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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111526
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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We have 3 judgements from Capital One Bank. Personal credit

Customer Question

Hello Pearl...We have 3 judgements from Capital One Bank. Personal credit card debt from a few years ago. Times were tough and unable to pay them. We live in Ohio and they automatically debited an amount from my husband's bank account,and in the previous month the bank said they did a phone payment which he said is illegal. His business account is linked to his SS#
JA: What state is this in? And when did the issue begin?
Customer: Ohio, I will have to check when the judgement was....one minute
JA: Has anything been filed or reported?
Customer: I see 2 judgements 10/13 and 12/13 with the cards being opened 8/2006 and 10/2005
JA: Anything else you want the lawyer to know before I connect you?
Customer: I don't think so, I am looking at his credit report on the other screen
Submitted: 1 month ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
What is your specific question for us about this situation? You said it is a business account, but is his business a corporate entity (LLC, Corporation etc with its own tax ID number)?
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Customer: replied 1 month ago.
A sole proprietor, business account is linked to my husband's SS#. No EIN. My question and I have already searched alot. Can the creditor go into the account without notifying us and do a phone payment or preauthorized debit? The bank said no....That is what our bank statement is saying. I also need your advise regarding an EIN#. Should we open a new bank account with an EIN? or can we keep the same bank account, take his SS# ***** and add the EIN# ***** credit cards were personal in my husband's name.
Customer: replied 1 month ago.
their are judgements on these
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your reply.
Yes, the creditor can have a levy issued from the court and you do not get notice from the creditor. When a bank receives a notice of levy it is the BANK'S duty to notify the account holder that a levy was filed and then it is up to the account holder to file an objection to the levy. The bank has to allow a court order of levy, but without a court order of levy, the bank should not release any funds and if they did so then the bank is liable to you for doing so.
Even though this account may be used for business, because it is not a corporation or LLC and it is a sole proprietorship under his own SSN this means those funds are treated as his personal funds and they can seek to levy any account under his SSN. Sole proprietor accounts can be levied though for personal debts, see: http://www.kbamerican.com/how-to-bank-levy/
The only exemptions to garnishment would be proof the funds are from some exempted source, such as retirement funds or SS payments.
So at this point any account that has his SSN attached to it can be levied I am afraid pursuant to a writ of garnishment. Thus, you are going to need to get him removed from accounts until this matter can get resolved to avoid future levies.
Customer: replied 1 month ago.
I need to know about an EIN associated with his business account. If he gets an EIN and opens a new account, still being a sole proprietor can the creditor do any kind of levy, or debit anything from his account. We never received any type of levy. Just a pre-authorized debit from Capital one and a phone payment is what the bank statement said. Could this be someone else doing this?
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your reply.
No, as a sole proprietor his business receives no protection from personal debts and he gets no personal protection from business debts. He will need to form an LLC or Corporation (LLC is easier) and get a separate EIN in the name of the LLC or Corporation in order to avail himself and that bank account of corporate veil protection as they call it.
Even with a judgment they cannot take money from the accounts without either his approval or without a court order of levy. If they had neither, then you need to file a motion in court under the case number ***** have against him and seek return of the money and damages for them improperly taking the funds without court order.
Customer: replied 1 month ago.
you are trying to tell me that with this personal debt, even though he would open a bank account with an EIN, not his SS# ***** can still come after the business? How can they do that when no SS# ***** ***** to the business account
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your reply.
Yes, because a sole proprietorship to get an EIN would still require his SSN to be attached to it as the sole proprietorship is not considered a separate legal entity like an LLC or S corp or C corp.

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