Social Security

Social Security Law

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In general, Social Security benefits are Exempt from Creditors in the State of Florida, and the United States, but there are some exceptions where Social Security benefits are not Exempt, or protected from Creditors in the State of Florida, or protected from the Bankruptcy Trustee or Creditors, in Bankruptcy Proceedings.

One exception where Social Security benefits are not Exempt from Creditors in the State of Florida, or from the Trustee in Bankruptcy is where the Debtor commingles Social Security funds, with other monies, in a bank account. The Trustee or Creditor can argue that the Debtor has no means to differentiate between what was the Exempt portion of the bank account, namely Social Security benefits, and what portion of the bank account represents monies that are not Exempt, such as monies earned by a non Head of Family, in the State of Florida.

If you receive Social Security benefits and other forms of monies, that are not Exempt or protected under the laws of the State of Florida, then it is generally advisable that you keep monies from Social Security benefits separate from other forms of monies that are not Exempt under Florida State Law.

Commingling of Social Security monies and other monies in a single bank account can render the bank account unprotected against Creditors and possibly a Bankruptcy Trustee in a Bankruptcy.

You may wish to further have the bank account titled as a Social Security Account.

If you have a bank account in the State of Florida in which you deposit your Social Security check and it was garnished by a Creditor, or the Bankruptcy Trustee in Bankruptcy wants some or all of the proceeds of the bank account, you have numerous manners in which you can fight back!

Even if the bank account is found to be unprotected or not Exempt under Florida or Federal Law, as Social Security Benefits, under Florida Law you can claim the Florida Wildcard Exemption.

Social Security benefits are generally Exempt from Garnishment from Creditors or Seizure by a Bankruptcy Trustee in Bankruptcy. However, there are exceptions to this general rule.

Social Security benefits are not Exempt from Garnishment for Debts owed to the

  1. US Treasury;
  2. Child Support;
  3. Alimony

 

If the Creditor is pursuing a Debtor for a type a Debt other than that listed above, the Creditor will not Serve the Garnishment upon the Social Security Administration because the Social Security Administration is only enjoined to recognize a Garnishment for one of the above types of Debts.

 

The Creditor likely will Serve the Garnishment upon the bank in which you deposit your Social Security check. If the Creditor Garnishes your bank account or is able to place a freeze upon the monies in the bank account, then you have the Right under Florida Law and Federal Law, to have the return of the Social Security benefits, by proceeding in the local Court in which such Garnishment was instituted. Generally, in the State of Florida, such actions are instituted in the County Court in which the Debtor Resides. For example, if you live in Clearwater, Florida, then the Garnishment would likely be filed in the Pinellas County Courthouse in Clearwater. Not every City has a County Courthouse. Dunedin does not have its own County Courthouse. St Petersburg, being a large City, has a County Courthouse located there.

If you are able to prove in the Court in which the Garnishment of the monies in your bank account were Social Security benefits and therefore Exempt or protected from Garnishment under Federal Law and the Laws of the State of Florida, then you must take the Release of the Garnishment to your bank, in order that the Garnishment may be properly dissolved, and you can access the monies in your bank account.

If a Creditor has attached your benefits from Social Security, then you must present to a Judge in the County Court in which the Garnishment was begun by the Creditor, in Florida, that your benefits are Exempt as they are Social Security benefits.

 

20 CFR SSR 79-4:

Social Security benefits are exempt from execution, levy, attachment, garnishment, or other legal process, or from the operation of any bankruptcy or insolvency law.

The exceptions are (1) for the collection of monies owed to the US Treasury, and for the collection of monies owed for Child Support or Alimony.

 

Social Security Act, Section 207:

The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the monies paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.