Question

Do I need an attorney?

BACKGROUND

I received a written notice from SSA dated Sept. 21, 2008 that I had an outstanding arrest warrant for a felony crime issued December 14, 1999 in Clark County Nevada. The September 21 notice from SSA was the first knowledge I had that any such thing existed. The only time I was even in Nevada in 1999 was early Feb when I attended a trade show in Las Vegas.

I had never resided in the state of Nevada.

I had never been served notice of any such offense.

I had never been in a courtroom in Nevada.

I contacted both the SSA and the Clark County DA by telephone to get the details of the situation. I discovered what the warrant related to and determined that the Las Vegas Hilton Hotel had indeed never processed a $3000 marker from Feb 1999 and had filed a claim with the District Attorney's office. I phoned The SSA office to see what I needed to do to clear this up and was told I would have to get a 'Court Dismissal' of the warrant from the DA's office. I got the details from the Clark County DA and sent them a check right away, and they sent me the needed court dismissal dated Oct. 13, 2008 and a receipt for the $3,565.00. I delivered that information (in person) to the San Ramon SSA office on October 16 and left believing I had provided all that was required. My October benefit payment was deposited to my account by the SSA.

I received another letter from SSA dated Oct 31, 2008 in which they asked for a check for an overpayment of benefits from January 2005 through October 2008 totaling $30,863.20. That letter and accompanying form stated that I had 30 days from the date of notice to file an appeal before they would start to withhold any part of my benefits.

I delivered an Appeal for reconsideration to the San Ramon SSA office on form SSA-561-U2 on November 20, 2008 (a copy of my appeal letter is below).

I received another letter from SSA dated December 2, 2008 stating my benefits had been restored as of November 2008 but they were withholding all of my monthly benefits beginning December 2008 to recover an overpayment. I will receive $149.20 around April 25, 2012 and after that, I will receive $661.00 on or about the fourth Wednesday of each month.

After receiving no November payment, I made another visit to the San Ramon SSA office on Dec. 23 to enquire about the payment because the material sent on October 31 clearly stated that if I filed an appeal within 30 days of that letter, "they would not start to withhold any part of my benefits". I was told I was correct and they would process a new request as they could not locate my appeal or it's status. Fortunately I had a time stamped copy of the appeal and payment should be restored soon.

At the time I filed my appeal, I was unaware of any of the following information regarding the SSA law change that became effective January of 2005. I had telephoned the San Ramon office twice and visited 3 times and no one could explain or direct me to what law I had violated and why they were referring to a January 2005 date. I have since found the information on the internet.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 precluded eligibility for Supplemental Security Income (SSI) payments for 'certain fugitive felons' effective August 1996. An individual receiving SSI and Title II concurrently continued to receive the Title II benefits even though the SSI payments were suspended.

The Social Security Protection Act of 2004 then extended the fugitive felon nonpayment provision to Title II beneficiaries beginning January 1, 2005. The Act made persons ineligible to receive Title II benefits during any month in which they were "fleeing (for a period of more than 30 days) to avoid prosecution, custody, or confinement for felonies or violating a condition of probation or parole under Federal or State law".

SSA interprets the law to mean "that a person is fleeing to avoid prosecution, custody, or confinement when a person has an outstanding warrant for his or her arrest, even if that person is unaware of that warrant."

In December 2005, the United States Second Circuit Court of Appeals, ruling in the case of Fowlkes v. Adamec, rejected SSA's interpretation of the law and the Agency's implementing regulations. The Court held the term "fleeing" to mean "the conscious evasion of arrest or prosecution," and that SSA could not conclude from the mere fact that an outstanding felony arrest warrant exists that an individual is "fleeing." As a result of the Fowlkes decision, SSA issued an acquiescence ruling and the Agency no longer suspended Title II payments to fugitive felons residing in the Second Circuit, which includes Connecticut, New York, or Vermont.

SSA assists law enforcement agencies in their efforts to locate and apprehend fugitive felons by sharing beneficiary address information with them. Fugitive felons who are not due Title II benefits under this law are wanted for crimes such as larceny, fraud and drug-related offenses.

Because of the Fowlkes Ruling, SSA estimated (March 2008) that it had been unable to collect about $18.5 million in Title II benefits (despite outstanding felony warrants) from approx 1,143 fugitive felon beneficiaries in the Second Circuit. http://www.ssa.gov/oig/ADOBEPDF/audittxt/A-01-07-17039.htm

Before SSA takes action to suspend benefit payments, it sends the beneficiary a notice about the warrant information the Agency has received and the impact it may have on benefit payments. The notice also advises the beneficiary of his or her rights to file an appeal or request a waiver. Finally, the letter informs the beneficiary of the conditions that must be met for the Agency to find that there is "good cause" to continue the benefit payments.

I have never 'fled' the state of Nevada to avoid arrest or prosecution.

