The following act is an "anti-attachment" statute in regard
to a levy on Social Security
payments.
TITLE 42 - The Public
Health and Welfare
CHAPTER 7 - Social Security
SUBCHAPTER II - Federal Old-Age, Survivors, and Disability Insurance
Benefits
Sec. 407. Assignment of benefits
(a) In general
The right of any person to any future payment under this subchapter
shall not be transferable or assignable, at law or in equity, and none
of the moneys paid or payable or rights existing under this subchapter
shall be subject to execution, levy, attachment,
garnishment, or other
legal process, or to the operation of any bankruptcy or
insolvency law.
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This section is cited in the
following lower court case. This section was part of a
controversy in which questions were raised regarding what exactly is a levy, and what actions
does section 407(a) actually address.
The lower court had to
address what a levy actually
is. The definition given by this court is useful,
because the passage from the court decision cites Black's (legal/law)
Dictionary in regard to what a "levy"
is and this case cites the Supreme Court on the issue as well.
Please observe how
the following definitions match the definitions you read on the last
page.
Subchapter II of the Act
does not define the term 'levy.'
Black's Dictionary
provides several definitions. It states that 'levy' means '4 {t}o
take or seize property in execution of a judgment.'
Black's Dictionary 927 (8th ed. 2004). But 'levy' also means
'{t}he imposition of a fine or tax.' Black's, supra, at 926.
Keffeler II provides guidance on this issue. The Court examined
two of DSHS's actions: (1) its efforts to become the
representative payee and (2) its use of Social Security benefits to
reimburse itself for the cost of foster care. Keffeler II, 537
U.S. at 382. It [the court]
held that neither action
constituted an 'execution, levy, attachment, {or} garnishment.'
Keffeler
II, 537 U.S. at 383. Noting
that '{t}hese legal terms of art refer to formal procedures by which one
person gains a degree of control over property otherwise subject to the
control of another, and generally involve some form of judicial
authorization,' the Court held that DSHS's actions 'do not even
arguably employ any of these traditional procedures.'
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&
vol=2005_app/253020maj&invol=3
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- A "LEVY" is
the "seizure of
property to satisfy a judgement".
- Execution, levy, attachment, or garnishment refer to "formal procedures by
which one person gains a degree of control over property otherwise
subject to the control of another", And,
- Execution, levy, attachment, or garnishment "generally involve some
form of judicial
authorization."
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Adding more oomph to the
meaning, is the Supreme Court decision cited by the lower court.
Washington State
Department of Social and Health Services et al. v. Guardianship Estate
of Keffeler et al.
537 U.S 371 (2001?)
Thus, "other legal process"
should be understood to be process much like the processes of execution, levy,
attachment, and garnishment, and at a minimum, would seem to require
utilization of some judicial or quasi-judicial mechanism, though
not necessarily an elaborate one, by
which control over property passes from one person to another in order
to discharge or secure discharge of an allegedly existing or
anticipated liability. This conclusion is confirmed by the
definition of "legal process" in the Social Security Administration's
Program Operations Manual System (POMS). On this restrictive
understanding, it is apparent that the Department's activities do not
involve "legal process." Whereas the object of the specifically named
processes is to discharge, or secure discharge of, some enforceable
obligation, the State has no enforceable claim against its foster
children. And while execution, levy,
attachment, and garnishment typically involve the exercise of some sort
of judicial or quasi-judicial authority to gain control over another's
property, the Department's reimbursement scheme operates on
funds already in the Department's possession and control, held on terms
that allow the reimbursement.
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Levy, Execution, Attachment,
and Garnishment; REQUIRE JUDICIAL AUTHORITY (quasi
or full) to gain control over another's property.
Washington State
Department of Social and Health Services et al. v. Guardianship Estate
of Keffeler et al.
537 U.S 371 (2001)
The questions, instead, are whether the department's effort to become a
representative payee, or its use of respondents' Social Security
benefits when it acts in that capacity, amounts to employing an "execution, levy, attachment,
garnishment, or other legal process" within the meaning of §407(a).6
For obvious reasons, respondents do not contend that the department's
activities involve any execution,
levy, attachment, or garnishment. These
legal terms of art refer to formal
procedures by which one person gains a degree of control over property
otherwise subject to the control of another, and generally involve some
form of judicial
authorization. See,
e.g., Black's Law Dictionary 123 (7th ed. 1999) (defining "provisional
attachment" as a "prejudgment attachment in which the debtor's property
is seized so that if the creditor ultimately prevails, the creditor
will be assured of recovering on the judgment ... . Ordinarily, a hearing must be held
before the attachment takes place"); id., at 689 (defining
"garnishment" as "[a] judicial
proceeding in which a creditor
(or potential creditor) asks the court to order a third party who is
indebted to or is bailee for the debtor to turn over to the creditor
any of the debtor's property").
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- Execution, Levy, Attachment, or Garnishment refer to formal
procedures and generally involve
some form of judicial
authorization.
- A hearing must
be held before attachment takes place.
- Garnishment is a judicial
proceeding.
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Thus, the case boils down
to whether the department's manner of gaining control of the federal
funds involves "other legal process,"
as the statute uses that term.
...
Thus, "other legal process" should be
understood to be process much like the processes of execution, levy,
attachment, and garnishment, and at a minimum, would seem to require
utilization of some judicial or quasi-judicial mechanism, though
not necessarily an elaborate one, by
which control over property passes from one person to another in order
to discharge or secure discharge of an allegedly existing or
anticipated liability.
...
And although execution, levy,
attachment, and garnishment typically involve the exercise of
some sort
of judicial or
quasi-judicial authority to gain control over another's
property, the department's reimbursement scheme operates on
funds already in the department's possession and control, held on terms
that allow the reimbursement.
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- "Other legal process" is a process much like the
processes of Execution, Levy,
Attachment, and Garnishment.
- "Other legal process" requires utilization of judicial or quasi-judicial process, the same as required for
execution, levy,
attachment, and garnishment.
- Execution, levy, attachment, and garnishment
typically involve the exercise of some sort of judicial or quasi-judicial
authority to gain control over another's property.
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Can there be any doubt that
a levy requires a judicial finding prior to such levy?
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