeze the account for a while to determine whether the debt collector can take it. During that time, the elderly person cannot pay her bills. She may be evicted, be unable to pay for medicine, or face other, life-threatening and disrupting events.

Get Legal Advice

If there is a judgment against you, seek the advice of a lawyer specializing in debt collection before linking anyone’s accounts to you in any way. In my opinion, the risk extends beyond just having your name on the account. If you sign checks for someone else and have a judgment against you, you may be putting this person at risk. Get legal advice and protect them and you.

Fair Debt Collection Practices Act (FDCPA)

The Fair Debt Collection Practices Act (FDCPA) is the centerpiece of legal protections for debtors against debt collectors. The law passed in its essential form in 1977, and its goal was to protect debtors against the abuses of debt collectors. This article discusses what makes this law great, and some of its limitations.

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The Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act (FDCPA)  was enacted to put an end to some of the worst practices of the debt collection industry. It’s been a very good law, but the debt collectors are still doing many of the things the law was designed to prevent. You may be able to sue them or stop them from suing you.

The Debt Collection Industry

Before the act, the debt collection industry routinely engaged in the most abusive sorts of behavior imaginable. They would call debtors at all hours of the day or night and subject them to streams of cursing and name-calling. They would discuss their debt with children, neighbors, and employers. Debt collectors also frequently misrepresented themselves as attorneys and threatened legal action which they were powerless to initiate. And they often attempted to, and did, collect debts that either never existed or were long unenforceable because of statutes of limitation or bankruptcy.

Whatever the staid spokespeople of the debt collection industry may say, this is the background of their industry. The Fair Debt Collection Practices Act, 15 U.S.C. Section 1692, et seq., was enacted to put a stop to these extreme behaviors in 1977.

But debtors are underrepresented by lawyers, however. And there has been an explosion of debt over the past decade. Thus, many of the old abuses still continue.

The FDCPA: A Pretty Good Law

Nevertheless, the FDCPA is in many ways a model piece of legislation. What makes the law so powerful is that, in addition to making certain enumerated acts illegal, the Act also more generally makes acts that are “oppressive,” “false or misleading representations,” or “unfair practices” illegal. This means that, whereas in most laws, the would-be wrongdoer is free to craft his actions around the specific language of the law and find “loopholes,” under the Fair Debt Collection Practices Act, at least, the consumer may argue that these actions are still unfair or oppressive. The Supreme Court has ruled that an “unfair” act can be shown by demonstrating that it is “at least within the penumbra” of some common law, statutory “or other established concept” of unfairness.

That’s pretty broad. The price for this flexibility, however, is that the remedies—what you get if you prove the case—are less powerful. And this may be why the practices are still occurring today.

As mentioned above, there are specific actions enumerated in the FDCPA, and these include most notably, suing on expired debts, filing suit in distant jurisdictions, publishing certain types of information regarding the debtor, calling outside of specified hours. And the list goes on. If the debt collector is acting in some highly offensive way, chances are he’s within the specific provisions of the Act. These can be found at 15 U.S.C. 1692c, d, e and f. You can find the specifics by Googling the Act or provision and determining whether the specific action you’re concerned about is within one of these provisions.