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Know your rights: Creditors cannot take your Social Security check

By By Richard Alderman
March 2, 2013 at midnight
Updated March 1, 2013 at 9:02 p.m.


I just received a letter from a debt collector telling me that if I didn't make arrangements to pay, he would take all the money in my bank account. The only money in that account is my Social Security check, which is all I have to live on. What can I do to protect myself?

It is not necessary for you to do anything to protect yourself; Congress already has protected you. First, no creditor can take any money from your bank account without first suing you and getting a judgment against you. More importantly, under federal law, your Social Security check is protected from your creditors even if they sue and win.

A creditor cannot take Social Security funds when they are in the bank. I suggest you let the debt collector know that you know your legal rights and you expect he will stop making unlawful threats. Be sure to inform him that the only money in that account comes from your Social Security check. If the debt collector continues to threaten to take the money in your bank account, he probably is violating both federal and state debt collection laws. My guess is he will stop threatening once he knows you know your rights.

I owe a student loan from more than 10 years ago. I was just contacted by a collector who says if I don't make payment arrangements, he will garnish my wages. How long does he have to collect? I thought there was no wage garnishment in Texas.

In most cases, a creditor has only four years to sue to collect a debt. After that time, they could ask you to pay but couldn't take any legal action to force you to pay. Unfortunately for you, however, there are basically no time limits within which government-backed student loans must be collected.

Even though the debt is 10 years old, it may still be collected. Additionally, although wage garnishment is generally prohibited in Texas, wage garnishment for student loans is based on federal law, which preempts Texas law. In other words, if you don't pay, your wages will be garnished. Under the law, however, you must be given an opportunity to make arrangements to pay before wage garnishment is used. I suggest you take advantage of this opportunity.

I filed bankruptcy. I have now received a 1099 form from one of my creditors. Am I responsible for taxes on the money that was discharged?

When a debt is canceled or written off, this constitutes "income" to you. That is why you received the form 1099. Creditors are required to send a 1099-C under certain circumstances, but it does not mean you have to pay a tax on the discharged amount. Not all canceled debt must be included as income. The IRS code provides that if the debt is discharged in bankruptcy or you are insolvent at the time the debt is written off or discharged, you do not have to pay taxes. I suggest you visit the IRS website, irs.gov, and look for information about "cancellation of debt." You also might want to speak with a CPA or tax preparer to make sure you properly file your taxes.

My brother has lived with our mother for about a year. He pays her a small amount each month to help with expenses. Things are not working out, and my mother wants him out. Can she just throw him out?

In my opinion, your brother is a tenant, and your mother is his landlord. This means that she must give him proper notice to vacate and has no legal right to just "throw him out." I suggest she give him 30 days written notice to leave. If he still does not leave, she can file a forcible entry and detainer action in justice court to have him evicted. To see more about her rights as a landlord and your brother's rights as a tenant, look at the landlord-tenant section on my website.

I share a backyard fence with my neighbor. The so-called "good" side of the fence faces my neighbor's property. My neighbor installed the fence 20 years ago. The fence is beginning to lean. My neighbor claims the weed eater used by my lawn service company is cutting the fence posts, causing the fence to lean. Who is responsible for repairing or replacing the fence?

If in fact your lawn service company has caused the fence to lean, you would be responsible for the costs of repair. In my opinion, however, it is unlikely that the weed eater has caused this problem. It may be that the fence is just old and needs to be replaced. If that is the case, you probably have no legal responsibility to pay any of the costs. Without any home owners or civic association rules, the owner of the fence is responsible to maintain it, and if it needs to be replaced he can replace it or just tear it down.

There is no legal obligation of the neighbor to contribute to the cost of repairing or replacing the fence. In most cases, however, neighbors voluntarily agree to share the costs. In my opinion, the neighborly thing to do is share some of the expenses of repairing or replacing the fence. If you cannot afford to do this or simply to no want to, I do not believe your neighbor can force you help out with the costs.

A short time ago I purchased a box of crunchy snacks. While I was eating the snack I pulled something out of the box that did not feel right. It was not popcorn, peanut, pretzel or a cracker; it was a caramel covered bone - no joke, not a hoax. I tried to contact the manufacturer but I have not received a response. What can I do? How much money should I be entitled to? Do I need a lawyer?

In my opinion, your best remedy is to continue to try to contact the manufacturer and return to the store where you purchased the product. The store that sells a product is also responsible when it contains a defect such as this. I don't see any reason you should contact a lawyer. In my opinion, your damages are just the return of the purchase price or a new box of snacks. Fortunately, you were not injured and discovered the bone before you bit into it. As far as the law is concerned, the only loss you incurred was the price you paid for a defective box of snacks. This is not a situation that should involve a lawsuit.

Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a Web page at peopleslawyer.net.

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