Federal Law vs State Law

[Krystalbubbles]

What is the name of your state? Oklahoma

Ok, I know that federal supercedes state. Well, in my case the state law is being enforced rather than the federal law. What recourse do I have in a matter where social security was allowed to be garnished for a credit card? The federal law states that it is exempt from 'other legal process'. Well, the way that it's explained leads me to believe that when the bank froze my account, the bank was using 'other legal process' in doing so.

Thus, "other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability. This conclusion is confirmed by the definition of "legal process" in the Social Security Administration's Program Operations Manual System (POMS).

Am I correct in my interpretation of this? Also, if this is in fact the correct way of looking at this, what type of attorney do I need to obtain to fight this in court?

Sorry to be such a pain here and thanks for being supportive and helpful in this matter.

Thank you,
Stephanie

 

[zippysgoddess]

When you have a judgment against you, your creditors will grab onto whatever money they can, be it a bank account or whatever. THey just want their money, and really have no way of knowing, or caring, where that money in your bank account came from. Now the burden is on you to prove it was SS funds, which are exempt, and fighting them to get it all back.

Good luck, because once they get ahold of some cash from you, they do not easily give it up again, either.

 

[Krystalbubbles]

Thank you for your reply. However, it's been proven that the money was social security. The judge denied the exemption, contrary to the law and I am appealing that with a legal aid attorney. I provided proof that the only funds were from social security but he denied it.

The question here deals with the bank freezing the account. Which due to the above referrenced quote, they cannot do that. See, direct deposited social security is still protected under the social security act because it is easily identifiable as social security funds.

My question is what type of attorney would I need to contact to take the bank into court over this isse? They were the ones that violated the section 207 of the social security act by enforcing 'other legal process' when they froze the account (which they cannot do according to the act itself). They were enforcing a state law when according to the law of supremecy, the federal law applies.

Thanks,
Stephanie

 

[Ladynred]

Hang on. The bank isn't at fault here. The bank gets served with a levy and they have no choice but to obey the court order to freeze your account. Whether they knew the funds were SS or not, it doesn't matter, its up to the judgment debtor to file the necessary exemptions to keep money and property from being seized.

I don't know how a judge can deny this exemption, FEDERAL law prevails in this case. OK law ALSO exempts Social Security beneifts.

Per OK Statute:

§56‑173. Assistance inalienable.
All rights to assistance under this act shall be inalienable by any assignment, sale or transfer; and said assistance shall not be subject to execution, attachment, garnishment or other process, and in the case of bankruptcy, the assistance shall not pass to or through any trustee or any other person acting on behalf of creditors. Any contract or transfer or assignment or sale made contrary to the provisions of this act shall be void.

And this:

§12-1174. Notice to defendant of garnishment proceedings.
A. In all cases of garnishment before judgment, the defendant in the principal action shall be given notice of the issuance in said action of any garnishee summons, the date of issuance of said summons, and the name of the garnishee.
B. In all cases of garnishment for the collection of child support, the defendant shall be given notice as required by this section.
C. In all cases of postjudgment garnishment, the court clerk shall attach notice, in a form prescribed by the Administrative Director of the Courts, with the garnishment, in the manner provided by Section 1172.2 of this title that the defendant may be entitled to claim an exemption for any assistance received pursuant to the terms of the Federal or Oklahoma Social Security Act and other exemptions that may be available to the defendant, and that any such claim should be filed with the court clerk within five (5) days from receipt of notice in a form prescribed by the Administrative Director of the Courts, requesting a hearing as to the status of any assets which the defendant asserts are exempt. Any proceeding to claim an exemption initiated subsequent to five (5) days after receipt of notice shall be by motion unless otherwise agreed by the parties.
D. Said notification may be accomplished by:
1. Serving a copy of the garnishee summons on the defendant or on his attorney of record in the manner provided for the service of summons; or
2. Sending the notice or a copy of the garnishee summons to the defendant or his attorney of record by registered or certified mail with return receipt requested, which receipt shall be filed in the action; or
3. Attaching the notice on the summons issued in the principal action prior to its service; or
4. Including the notice in the publication notice when service in the principal action is by publication; or

That refers to wage garnishment, but the exemptions are the same.

This collection agency/attorney that sued you wouldn't be Love, Beal and Nixon would it ??

 

[Krystalbubbles]

Sorry, it was the law offices of Stephen Bruce. I sent them a copy of my bank statements as they asked so they knew that the only funds were social security, yet still proceeded.

They could have said in court that they weren't going to proceed any further since the funds were social security only, but they didn't. The judge asked them what the attorney present what he wanted to do and when he didn't respond, just shrugged his shoulders, the judge said "exemption denied, exception noted", and that was it.

I provided full proof that the funds were exempt, the attorney for the cc, the judge and of course myself. I was even prepared with a copy of the federal rule, and they both refused to even look at that.

 

[Ladynred]

Well, I hope this legal aid lawyer can help you, that's a load of CRAP ! The judge can't just allow them to take funds that the FEDERAL gov't AND the State of OK says are UNTOUCHABLE !! I hope this lawyer is going to file an appeal, you need one !

 

[Krystalbubbles]

Thanks! He filed for a rehearing last week and the new hearing is set on December 20th. He cited the Sear, Roebuck and Company vs. Harris as precident (I hope I said that right?).

I have a whole textbook of mental health conditions and this didn't help at all. No money = no medication = a very hyper/hypo manic person = not a person you want to be around...

On the plus side...check came today, got meds today....not on the way to the loony bin after all (at least I hope not?).

Oh well, thanks for the reply!
Stephanie

 

[Krystalbubbles]

Garnishment" constitutes a sub-category of "attachment," referring to the seizure or attachment of property belonging to or owing to the debtor, but which is presently in the possession of a third party. Thus the "attachment" of a bank account is technically a "garnishment" of funds, since assets are in the hands of a third party, the bank, when they are seized by legal process.

Doesn't this apply as a definition of 'freezing' a bank account?