My letter of appeal filed Nov 20:

Social Security
4201 E. Ramon Road
Palm Springs, Ca 92264
November 20, 2008

Re: XXX-XX-XXXXA

In the Fall of 1998, I decided to move to Palm Springs from San Mateo Ca (Bay Area). I made a trip to P.S. in early November of 98 to look at real estate. I signed a purchase agreement on a condo in Cathedral Canyon CC in Palm Springs. The condo had an existing seasonal rental contract on it thru March of 1999 that had to be honored. As I was going to be away during that period and would not be available to manage the rental, we agreed to close escrow on April 15, 1999. In order to receive mail prior to April, I opened a mail box at a private Mail store in the Smoke Tree Shopping Center in Palm Springs - 1775 E. Palm Canyon Dr.

A new bank had just opened in that same center (Canyon National Bank) and I stopped in to get information. I liked the people and they had a popcorn machine in the lobby with free popcorn for customers, so I decided I would prefer to deal with a local bank once I moved and I opened an account with the intent to change over from banking with the Bank of America.

I returned to San Mateo in December and changed most of my mail addresses to the Palm Springs postal box and closed my business affairs in preparation for the move. I had lived with a girlfriend in San Mateo for the previous 5 years, and shared her home phone. That number remained in use and she agreed to relay calls for me for a while.

In early Feb of 99 my former girlfriend and I met in Las Vegas for the Women's Wear Daily show at the Las Vegas Convention Center. She had a Women's apparel and accessory store in the San Francisco Gift Center and did her buying at trade shows. I had traveled to Las Vegas many times previously while attending trade shows. I had an established line of credit at the Hilton Hotel for 15 years and used it many times when I was in town for trade shows. I almost always stayed there because of it's proximity to the Convention Center. My credit line for casino play was $5000 +. They would automatically process (after I checked out) any outstanding markers (same as a check) directly from my accounts.

On that trip I evidently left Vegas with a $3000 marker out at the Hilton (signed on Feb 13, 1999) to be processed as usual. During that period (late Jan or early Feb of 99) funds in my old B of A checking account had apparently been transferred to my new account at Canyon National Bank in Palm Springs. I no longer have the records of the exact transfer dates.

It appears there were two accounts on file at the Hilton, my B of A checking account and credit card and an E-trade brokerage account with checking and Visa card. The E-Trade account had over $100,000 in it as of Jan 31, 99 and my combined checking balances should have been well over $110,000 at the time.
(Exhibit A)

I used a private mail drop in Henderson Nevada that I opened in 1995 or 96 for the E-Trade account (not sure of exact dates but Equifax shows it was first reported 12/1996) - (exhibit D). I did not use it for anything other than the E-Trade account and did not have statements or trade confirmations sent there as they were delivered electronically. I opened it for capital gains tax reasons and never picked up mail or had anything forwarded from there. I never resided anywhere in Nevada. I eventually closed it by telephone. The E-trade account remained open until 2000 when it was changed to a joint account and is still open today.

It appears that the Hilton tried to process my marker through the B of A account which had been closed. Apparently they did not try to or were unable to process the marker through the E-Trade account? I was a long time customer and it appears they may have done nothing further for quite some time assuming I would discover it and straighten it out? My NorCal phone numbers and addresses had been discontinued and I was in Nebraska, Arkansas and Pennsylvania visiting family from Feb to June of 99. I received no phone messages or forwarded mail from the Hilton. My San Mateo forwarding expired in March of 09.

The Hilton later decided to file a bad check claim with the Clark County District Attorney's office. A warrant was issued Dec 14, 1999 (ten months after the marker was signed). According to the DA's records, I was supposedly 'served' at the Henderson NV address (a private mail drop in a Mail Etc. store in the middle of the Green Valley Plaza Shops in Henderson. Feb was the only time I was in Las Vegas in 1999, so I couldn't have been served at that address anytime in 1999 as they claim.
(Exhibit B)

Your Sept 21 letter was the first knowledge I had that such a thing existed. I phoned the Clark County District Attorney's office to discover what the warrant was all about and determined that the Hilton had indeed never processed a $3000 marker from Feb 1999. I phoned your SS office to see what I needed to do to clear this up and was told I would have to get a 'Dismissal' of the warrant from the DA's office. I got the details from the Clark County DA Office and sent them a check right away, and they sent me the needed dismissal dated Oct. 13, 2008 and a receipt for the $3,565.00. I delivered that information in person to the San Ramon SS office and believed that I had provided all that was needed. The October SS payment was deposited to my account.
(Exhibit C)

I received another letter from SS dated October 30 stating I had been overpaid $30,863 in violation of a law? which I had no knowledge applied to me since I had no knowledge of the outstanding warrant before your Sept 21 letter. I don't feel it was my fault that I did not alert SS to something I did not know existed. However, I admitt it was my fault that I did not pay proper attention to my financial affairs during 1999 and the Hilton went unpaid for all this time. I apologized to them.

I have resided at the same location in Cathedral Canyon CC, Palm Springs since 1999 and any rookie credit person should have been able to locate me with minimal effort. I don't understand why this was ever turned over to a bad check division of the District Attorney's Office instead of a collection agency or ?

This warrant has never showed anywhere on any credit report or other public records report that I can find. (Exhibit D)

Regards,
XXX XXXXXXX