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We provide legal assistance to low-income persons in Lane County, Oregon. |
To apply for our services, please visit our offices at 376 E 11th Avenue, Eugene, Oregon.
We accept new applications from 12:45-3:00 pm Monday thru Friday.
For more information, please call us at (541) 485-1017.
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New Oregon law protects Social Security, Veterans' Benefits and other benefits from garnishment
A new Oregon law which went into effect on January 1, 2010 protects exempt public benefits and retirement benefits from garnishment when the funds are deposited into a bank or credit union account by direct deposit or electronic payment. The new law is found in Chapter 430, Oregon Laws 2009.
The following benefits are protected:
Social Security and SSI
Public assistance payments
Unemployment Compensation
Payments from a public or private retirement plan
Veterans Benefits
Workers Compensation
Black Lung benefits
If the payments are readily identifiable, the bank or credit union must protect any money in the account up to the amount of protected benefits received by direct deposit or electronic transfer in the prior calendar month. Some of these payments, such as Social Security or Veterans Benefits, may already be identified on your bank or credit union statement, but others, such as retirement plan payments, may not be easily identified unless you notify the bank or credit union.
In order to make sure that the funds may be identified, the law requires banks and credit unions to provide an affidavit form that customers may use to notify the bank or credit union to protect the funds. An affidavit form and instructions prepared by Oregon legal services programs are available here:
AFFIDAVIT -- "Affidavit Notifying Financial Institution of Income Not Subject to Garnishment"
INSTRUCTIONS -- "How to Tell a Financial Institution that You have Deposits Protected from Garnishment
Benefit recipients should fill out the affidavit form following the instructions and take it to their bank or credit union. It is a good idea to do this even if the benefits are already identified on your bank statement just to make sure that the funds will be protected.
The new law also prohibits banks and credit unions from charging garnishment fees to the debtor if no funds are garnished from the debtor's account.
Prior to January 1, 2010, these protected benefits were already exempt from garnishment under federal and state law, but any bank account could be garnished even if it contained such exempt benefits. The debtor then had to file a Challenge to Garnishment and go to court to recover the benefits. The court process often took several months during which time the debtor did not have use of their benefits for food, shelter, utilities, medical needs and other expenses. Even if the debtor eventually recovered the funds, they could owe hundreds of dollars in bank garnishment fees, overdraft fees, and late charges, and could face eviction, utility shut-offs and other hardships due to the loss of their benefits.
Under the new law, if the account contains more than the amount of benefits received in the prior month, the excess amount will still be garnished, and the debtor will still have to file a challenge to garnishment to recover any amounts which are exempt. For example, if a person receives direct deposit of Social Security benefits in the amount of $1,000 per month, but has a total of $1,500 in Social Security in their account when the bank receives the writ of garnishment, the bank will protect $1,000 and pay $500 to the creditor. But since all Social Security benefits remain exempt when placed in a bank account, the debtor can file a Challenge to Garnishment to get back the $500 that was paid to the creditor. On the other hand, if the $500 excess amount did not come from Social Security or other exempt benefits, the creditor would be entitled to keep the garnished funds.
Following is additional information which may be downloaded:
Notice of exempt property and instructions for challenge to garnishment
Challenge to Garnishment form
Information for Debtors - How to protect your assets from creditors in Oregon
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Social Security will pay $500 million in back benefits
. Social Security must stop collecting overpayments based on most outstanding warrants. For 80,000 people, Social Security must pay back all benefits that they didn’t pay or that they collected as overpayments. The settlement applies to Social Security benefits, SSI benefits, and Special Veterans benefits.
Click here for more information about the Martinez settlement.
New laws protect tenants in foreclosure cases
The federal Protecting Tenants at Foreclosure Act of 2009 (Public Law 111-22) was signed into law on May 20, 2009 and went into effect immediately. The law has several provisions to protect tenants from immediate dispossession if the landlord loses the property in foreclosure:
- During the term of the lease, the tenant has a right to remain in the unit and cannot be evicted, except for actions that constitute good cause.
- If the lease ends in less than 90 days, the new owner may not evict the tenant without giving the tenant at a minimum 90 days notice.
- At the end of the term of the lease, the new owner may terminate the tenancy if the new owner provides a 90-day notice.
- The new owner may terminate the tenancy if the owner will occupy the unit as a primary residence, and has provided the tenant a notice to vacate at least 90 days before the effective date of such notice. This is the only exception to the rule that the tenant may not be evicted during the term of the lease.
In addition, the 2009 Oregon Legislature passed Senate Bill 952, Chapter 510, 2009 Laws, which became effective on August 23, 2009. This new law adds a number of protections for tenants and purchasers of foreclosed property, including:
- Tenants must be given notice if a foreclosure proceeding begins against their rental property, including information about their rights and where they can go for assistance.
- Tenants are protected from immediate eviction. Under SB 952, the tenant has 30 days from the date of sale and 60 days if the lease longer is than month to month.
- Once tenants receive a notice of the foreclosure, they may instruct their landlords to apply any security deposit or pre-paid rent toward their ongoing rent obligation.
- Purchasers of foreclosed property are released from liability for pre-existing issues or security deposits.
