.jpg)
CCP 703.140(10)
Dear Pat,
You're absolutely correct. The second paragraph of article VI of the U.S. Constitution means that state exemptions do not protect a debtor's assets from the feds. I confess to poor wording of my post.
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist - State Bar of California Board of Legal Specialization
Commissioner, California State Bar's Bankruptcy Law Advisory Committee
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Law Offices of Nicholas Gebelt
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Nick: the supremacy clause makes the state exemptions unenforceable against the cited federal statutes. PG
Sent from my Verizon Wireless 4G LTE smartphone
com>
Date: 01/11/2016 1:33 PM (GMT-08:00)
To: cdcbaa@yahoogroups.com
Cc: ngebelt@goodbye2debt.com
Subject: RE: [cdcbaa] CCP 703.140(10)
Dear Michael,
Within the bankruptcy context either Cal. Civ. Code 703.140(b)(10)(A), or 704.080(c), protects all social security payments from the depredations of the Chapter 7 Trustee.
Unfortunately, 42 U.S.C. 407(a) protects social security payments from most, but not all, seizures. See Lockhart v. United States, 546 U.S. 142 (2005) (all payment due an individual under . . . the Social Security Act . . . shall be subject to offset under this section. 31 U.S.C. 3716(c)(3)(A)(i).). In Lockhart, the Court held that 31 U.S.C. 3716(c)(3)(A)(i) permitted the United States to garnish social security payments to pay a delinquent student loan liability because that statute explicitly excludes the protection of 42 U.S.C. 407 from its ambit.
In fact, 31 U.S.C. 3716(c)(3)(A)(i) occurs in a much broader context than just the collection of student loan debt. Therefore, I think it might better to appeal to one of the two California Civil Code subsections rather than to 42 U.S.C. 407(a) when protecting social security in bankruptcy, and to 704.080(c) when protecting social security payments outside of bankruptcy (since the feds can use 31 U.S.C. 3716(c)(3)(A)(i)).
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist State Bar of California Board of Legal Specialization
Commissioner, California State Bars Bankruptcy Law Advisory Committee
[Description: Description: Description: cid:image003.jpg@01CC076B.B14D73C0]
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX: 562.946.1365
Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com
Web: www.goodbye2debt.com
Blog: www.southerncaliforniabankruptcylawblog.com/
Important notice required by 11 U.S.C. 528: We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: This e-mail is intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient, or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: If you have not signed a contract of representation, the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
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https://www.law.cornell.edu/uscode/text/42/407
Sincerely,
*Michael Avanesian, Esq. *
Avanesian Law Firm
801 N. Brand Blvd., Suite #1130
Glendale, CA 91203
Tel: 818.276.2477 | Fax: 818.208.4550
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On Mon, Jan 11, 2016 at 9:26 AM, Patrick Green pat@fitzgreenlaw.com
[cdcbaa] wrote:
>
>
> (c) requires proof that it is SS. SS should always be kept in a separate
> account and never commingled. SS funds are also exempt under fed law, but
> I am not in my office to find the cite.
>
> PG
>
> Sent from my Verizon Wireless 4G LTE smartphone
>
>
> -------- Original message --------
> cdcbaa@yahoogroups.com>
> Date: 01/11/2016 9:14 AM (GMT-08:00)
> To: cdcbaa@yahoogroups.com
> Subject: RE: [cdcbaa] CCP 703.140(10)
>
>
>
> Thanks Pat.
>
>
>
> Having reviewed that I now have another issue:
>
>
>
> (b)(2) limits it to $2,425. Then (c) opens it up again to an unlimited
> amount.
>
>
>
> So what the heck is the purpose of limiting it in (b)(2) in the first
> place?
>
>
>
> Steve
>
>
>
>
>
> (2) Social security benefits means payments authorized by the Social
> Security Administration for regular retirement and survivors benefits,
> supplemental security income benefits, coal miners health benefits, and
> disability insurance benefits. Public benefits means aid payments
> authorized pursuant to subdivision (a) of Section 11450 of the Welfare and
> Institutions Code, payments for supportive services as described in Section
> 11323.2 of the Welfare and Institutions Code, and general assistance
> payments made pursuant to Section 17000.5 of the Welfare and Institutions
> Code.
>
> (b) A deposit account is exempt without making a claim in the following
> amount:
>
> (1) One thousand two hundred twenty-five dollars ($1,225) where one
> depositor is the designated payee of the directly deposited public benefits
> payments.
>
> (2) Two thousand four hundred twenty-five dollars ($2,425) where one
> depositor is the designated payee of directly deposited social security
> payments.
