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PostPosted: Sun Jul 16, 2006 3:23 pm 
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Contact Resource Services, LLC v. Gregory
10 Misc.3d 968, 806 N.Y.S.2d 407
N.Y.City Ct.,2005.
Dec 19, 2005

The Social Security Act's "anti-attachment" provision, 42 U.S.C. § 407(a), protects Social Security benefits against "execution, levy, attachment, garnishment, or other legal process." The Supreme Court has observed that Section 407 "imposes a broad bar against the use of any legal process to reach all security benefits." Philpott v. s* County Welfare Bd., 409 U.S. 413, 417, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973). Accord Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988); In re Buren, 725 F.2d 1080, 1084 (6th Cir.), cert. denied, 469 U.S. 818, 105 S.Ct. 87, 83 L.Ed.2d 34 (1984). The "anti-attachment" provision recognizes that because Social Security payments are intended to meet the beneficiaries' most basic needs, those funds must be immune from creditors unless Congress expressly provides otherwise. See In re Buren, 725 F.2d at 1084 (citing legislative history); Dionne v. Bouley, 757 F.2d 1344, 1355 (1st Cir.1985). Accordingly, Elizabeth Gregory's Social Security Disability income is exempt from seizure by creditors, and plaintiff is barred from using enforcement mechanisms to collect its judgment from her SSD benefits. See State v. Jacobs, 167 A.D.2d 876, 876-77, 561 N.Y.S.2d 972 (4th Dep't 1990).
[2] Notwithstanding Section 407(a)'s broad proscription, Ms. Gregory seeks additional protection from the Court. Her concerns arise from the fact that when a creditor attempts to collect a money judgment from a debtor, New York law gives the creditor the right to serve a Restraining Notice on a debtor's bank. See N.Y. CPLR § 5222. This Restraining Notice forbids the bank from releasing any funds in the debtor's bank account to:
any person other than the sheriff ... except upon direction of the sheriff or pursuant to an order of *972 the court, until the expiration of one year after the notice is served upon him or her, or until the judgment or order is satisfied or vacated, whichever event first occurs.
N.Y. CPLR § 5222(b).


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PostPosted: Sun Jul 16, 2006 3:39 pm 
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Allegations that credit corporation threatened to garnish consumer's social security benefits without right or permission to do so supported claim alleging that such conduct violated anti-attachment provision of Social Security Act, which exempted social security funds from "execution, levy, attachment, garnishment, or other legal process." 42 U.S.C.A. § 407(a).

Albright v. Allied Intern. Credit Corp.
Not Reported in F.Supp.2d, 2003 WL 22350928
C.D.Cal.,2003.
Aug 25, 2003


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PostPosted: Sun Jul 16, 2006 3:43 pm 
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B. Anti-Attachment Provision of the Social Security Act (42 U.S.C. § 407)
[3] In her fourth claim plaintiff alleges that defendants violated section 407 by "threatening to garnish plaintiff's social security funds when they had no right or permission to do so." Complaint, ¶ 50. Section 407(a) exempts social security funds from "execution, levy, attachment, garnishment, or other legal process...." Plaintiff asserts that the threat to garnish her social security benefits is covered by the statutory language "other legal process" in section 407(a). In support of this argument, plaintiff relies on King v. Schafer, 940 F.2d 1182 (8th Cir.1991), which held that a threat by the Missouri Department of Mental Health of legal process against representative payees of social security disability benefits for involuntarily committed patients was "other legal process" within the meaning of section 407(a).
Allied contends that the Supreme Court's recent holding in Wash. State Dept. of Soc. and Health Svcs., v. Guardian Estate of Keffeler, 537 U.S. 371, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003), overrules King and requires dismissal of plaintiff's fourth claim. In Keffeler, a case addressing whether the State of Washington's use of social security benefits received in its capacity as a representative payee of foster care children to reimburse itself for initial expenditures incurred on behalf of foster care children was an "other legal process" for purposes of section 407(a), the Supreme Court held:
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.
*3 Washington State Dept. of Social and Health Services, supra at 1024.
The Supreme Court's holding in Keffeler does not appear to require dismissal of plaintiff's fourth claim for relief. As quoted supra, in Keffeler the Court held that the term "other legal process" should be understood as referring to the "utilization of some judicial or quasi-judicial mechanism." Keffeler, 123 S.Ct. 1024. However, the Court did not discuss, much less overrule, what appears to be a strong judicial precedent which spans at least four circuits and finds its root in Congressional intent - namely, that "the term 'or other legal process' [encompasses] implied or express threats of formal sanctions, as well as the sanctions themselves." Moore v. Colautti, 483 F.Supp. 357, 368 (E.D.Pa.1979) ("We agree with plaintiffs that Congress intended the term "or other legal process" to encompass implied or express threats of formal sanctions, as well as the sanctions themselves or formal legal machinery."); King, 940 F.2d at 1185 ("What [a party] cannot do, it cannot threaten to do" for purposes of § 407(a)). [FN1] As such, the Court declines to find that the Supreme Court's holding in Keffeler requires dismissal of the fourth claim for relief. Accordingly, the motion to dismiss the fourth claim for relief is also denied.
FN1. The Court Keffeler noted that:
The poor fit between § 407(a) and respondents' argument points to the real basis of their objections to the reimbursement practice. At bottom, respondents' position and the State Supreme Court's holding reflect a view that allowing a state agency to reimburse itself for the costs of foster care in antithetical to the best interest of the beneficiary foster child. See 145 Wash.2d at 17, 32, 32 P.3d 267 P.3d st 275 (contending that a foster child "is better off with any payee other than the [department] because [the department] must provide foster case under state law regardless of whether it receives a reimbursement" (emphasis in original)); id., at 24, 32 P.3d at 278 ("We seriously doubt using [Social Security] benefits to reimburse the state for its public assistance expenditure is in all cases, or even some, 'in the best interests of the beneficiary" ' (quoting 20 CFR § 404.2035(a))).
Keffeler 123 S.Ct. at 1027-28.

Albright v. Allied Intern. Credit Corp.
Not Reported in F.Supp.2d, 2003 WL 22350928
C.D.Cal.,2003.
Aug 25, 2003


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