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Bank withholding disability benefits


Margo
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A debt collector has a judgement against me for a debt they have yet to validate. I learned of this judgement from a bank I have an account with, which this debt collector put a restraining notice to garnishee this account. I recently had major surgery and was on disability for 6 weeks. I deposited 2 of my disability checks into this account before I was notified by the bank of the hold on this account. Prior to my surgery I had direct payroll deposits in this account. The amount of the account is small but I have been left desitute with absolutely no money to live on. I have done some investigation and I think someone- the bank or the debt collector has violated Civil Practice Law and Rules section 5222(e). I need help. Anyone have any ideas?

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First of all, when the bank notified you that your acct was being frozen, you should have received a form to object. You tell the bank that the income is disability and that disability cannot be used for garnishment.

Then go to the courthouse and file a motion to vacate the default judgment based on improper service. Tell the court you were not served.

The court will vacate the judgment. The plaintiff may set the lawsuit for rehearing and then you come back here and tell us what it is for, what is going on, etc. and we will see if we can help you defeat the lawsuit.

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I have had person to person and daily telephone contact with the bank for the past week and have gotten no where. The bank tells me they are reviewing the deposits and will fax me the copy of disability checks, but a week has gone by and each day I have called and am told it takes time. Any suggestions?

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some times it's better to write a letter with this kind of request, that way you have a written request if you need it for proof. I would fax and mail them a letter and reference the phone calls and give the name of the person you talked to, and the dates you contacted them.

That's just my 2 cent's, I don't know much about this kind of thing.

Good Luck!

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Any suggestions?

Yes. Seizing or freezing bank accounts that contain disability funds is illegal. Period. It is against federal law. The bank knows this and, just like the debt collector, they think that you don't. So, they do nothing about it. Don't think for a second that the bank doesn't know where your money is coming from.

Contact a disability attorney in your area - one who specializes in social security - and ask if they can help you. As ridiculous as it sounds, some people have even had to sue the bank itself to force the release of accounts containing social security money.

Don't be afraid of them simply because they're a bank. And don't be afraid of some idiot debt collector simply because they have a judgment against you. What they are doing is illegal.

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It would be a civil action.

There is no dispute that Social Security benefits which are directly deposited into the Defendant's account are exempt property, free from the reach of the Plaintiff's restraint and levy. Lincoln Financial Services, Inc. v. Miceli, 851 N.Y.S.2d 58; October 9, 2007, Decided.

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I went to the County Clerk's Office and reviewed the file of the judgement against me. I learned there was no court action taken in NY. An Affidavit of Facts Constituting the Claim, The Default, and the Amount Due was filed in South Carolina, County of Greenville. I found an Affidavit Of Service, signed by a Process Service Agency stating that he served me with a summons and formal complaint. The affidavit has a discription of me that no way matches what I look like and states he asked me if I was in active military service. I never saw or talked to anyone. The Judgement On Default was filed in NY with no date of Judgement entered. How could I be held in default if there was never a court date? Of interest, I did push the bank to give me copies of the Disability Checks I deposited in my frozen bank account and have demanded release of this money. I can not afford a lawyer and legal aid is so back logged. I am having a difficult time finding the proper Motion to Vacate A Default Judgement form to file on the www.nycourthelp.gov website. Any suggestions?

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Oh! This is TOO easy! LOL

CALL the judges chambers. A creditor got DH (when he was BF) with a default judgment. Claimed he was not in the service and served his daughter. He was in Iraq at the time S&SRA prevent this..... anyway, all he did was call the judge's chambers and he vacated the judgment on the spot. You may need to follow up with a form and most likely he will tell you which one.

Greenville is still really small southern townish and this will tick off the judge.

Once you get the judgment vacated in SC, take that to the Bank and the levy will stop.

You should be able to find the judges name on the original judgment...seach for Greenville County Court and the judge's name and you should be good to hook!

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