>
> (3) One thousand eight hundred twenty-five dollars ($1,825) where two or
> more depositors are the designated payees of the directly deposited public
> benefits payments, unless those depositors are joint payees of directly
> deposited payments that represent a benefit to only one of the depositors,
> in which case the exemption under paragraph (1) applies.
>
> (4) Three thousand six hundred fifty dollars ($3,650) where two or more
> depositors are the designated payees of directly deposited social security
> payments, unless those depositors are joint payees of directly deposited
> payments that represent a benefit to only one of the depositors, in which
> case the exemption under paragraph (2) applies.
>
> (c) The amount of a deposit account that exceeds the exemption provided in
> subdivision (b) is exempt to the extent that it consists of payments of
> public benefits or social security benefits
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Monday, January 11, 2016 9:07 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] CCP 703.140(10)
>
>
>
>
>
> Steve:
>
>
>
> Use 704.080(c).
>
>
>
> PG
>
>
>
>
>
>
>
> Sent from my Verizon Wireless 4G LTE smartphone
>
>
>
> -------- Original message --------
> cdcbaa@yahoogroups.com>
> Date: 01/11/2016 6:32 AM (GMT-08:00)
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] CCP 703.140(10)
>
>
>
> I have a client who received a large lump sum social security back payment
> that will be in excess of the wildcard exemption.
>
>
>
> CCP 703.140(10)
>
> (10) The debtor's right to receive any of the following:
>
> (A) A social security benefit, unemployment compensation, or a
>
> local public assistance benefit.
>
>
>
> Does this include the cash itself, or just the right to receive cash?
>
>
>
> Steve
>
>
>
> Law Offices of Steven B. Lever
>
>
>
> Steven B. Lever
>
> ( Tel. (562) 436-5456 ext. 1
>
> ( Fax (562) 485-6886
>
> * sblever@leverlaw.com
>
> www.leverlaw.com
>
> ******************************************************
>
> This Internet e-mail contains confidential information
>
> which is intended only for the addressee and which may
>
> be privileged under applicable law. Do not read, copy
>
> or disseminate it if you are not the addressee. If you
>
> have received this message in error, please notify the
>
> sender immediately and delete it. Thank you.
>
> ******************************************************
>
>
>
>
>
https://www.law.cornell.edu/uscode/text/42/407
The post was migrated from Yahoo.
(c) requires proof that it is SS. SS should always be kept in a separate account and never commingled. SS funds are also exempt under fed law, but I am not in my office to find the cite.
PG
Sent from my Verizon Wireless 4G LTE smartphone
.com>
Date: 01/11/2016 9:14 AM (GMT-08:00)
To: cdcbaa@yahoogroups.com
Subject: RE: [cdcbaa] CCP 703.140(10)
Thanks Pat.
Having reviewed that I now have another issue:
(b)(2) limits it to $2,425. Then (c) opens it up again to an unlimited amount.
So what the heck is the purpose of limiting it in (b)(2) in the first place?
Steve
(2) "Social security benefits" means payments authorized by the Social Security Administration for regular retirement and survivors' benefits, supplemental security income benefits, coal miners' health benefits, and disability insurance benefits. "Public benefits" means aid payments authorized pursuant to subdivision (a) of Section 11450 of the Welfare and Institutions Code, payments for supportive services as described in Section 11323.2 of the Welfare and Institutions Code, and general assistance payments made pursuant to Section 17000.5 of the Welfare and Institutions Code.
(b) A deposit account is exempt without making a claim in the following amount:
(1) One thousand two hundred twenty-five dollars ($1,225) where one depositor is the designated payee of the directly deposited public benefits payments.
(2) Two thousand four hundred twenty-five dollars ($2,425) where one depositor is the designated payee of directly deposited social security payments.
(3) One thousand eight hundred twenty-five dollars ($1,825) where two or more depositors are the designated payees of the directly deposited public benefits payments, unless those depositors are joint payees of directly deposited payments that represent a benefit to only one of the depositors, in which case the exemption under paragraph (1) applies.
(4) Three thousand six hundred fifty dollars ($3,650) where two or more depositors are the designated payees of directly deposited social security payments, unless those depositors are joint payees of directly deposited payments that represent a benefit to only one of the depositors, in which case the exemption under paragraph (2) applies.
(c) The amount of a deposit account that exceeds the exemption provided in subdivision (b) is exempt to the extent that it consists of payments of public benefits or social security benefits
The post was migrated from Yahoo.
Thanks Pat.
Having reviewed that I now have another issue:
(b)(2) limits it to $2,425. Then (c) opens it up again to an unlimited amount.
So what the heck is the purpose of limiting it in (b)(2) in the first place?
