Debt Collector planning to sue/need help in texas, deal to law ?

Edwards Finance > Debt Recovery

Q. I have a problem with a debt collector and need help. I handle my elderly Father's affairs, and am his legal guardian. I live in NY and my Father is in a nursing home in TX, and is physically and mentally incapacitated. When I took over looking after his affairs, I discovered my younger Brother had stolen one of my Father's credit cards and ran up a $10,000 balance. He made several payments on it but stopped recently. My Brother's name is and was not ever on the account, nor was he ever authorized to use the card. My Father was unaware that he even lost the card. The bank, Chase Manhattan refused to treat it as a fraud case because a family member stole the card. Now, a collection agency plans to sue my Father. What can they do to him? He has no cash assets, and his only income is from his Social Security benefits, all of which goes to pay for his nursing home costs. He is also on Medicaid, which pays for part of his nursing home costs. I realize I could sue my Brother, but I am worried about the immediate consequences of a lawsuit from the debt collector to my Father.

A. -I think you asked about this about a year ago. Back then I think there was some federal code that was posted that clarifies that you are in no way personally responsible for the debt. I think at that time, you were concerned that the credit card company might sue you. But I guess they figured out that suing you would be a frivolous lawsuit, and they are only suing your father. Let them sue your father. Who cares? There's nothing for them to get from him if he has no assets, except for a judgment against your father. If your father has life insurance, I guess the judgment could be used against his estate. But, if there is no estate, they are out of luck. If I remember right, I think you said your father is in Texas, so maybe you could check with a Texas attorney. A far as suing your brother, I would say to simply forget about that idea -- it's a lost cause. And, even if your father (through you) won that lawsuit, the money would just go to the fool credit card company. -Ask your Texas lawyer to explain to you whether the following is basically correct and, if you still have any questions, "how it would work" there to prevent what you say worries you the most: The federal Social Security Act, 42 U. S. C. at § 407(a), directs: "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 . . . ." -- a statutory right of social security recipients the U.S. supreme court has ruled must be liberally construed and applied. Philpott v. Essex County, etc., 409 U.S. 413, 93 S. Ct. 590 (1973). Texas state court money judgment enforcement procedure as against a bank account owned by a judgment-debtor or in which a judgment-debtor is claimed to have an interest requires a court granted order of garnishment, including to interested parties as a pre-condition to the grant of such relief, and also provides for the vacatur of garnishments nonetheless obtained in violation of law; and, as the case may be, the Texas courts recognize and abide by this federal law directive (incorporated by reference as a matter of its own state law) and so will not grant such relief in the first instance or will set aside attempts indirectly to obtain such relief, on proof that funds in a judgment-debtor's bank account derive entirely from federal social security payments. (The litigated cases in Texas concerning these federal and related state law requirements thus revolve not about disputes whether such funds are exempt and, instead, whether funds in a bank account alleged to be derived from social security payments to an individual provably are that -- an issue not difficult to establish when as you say is so for your father, the bank's records will confirm that all the deposits into your father's account were made by/from social security checks.) Though you have said that a lawsuit has been "threatened" you also said that that "threat" has been pending for a comparatively lengthy time but without any follow-up action, that you and your Texas lawyer have written to the bank in question to the effect that not only was the debt in question not incurred directly or even indirectly by your father but that, for the reasons summarized above, your father is anyway completely judgment (collection) proof. If these basically summarized the realistically provable facts, that/why you nevertheless seem to be "worried" that your father will be sued thus is puzzling.

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