TN 5 (02-09)
PR 04505.042 Pennsylvania
A. PR 09-008 Reply to Your Request for a Legal Opinion Regarding the Validity of an Amended Garnishment Order, Which Garnishes the Social Security Benefit of the Wage Earner, Joseph C. P~ (SSN ~), in Excess of the Federal and State Maximum Percentage Amou
DATE: October 21, 2008
Any agreement between parties to an alternate (higher) rate of garnishment is still governed by the limits of maximum percentage amounts set forth in the Consumer Credit Protection Act (CCPA). As established under 15 U.S.C. 1673, no state may make, execute, or enforce any order or process in violation of this section .
On September 5, 2008, you requested our opinion regarding the validity of a Bucks County Pennsylvania amended garnishment Order dated August 26, 2008 which, by agreement between the parties, garnishes the social security benefit of Joseph C. P~, SSN ~, in excess of the maximum percentages established by federal and Pennsylvania law.
The maximum percentages for purposes of garnishment are established by federal and state law. Because there are no exceptions to the maximum percentages, even in the case of an agreement between the parties, the amended garnishment Order is not valid.
Joseph P~ receives monthly social security benefits in the amount of $1981.00. Because of spousal support obligations, the Agency is currently withholding $1188.60 per month, or 60% of Mr. P~'s social security benefit, in accordance with the maximum percentage amount permitted under the Consumer Credit Protection Act (CCPA), 15 U.S.C. 1673(b).
On August 28, 2008, Aicha P~ and Joseph C. P~ amended the garnishment order in place and agreed that "the income attachment in place with the Social Security Administration can exceed 55% of [Joseph P~]'s disposable net income and submit to PA SCDU the full amount of the order in the amount of $1930.00 per month, allocated $1880.00 [toward] support and $50.00 toward arrears." This agreement was memorialized in a Bucks County Court of Common Pleas, Domestic Relations Section, Order and signed by a Bucks County Court of Common Pleas judge. The withholding amount proposed in the amended garnishment Order is equivalent to 97.43% of Mr. P~'s total monthly social security benefit.
The amended garnishment Order was faxed to the Fairless Hills, Pennsylvania field office.
Section 207 of the Social Security Act (Act) generally prohibits the assignment of social security benefits, including garnishment. 42 U.S.C. § 407(a). However, the Social Security Administration has consented to income withholding, garnishment, and similar proceedings for the enforcement of child support and alimony obligations when appropriately served with "legal process" to that effect. 42 U.S.C. § 659(i)(5)(A), (B). The Act defines legal process as "any writ, order, summons, or other similar process in the nature of garnishment, which is issued by a court or administrative agency of competent jurisdiction in any State, territory, or possession of the United States, and which is directed to, and the purpose of which is to compel, a government entity which holds moneys which are otherwise payable to an individual to make a payment from the moneys to another party in order to satisfy a legal obligation of the individual to provide child support or make alimony payments." Id. The term "competent jurisdiction," as used in the above section of the Act, is a reference to the basic requirement that the court that issued the legal process in question actually had subject matter jurisdiction to issue that particular type of writ, order, or summons. See United States v. Morton, 467 U.S. 822, 835-36 (1984). In this case, the Bucks County Court of Common Pleas, Domestic Relations Section has subject matter jurisdiction over all matters affecting Mr. P~'s divorce, including matters involving spousal support.
However, although the Court has jurisdiction over issues involving spousal support, any Order for income attachment must comply with federal and state law. The income withholding for the enforcement of child support or alimony obligations is subject to the percentage limitations of the Consumer Credit Protection Act (CCPA), codified at 15 U.S.C. § 1673. The CCPA limits the amount of garnishment to the lesser of the State maximum, or
50%, 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;
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). See also POMS GN 02410.215 ("How Garnishment Withholding Is Calculated). The Pennsylvania maximum percentages mirror those set forth in the CCPA. The statutory section dealing with attachment of income for support matters provides that "the maximum amount of any attachment under this section shall not exceed the limits set forth in the [CCPA]." 23 Pa.C.S. § 4348(g). There are no exceptions under the Pennsylvania statute to the maximum percentage amounts set forth in the CCPA.
In this case, the CCPA and the Pennsylvania statute would preclude the Agency from withholding over 97% of Mr. P~'s benefits. Even if Mr. P~ is in arrears of 12 weeks or more, the maximum percentage amount permitted to be garnished from his social security benefit is no more than 65%. As there are no statutory or common law exceptions to the maximum percentage amounts, an agreement between the parties authorizing garnishment above the established maximum percentages does not change this result. This is especially true in this case where we believe that Mr. P~ is not represented by an attorney and may not have been aware of the consequences of his agreement. Therefore, the Agency is prohibited by state and federal law from honoring the Bucks County Court of Common Pleas Order garnishing Mr. P~'s social security benefits in excess of the statutory maximum amounts.
You also indicated that the garnishment Order was faxed to the field office and requested our opinion regarding whether the faxed garnishment Order constitutes proper service. The Pennsylvania attachment of income statute provides that "[t]he employer of an obligor shall be given notice of the attachment as provided in the Rules of Civil Procedure governing support." 23 Pa.C.S. § 4348(i). The Pennsylvania Rules of Civil Procedure governing support provide only that "the order for income withholding shall be served upon the obligor's employer."
Pa. R. C. P. 1910.21(d)(1). Rule 1910.21 does not specify any particular manner of service required. However, the rule regarding service of non-original process permits service by facsimile. Pa. R. C. P. 440(d). Therefore, as the Pennsylvania Rules of Civil Procedure do not prohibit service by facsimile, this method of service is most likely valid.
Eric P. K~
Acting Regional Chief Counsel
Assistant Regional Counsel