Steve
(2) "Social security benefits" means payments authorized by the Social Security Administration for regular retirement and survivors' benefits, supplemental security income benefits, coal miners' health benefits, and disability insurance benefits. "Public benefits" means aid payments authorized pursuant to subdivision (a) of Section 11450 of the Welfare and Institutions Code, payments for supportive services as described in Section 11323.2 of the Welfare and Institutions Code, and general assistance payments made pursuant to Section 17000.5 of the Welfare and Institutions Code.
(b) A deposit account is exempt without making a claim in the following amount:
(1) One thousand two hundred twenty-five dollars ($1,225) where one depositor is the designated payee of the directly deposited public benefits payments.
(2) Two thousand four hundred twenty-five dollars ($2,425) where one depositor is the designated payee of directly deposited social security payments.
(3) One thousand eight hundred twenty-five dollars ($1,825) where two or more depositors are the designated payees of the directly deposited public benefits payments, unless those depositors are joint payees of directly deposited payments that represent a benefit to only one of the depositors, in which case the exemption under paragraph (1) applies.
(4) Three thousand six hundred fifty dollars ($3,650) where two or more depositors are the designated payees of directly deposited social security payments, unless those depositors are joint payees of directly deposited payments that represent a benefit to only one of the depositors, in which case the exemption under paragraph (2) applies.
(c) The amount of a deposit account that exceeds the exemption provided in subdivision (b) is exempt to the extent that it consists of payments of public benefits or social security benefits
The post was migrated from Yahoo.
Steve:
Use 704.080(c).
PG
Sent from my Verizon Wireless 4G LTE smartphone
.com>
Date: 01/11/2016 6:32 AM (GMT-08:00)
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] CCP 703.140(10)
I have a client who received a large lump sum social security back payment that will be in excess of the wildcard exemption.
CCP 703.140(10)
(10) The debtor's right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a
local public assistance benefit.
Does this include the cash itself, or just the right to receive cash?
Steve
Law Offices of Steven B. Lever
Steven B. Lever
* Tel. (562) 436-5456 ext. 1
* Fax (562) 485-6886
* sblever@leverlaw.com
www.leverlaw.com
******************************************************
This Internet e-mail contains confidential information
which is intended only for the addressee and which may
be privileged under applicable law. Do not read, copy
or disseminate it if you are not the addressee. If you
have received this message in error, please notify the
sender immediately and delete it. Thank you.
******************************************************
Steve:
Use 704.080(c).
PG
Sent from my Verizon Wireless 4G LTE smartphone
a@yahoogroups.com>
Date: 01/11/2016 6:32 AM (GMT-08:00)
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] CCP 703.140(10)
I have a client who received a large lump sum social security back payment that will be in excess of the wildcard exemption.
CCP 703.140(10)
(10) The debtor's right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a
local public assistance benefit.
Does this include the cash itself, or just the right to receive cash?
Steve
Law Offices of Steven B. Lever
Steven B. Lever
(
Tel. (562) 436-5456 ext. 1
(
Fax (562) 485-6886
*
sblever@leverlaw.com
www.leverlaw.com
******************************************************
This Internet e-mail contains confidential information
which is intended only for the addressee and which may
be privileged under applicable law. Do not read, copy
or disseminate it if you are not the addressee. If you
have received this message in error, please notify the
sender immediately and delete it. Thank you.
******************************************************
The post was migrated from Yahoo.
I have a client who received a large lump sum social security back payment that will be in excess of the wildcard exemption.
CCP 703.140(10)
(10) The debtor's right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a
local public assistance benefit.
Does this include the cash itself, or just the right to receive cash?
Steve
Law Offices of Steven B. Lever
Steven B. Lever
* Tel. (562) 436-5456 ext. 1
* Fax (562) 485-6886
* sblever@leverlaw.com
www.leverlaw.com
******************************************************
This Internet e-mail contains confidential information
which is intended only for the addressee and which may
be privileged under applicable law. Do not read, copy
or disseminate it if you are not the addressee. If you
have received this message in error, please notify the
sender immediately and delete it. Thank you.
******************************************************
I have a client who received a large lump sum social security back payment that will be in excess of the wildcard exemption.
CCP 703.140(10)
(10) The debtor's right to receive any of the following:
(A) A social security benefit, unemployment compensation, or a
local public assistance benefit.
Does this include the cash itself, or just the right to receive cash?
Steve
Law Offices of Steven B. Lever
Steven B. Lever
(
Tel. (562) 436-5456 ext. 1
(
Fax (562) 485-6886
*
sblever@leverlaw.com
www.leverlaw.com
******************************************************
This Internet e-mail contains confidential information
which is intended only for the addressee and which may
be privileged under applicable law. Do not read, copy
or disseminate it if you are not the addressee. If you
have received this message in error, please notify the
sender immediately and delete it. Thank you.
******************************************************
The post was migrated from Yahoo.