TN 22 (10-14)

PR 04505.035 New York

A. PR 15-010 Phyllis, New York Income Execution Order on Benefits of Richard

DATE: October 8, 2014

1. SYLLABUS

The order for garnishment is not valid on its face. Specifically, the court order seeks to exceed the Consumer credit Protection Act (CCPA) and New York State allowable limits for garnishment. The garnishment order does not indicate that there are other resources to justify garnishment at a higher percentage of excess income.

2. OPINION

Question Presented

Whether an income execution order for payment of spousal support received by the Social Security Administration (SSA) against Richard, the number holder (NH), is enforceable as an income execution order under New York law.

OPINION

The income execution order for payment of spousal support to Phyllis, the NH’s former spouse is not enforceable. It does not meet the specific requirements of a valid income execution order pursuant to federal and New York State law. Specifically, the amount of the deduction in the execution order appears to exceed the allowable limits set out in the Consumer Credit Protection Act and New York law.

Background

On July 31, 1992, the Supreme Court of the State of New York for the County of Nassau granted the NH a judgment of absolute divorce against the Phyllis. According to the income execution order SSA received, the Court also issued an order of support against the NH, requiring that he pay Phyllis $4,300.00 monthly. The execution order further notes that the NH subsequently defaulted on his spousal support payments, with arrears totaling $102,041.00, plus interest. On or about March 18, 2014, Phyllis’s attorney, Allan, Esq., served the income execution order for support enforcement on the agency, directing SSA to withhold $1,000 biweekly, and an additional $100 monthly to be put towards arrears, from the NH’s benefits until full payment is received. The record indicates that currently, the NH receives $2,569 in monthly retirement benefits under Title II of the Social Security Act (Act).

ANALYSIS

Generally, Social Security benefits are not subject to garnishment. 42 U.S.C. § 407(a). However, the Act provides exceptions to this general rule, including allowing garnishment of Social Security benefits to enforce the recipient’s legal obligation to provide child or spousal support. 42 U.S.C. § 659(a), (h)(1)(A)(ii)(I). Thus, periodic and lump sum Title II benefits may be garnished following the receipt of legal process to enforce an individual’s legal obligation to provide such support. See 42 U.S.C. § 659; 20 C.F.R. § 404.1820(b); Program Operations Manual System (POMS) GN 02410.200. The Act defines the term “legal process” as any writ, order, summons, or other similar process in the nature of garnishment issued by a court of competent jurisdiction or an authorized official pursuant to an order of such a court of competent jurisdiction or pursuant to State or local law. 42 U.S.C. § 659(i)(5). It may include, but is not limited to, an attachment, writ of execution, income execution order, or wage assignment that is issued by a court of competent jurisdiction in any State; a court of competent jurisdiction in any foreign country with which the U.S. has entered into an agreement which requires the U.S. to honor the process; an authorized officer pursuant to an order of a court of competent jurisdiction or State or local law; and a State agency authorized to issue income withholding notices pursuant to State or local law, or pursuant to 42 U.S.C. § 666(b). POMS GN 02410.200B. In addition, the legal process must be directed to a governmental entity. POMS GN 02410.200B. In sum, legal process relating to an obligation to provide child or spousal support under state or local law must be enforceable under state law and pursuant to a valid order authorizing income withholding. See POMS GN 02410.200B, C.

New York State law provides that when an individual who has been directed to make payments for alimony, maintenance, support or child support by an order of support is in default, an execution for support enforcement may be issued by a support collection unit, the sheriff, the clerk of the court, or the attorney for the creditor as an officer of the court. N.Y. C.P.L.R. § 5241(a)(1), (a)(2), (b)(1). New York law also requires that the execution for support enforcement contain necessary information and directions to ensure its characterization as an income withholding notice as described and required by 42 U.S.C. §  666(b). See, generally, N.Y. C.P.L.R. § 5241(c)(1)(i)-(x).

Garnishments for child support and alimony purposes are subject to the federal maximum amounts set out in the Federal Consumer Credit Protection Act (CCPA). 15 U.S.C. § 1673(b)(2). The precise amount to be garnished is the lesser of the State maximum or the maximum under the CCPA (Federal limit). POMS GN 02410.215.A.3. In New York, the maximum withholding is the federal limitation. Compare 15 U.S.C. § 1673(b)(2) to N.Y.C.P.L.R. § 5241(g)(1). The CCPA limits garnishment to 50% of disposable earnings, if the beneficiary is supporting a spouse and/or child other than the spouse and/or child whose support has been ordered; 60%, if the beneficiary is not supporting another spouse and/or child; and 55% or 65% respectively, if the garnishment order or other evidence submitted indicates the original support ordered is 12 or more weeks in arrears. 15 U.S.C. § 1673(b)(2); N.Y.C.P.L.R. § 5241(g)(1). 1 The CCPA states that “[n]o court of the United States or any State, and no State (or officer or agency thereof), may make, execute or enforce any order or process in violation of this section.” 15 U.S.C.A. § 1673(c). Additionally, POMS GN 02410.215.A.6 provides that SSA may only override the Federal limit if a court order instructs SSA to do so because the beneficiary has other resources.

On or about March 18, 2014, an income execution order was issued to SSA requesting garnishment of the NH’s benefits for basic spousal support and payments to Phyllis by her attorney, Allan. Pursuant to New York State law, income execution orders qualify as valid legal process for purposes of garnishment to enforce an individual’s legal obligation to provide child or spousal support, even when signed by an attorney. The particular order in this case, however, may be faulty. As an initial matter, it directs deduction from the NH’s account and payment to Phyllis remitted within ten days, whereas the law requires payment be remitted within seven business days. N.Y. C.P.L.R. § 5241(c)(1)(v).

More importantly, it appears the execution may exceed the limits on the maximum amount SSA may garnish. The income execution order calls for SSA to withhold $1,000 biweekly plus an additional $100 monthly from the NH’s benefits. The NH’s current total monthly benefits are $2,569. Even assuming that Phyllis is subject to the limit of 65% of disposable earnings, on its face, the amount ordered to be withheld by the income execution order exceeds this limit. 15 U.S.C. § 1673(b)(2); N.Y. C.P.L.R. § 5241(g)(1); POMS GN 02410.215A.3. Further, the State court order does not indicate that Richard has other resources so that SSA could garnish a greater percentage of his benefits. Therefore, SSA should not garnish Richard’s benefits pursuant to this order.

Conclusion

The income execution order is not valid under New York State law and is not enforceable. Specifically, the amount of the deduction in the execution order appears to exceed the limits set under by federal and New York law.


Footnotes:

[1]

These limits are provided in the income execution order under “Notice to Employer or Income Payor,” in accordance with N.Y. C.P.L.R. § 5241(c)(1)(viii).


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http://policy.ssa.gov/poms.nsf/lnx/1504505035
PR 04505.035 - New York - 10/10/2014
Batch run: 10/10/2014
Rev:10/10/2014