Jonathan Ginsberg posted an interesting article on the National Association of Chapter 13 trustees web site this weekend, that will be relevant to many of our readers as well. Social security is now requiring all beneficiaries to set up direct deposit, which means the resulted funds could become available to executing creditors if there are any funds from any other source in the account as well. You might recall my blog about this some time back, which contains cites to some of the relevant law.

As my previous blog explains, Federal law provides that Social Security payments are exempt from garnishment from civil creditors. If, for example, a credit card lender sues you and obtains a judgment, that creditor cannot ask Social Security to withhold funds from your government check. While these protections do not apply with equal force to the IRS collecting a tax debt or a creditor collecting child support, all other creditors are not to touch social security funds under any circumstances.

There is however, a rub. Under the applicable law, Social Security money (SSA) that is co-mingled with non-Social Security money may lose this special protection. Here is what Jonathan Ginsberg says recipients should do:

“Social Security recipients can protect themselves by asking their bank to create a sub-account that holds onl y SSA issued funds. No money other than SSA funds should ever be deposited into this account. This is especially necessary if the recipient has civil judgment creditors looking for a source of funds to levy against.

In my practice, I have represented a number of senior citizen clients who are living with tens of thousands of dollars in credit card debt, have no assets or equity in property, and who survive on Social Security only. In these cases I often discourage bankruptcy and instead write each creditor advising the creditor that my client is judgment proof with no source of funds that can be garnished.

At the same time I write the credit card company, I also draft a letter to my client’s bank, putting the bank on notice that it should not honor any garnishment because the sole source of funds is Social Security money. Often, however, I find that my clients are using their “Social Security” account as a regular bank account and they deposit other money, such as funds generated from a garage sale or a gift from a relative. I spend a lot of time explaining to my client that even a few dollars of co-mingled money may jeopardize the protected status of their Social Security bank account.

Now that many more Social Security recipients are entering the electronic banking world, I expect that more than a few will find themselves trying to get money back from a judgment creditor who found a co-mingled account. Sometimes, senior citizens choose to file bankruptcy for the peace of mind benefit, but often a Chapter 7 or Chapter 13 filing is not necessary – instead many creditors and collection agencies will write off your debt and close their files if you can show that you are judgment proof. If you are receiving Social Security money, I urge you to take time now – before a judgment creditor begins collection efforts – to protect your bank accounts.”

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Nathalie Martin joined the University of New Mexico law faculty in 1998. Her research focuses on consumer law and bankruptcy, as well as elder law. Most recently, she has studied predatory lending products such as payday loans and title loans, as well as products and services offered to the elderly. Her projects include several empirical studies funded by the National Conference of Bankruptcy Judges, including one that funded curbside interviews of payday loan customers and an ongoing study of the credit habits of undocumented New Mexicans.  The author of several books and dozens of law review articles, she holds what is thought to be the only endowed chair in the country dedicated to consumer law issues.