Home Affordable Modification Program
Homeowners may reduce their mortgage payments under the new federal Home Affordable Modification Program (HMP). Homebuyers who are behind on their mortgages may be offered the opportunity to actually modify the terms of their mortgage under the new program which was implemented on March 4, 2009. Homeowners who qualify for assistance may have their monthly mortgage payment lowered to 31% of their monthly gross income. The reduction in the monthly mortgage payments will be achieved by reducing the interest rate, extending the term of the loan, or deferring payment on a part of the principal.
Fannie Mae, Freddie Mac, and financial institutions receiving assistance under the federal Financial Stability Plan are required to implement the program. Participation is voluntary for other mortgage lenders. However, the federal government is offering substantial incentives to encourage other lenders to participate, and most major lenders have agreed to participate.
| Click here to visit the program website for more information and to determine if you are eligible for assistance. |
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Social Security agrees to change "fleeing felon" policy
A proposed settlement has been reached in Martinez v. Astrue, No. 08-CV-4735 CW (N.D. Cal.) over the so-called "fleeing felon" issue. The Social Security Administration will halt procedures which in recent years have caused the unjustified denial or suspension of benefits for tens of thousands of persons.
Under the terms of the settlement SSA has agreed to change its policy going forward beginning April 1, 2009. Under the new policy SSA will not initiate action to suspend or deny benefits under this provision unless an arrest warrant was issued under one of three National Crime Information Center (NCIC) codes pertaining to: (1) escape; (2) flight to avoid prosecution; or (3) flight ? escape. The experience of advocates is that these three categories constitute an extremely small percentage of all suspensions and denials under the previous policy.
In addition to changing the policy going forward, SSA will cease collecting any overpayments related to the challenged policy and will pay full retroactive benefits to eligible individuals who have been suspended or denied since January 1, 2007 and who continue to be otherwise eligible, as well as to all people who had a live administrative claim on this issue on August 11, 2008. SSA has also agreed to send a notice to anyone whose benefits have been suspended or denied since January 1, 2000 advising them that the policy has been changed and that they may now be eligible for benefits.
The Martinez case was filed in October 2008 to challenge the Social Security Administration's (SSA) interpretation of a statutory provision prohibiting payment of benefits to anyone who is "fleeing to avoid prosecution" for a felony. SSA applied this provision by suspending or denying Social Security, Supplemental Security Income (SSI) and Special Veterans Benefits (SVB) benefits to anyone who had an outstanding arrest warrant for a felony. They also refused to certify anyone as a representative payee in each of these programs if the person had an outstanding felony warrant. Plaintiffs contended, as did every court that has examined the issue so far, that the statutory language required a determination of the individual's intent before benefits could be suspended or denied. [The first case which successfully challenged the policy was Hull v. Barnhart, 336 F.Supp.2d 1113 (D.Or. 2004). The plaintiff in Hull was represented by Jim Kocher, staff attorney at Lane County Legal Aid and Advocacy Center.]
Intent is important: almost none of the claimants have had an intent to flee from prosecution. Although SSA acted as if its actions were directed against "fleeing felons," the reality is very different. Often the warrants are decades old, and based upon trivial offenses or administrative mistakes. In some cases, the denial or suspension is based on a mistake in identity resulting from a flaw in the way SSA matches warrant information with their database, with the claimant happening to have the same name and date of birth as a person with an arrest warrant.
Furthermore, the claimants generally have not "fled" - they may simply have moved to seek work or be closer to family or friends and often did not even know that criminal charges were pending. In some instances, the claimant was a minor when the move was made, and had moved along with his or her family.
The plaintiffs in the Martinez case are represented by National Senior Citizens Law Center, the private firm Munger, Tolles & Olson, the Urban Justice Center, Disability Rights California, and the Legal Aid Society of San Mateo County. This information is reported on the NSCLC website.
Medicare releases nursing home ratings
An analysis of nearly 16,000 nursing homes was released by the Centers for Medicare & Medicaid Services on December 18, 2008.
The new Medicare website "Nursing Home Compare" allows consumers to search for homes by name or location. Eight nursing homes in Eugene and Springfield are listed in the new ratings, each receiving from one to four stars. No homes in Eugene and Springfield received the highest five star rating.
The new Five-Star Quality Rating System rating system assigns homes one to five stars for quality, staffing and health inspections, plus an overall score. The new system was created to help consumers, their families, and caregivers compare nursing homes more easily and help identify areas about which you may want to ask questions. This rating system is based on continued efforts as a result of the Omnibus Reconciliation Act of 1987 (OBRA '87), a nursing home reform law, and more recent quality improvement campaigns such as the Advancing Excellence in America's Nursing Homes, a coalition of consumers, health care providers, and nursing home professionals.
Related stories:
USA Today: Medicare nursing homes ratings
USA Today: Nursing homes talk new ratings
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Revised 05.27.10
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LANE COUNTY LEGAL AID AND ADVOCACY CENTER and LEGAL AID SERVICES OF OREGON
are separate, independent non-profit organizations. SENIOR LAW SERVICE is part of Lane County Legal Aid and Advocacy Center. Our organizations provide legal help to low-income persons in Lane County.
Legal Aid Services of Oregon is funded by the Legal Services Corporation. Use of these funds is restricted.
LASO does not engage in nor provide support for any restricted activities |
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