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Social security is protected from creditor

Richard M.  Alderman Interim Dean of the Law Center

Richard M. Alderman
Interim Dean of the Law Center

Q. I owe a lot of money. I own very little, and have no savings. I live on my social security payment. A credit card company is now suing me. Can it take any money from my social security payments when they are deposited into my bank account? I know wages are exempt and cannot be taken. What about social security?
A. As you say, in Texas wages are generally exempt from the claims of creditors. This means that even if a creditor sues you, it may not garnish your wages to pay the debt. The major exceptions to this rule are debts for child support, student loans and certain taxes. Social security benefits also may not be garnished but this is based on federal law, not Texas law. The United States Code provides that social security payments directly deposited into your bank account are not subject to garnishment or attachment by a credit card company, even if it sues and gets a judgment against you.
Q. I was going to sue a contractor in small claims court for doing faulty work. Before I had a chance to do anything, he filed suit against me for not paying the full amount. Do I still have the right to file my claim?
A. You may still file your claim, but you do not file it as a separate lawsuit. You file what is called a “counterclaim” in the contractor’s lawsuit. The court then hears both claims and rules on them at the same time.
Q. I just got a call from a debt collector saying that if I did not promptly pay, he would take my tax refund before. My wife and I have been counting on this money to pay some other expenses. We have been paying the debt collector all we can afford. Can the debt collector do this?
A. The debt collector cannot garnish your federal tax refund. Tax refunds may be taken by creditors in only very limited circumstances. For example, a refund may be taken for a debt owed to the federal government, a debt owed to a state, or a debt for past-due child support.
Threatening to take your tax refund also probably violates state and federal debt collection laws. Under these laws, a debt collector is prohibited from making threats to take legal action he has no right to take. I suggest you let the debt collector know that you know your legal rights and continue to pay what you can afford. You also may want to speak with a consumer law attorney.
Q. My father is 82 and would like to give me his truck. My sister says if he gives me his truck, she must be given equal value in cash. My father’s will states that all his property will be divided equally between his two children. My question is, what is my sister entitled to?
A. Right now, your sister is not entitled to anything. A will is effective only upon death, and deals only with property in the estate at the time of death. Prior to his death, your father may distribute his property in whatever manner he wants. He has no legal obligation to distribute his property in accordance with the terms of his will. If he wants to favor one child over another, he has a legal right to do so. This is true even though it means there will be less property to distribute after his death. And by the way, if he gives you the truck, you will still be entitled to your full share of his other property when the estate is distributed.
Q. I have been laid-off. I found another job, but it is almost 35 miles from where I now live. Can I get out of my lease based on the change in employment?
A. Unfortunately, unless your lease has a provision allowing you to terminate early if you lose your job, the answer is no. A lease is nothing more than a contract, and the terms of the agreement determine both parties’ rights. Although it may seem unfair to hold someone to a lease when they lose their job, become ill, marry, or have another good reason for leaving, the law does not recognize any of these events as an excuse to break a lease. In fact, it may be unfair to the landlord, who has committed his property for a period of time, to allow a tenant to break a lease for such an event.
The bottom line is that if you leave early, you may owe rent for the period of time it remains unoccupied. I suggest you try to work something out with the landlord. He may be willing to accept one or two month’s rent to release you.

Do you want to know more about your legal rights? Check out my website, www.peopleslawyer.net

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