Posted: Tue Dec 30, 2008 09:24 pm Post subject: overpayment garnishment of wages
client has old overpayment of over $15,000 from around 2001. Not in current pay. Meets with local office and has been paying $10 per month toward overpayment, as that is what he could afford at the time. He did return to work.
About 3 years ago, SS began attaching his income tax refund check. No new agreement, he continued to pay the $10 a month and figured giving up tax return was OK to get rid of overpayment.
About 6 weeks ago, SS garnishes his wages.
He states there has been no civil suit, can SS garnish wages without a judgment?
Does he have to now re-negotiate with the local office to avoid future garnishments? _________________ John Polofka
Polofka & Van Berkom
ToledoLawyer.com
500 Madison Ave., Suite 605
Toledo, OH 43604
Joined: 13 May 2004 Posts: 1315 Location: Cincinnati OH
Posted: Wed Dec 31, 2008 12:16 am Post subject:
Quote:
He states there has been no civil suit, can SS garnish wages without a judgment?
Absolutely, positively not (I assume he is not a federal employee). Something is very wrong in the story he is telling you, (being charitable, I suppose there could have been a default judgment issued that he doesn't know about). Ask him to show you the garnishment order his employer received. That will give you the details of the judgment.
The problem here is the existence of the repayment agreement.
If a non-entitled debtor has a valid and up to date repayment agreement, neither AWG or TRO should apply. When I say "up to date", I mean that the debtor actually makes regular and timely payments per the agreement and didn't miss two consecutive payments in a row. Most of the problems I see with this happening are with debtors who have multiple overpayments not covered under an installment agreement (in most cases, a subsequent additional overpayment being added after an installment agreement is entered negates a prior existing installment agreement), or for debtors who have an installment agreement but pay in an irregular manner (if they even bother to do so at all).
Your options are limited with AWG once SSA has issued the offset notice to the employer -- the agency will not end the garnishment even if the claimant enters into a subsequent repayment agreement. Furthermore, AWG notices are not initial determinations subject to appeal so there are no avenues for administrative appeal.
If the debtor did not meet all of the selection criteria (i.e. was erroneously selected), contact the local FO management and get them to help you sort it out. Both AWG and TRO are supposed to be preceeded by a required pre-offset warning letter, so the debtor should be able to provide you with the letters (or can get copies from SSA from its ORS correspondence archival system). If they went to the wrong address (which happens frequently - debtors often fail to report updated addresses to SSA) and the debtor denies receiving them, you might want to look at that section of the general administrative offset rules for your options in dealing with the local FO management.
Joined: 13 May 2004 Posts: 1315 Location: Cincinnati OH
Posted: Wed Dec 31, 2008 10:35 pm Post subject:
Well Ed, I'm absolutely positively wrong. I had no idea that SSA could garnish wages from a private employer without a judgment. Thanks for the correction. Have a good New Year.
Well Ed, I'm absolutely positively wrong. I had no idea that SSA could garnish wages from a private employer without a judgment. Thanks for the correction. Have a good New Year.
They aren't all that common, at least in my experience. I've seen tons of tax refund offsets over the years, but only just a few (maybe five or less) AWG cases since that law was passed. To be honest, I'm surprised that we don't see more of them. However, I suspect though that within the selection criteria the 10 year delinquency rule together with the difficulty in establishing the required 12 continuous months of employment (due to the 12-18 month lag in SSA wage records together with the difficulty some former claimants have in sustaining continuous employment) probably prevent AWG from being utilized more than it is.
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