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LADYLAWYER
LADYLAWYER, Lawyer
Category: Legal
Satisfied Customers: 6531
Experience:  Civil; Family; HOA; Landlord/Tenant; Real Estate; Probate; Insurance; Immigration; Wills & Trusts
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Hello,Im a disabled veteran whose sole forms of income

Customer Question

Hello,

I'm a disabled veteran whose sole forms of income for over 5 years are SSDI and my VA retirement pay. Last year, a Nevada collections company I'm unfamiliar with garnished nearly $5000 from my Bank of America (BofA) account in California. I've tried to recover this money by repeatedly dealing with BofA (including their Legal Dept.) and by filing a "Claim of Exemption from Execution" with the Las Vegas Justice Court, but to no avail. Can you suggest what I should now to recover my federal benefits money which was supposed to be exempt from garnishment? I do not owe child support, alimony or have outstanding taxes. Thank you.
Submitted: 1 year ago.
Category: Legal
Expert:  LADYLAWYER replied 1 year ago.

LADYLAWYER : Hello, Thanks for choosing Justanswer.com! I look forward to helping you with legal information today.
Customer :

Hello.

Customer :

Would you like me to elaborate further before we begin?

LADYLAWYER : Hello and sorry for the delay. I lost all power here and was just able to get to my ipad.
LADYLAWYER : Can you please tell me if you ever tried setting a heating on your exemption notice, and if so, did the clerk or judge tell you that it was too late since the money had already been taken out of your account? It is not too late to do something, but I am just trying to figure out where you are in the process and if you ever sought a hearing. Thanks!
Customer :

Hello again. I submitted a Claim of Exemption of Execution electronically last November (after my paper submission was returned with e-filing requirements) and found out last week that my case is designated "returned execution" as of Jan 2, 2013.

LADYLAWYER : Thanks. So no attempt at a hearing, correct? As far as calling the judge's assistant or plaintiff attorney to try and schedule one?
LADYLAWYER : If not, you may try calling the judicial assistant of the judge assigned to your case to see if he or she will schedule a hearing on your claim of exemption. If s/he says too much time has passed, then you will either need to file another one OR file a motion to set aside/quash the deduction from your account and get a hearing on that.
LADYLAWYER : Once you file something, a hearing needs to be scheduled.
Customer :

I'm not sure. Isn't filing that claim my attempt to go to court? Also, what do you think "Returned Exemption" means regarding my case?

LADYLAWYER : Different jurisdictions have different rules, and many of them automaticlly schedule hearings if a party is pro se like you (representing themselves). But there are many out there that don't schedule hearings without the party calling and asking that it be done.
LADYLAWYER : It depends on how the clerk is coding it. To find out, you will need to call the clerk of court and ask. They can tell you straight away. Do you need that number?
LADYLAWYER : I can also try to find the JA's number for you if you have the judge's name.
Customer :

Certainly, if you have it. The judge was William Kephart (Dept 06)

LADYLAWYER : Thank you. The Clark's number is(NNN) NNN-NNNN There, you can ask about what the code "returned exemption" means.
LADYLAWYER : As for Judge Kephart, his Judicial Executive Assistant is Minddie Lloyd(NNN) NNN-NNNN
LADYLAWYER : You will call her to ask about what the judge would like you to do at this point. Tell her you need to get a hearing on your exemption because this creditor has taken your SSDI and VA retirement pay.
Customer :

On that note, it's really upset me that Bank of America released my money, since it was solely from Federal sources, directly deposited into the bank. According to the FTC, these funds are protected from garnishment (except for alimony, child support or back taxes), and it's obvious from any account statement that these deposits are from the US Treasury. Is this an avenue that can be pursued for my reimbursement?

LADYLAWYER : BOA is not one of the few banks that have a policy not to release these types of funds. There is currently a federal bill that will require all banks to deny releasing any funds that are exempt, but until that is law, BOA is bound by the court's order to release to a creditor what the order says they have to--this is regardless of whether they know they money in the account should be exempt. Right now, the burden is on the account holder to show the judge that the funds are exempt, thereby blocking the plaintiff from getting an order telling the bank to release the funds.
LADYLAWYER : Your redress is with the creditor that took the funds. As soon as you can get in front of a judge to show him your funds were exempt, then the money will be ordered returned to you.
LADYLAWYER : you did say that you were disabled...
LADYLAWYER : if you have trouble getting to court, ask the JA if you are able to get a telephonic hearing. This way, you can call into the hearing and do not have to physically be there.
LADYLAWYER : Now, BOA WAS required to send you a notice within three business days of receiving the garnishment/levy order. The notice should have told you the procedure you needed follow to claim that additional funds in your account were exempt from garnishment because they are Social Security payments. Did they do that?
LADYLAWYER : Hi, still with me?
LADYLAWYER : It appears you may have stepped out of the chat. Just wanted to finish by saying that if BOA did not give you the proper notice about the levy/garnishment, then you definitely can pursue legal action against them as far as the damages you have suffered for not properly being notified of the levy. You would want to see a consumer protection attorney in your area about this.
LADYLAWYER : I strive for excellent service and I hope I provided that for you today; however, if you have any further questions, concerns, or need further clarification, please just reply to me here and I will get back to you just as soon as possible! There may be periods where I am helping other customers or may not be online but I will always get back to you within 24 hours. If you have no further questions at this time, would you kindly leave me a positive service rating before you go? Thank you so much! And thank you for your service!

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