Matavich v. Budak

My research has failed to find any specific statute or rule of court that prescribes any time limit in which defendant was required to file her motion for exemption of subject attached funds from her checking account.

The only pertinent standard is Civ. R. 12(A)(1) which provides that an answer shall be filed within twenty-eight days after service of the complaint upon a party. I recognize that it is arguable whether an attachment is a claim for relief within the meaning of Civ. R. 8(A), but in my opinion defendant's motion was in the nature of an affirmative defense pursuant to Civ. R. 8.

In Finberg v. Sullivan (C.A. 3, 1980), 634 F.2d 50, the court stated, in pertinent part, at page 63, as follows:

"A state law is in conflict with a federal statute, and void under the supremacy clause, if it `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399,404, 85 L.Ed. 581 (1941). * * *

"* * * The overall objective of the social security system is `the protection of its beneficiaries from some of the hardships of existence.' United States v. Silk, 331 U.S. 704, 711,67 S.Ct. 1463, 1467, 91 L.Ed. 1757 (1947). The exemption of benefits from legal process has the apparent purpose of furthering this objective by ensuring that a beneficiary has uninterrupted use of moneys received as benefits.

"The immediate effect of Pennsylvania's current postjudgment garnishment procedures is to provide a judgment creditor with a means of violating the exemption. Social security beneficiaries commonly hold their benefits in bank accounts. Yet, the Pennsylvania procedures make available a process for attaching and freezing bank accounts without regard to whether they contain social security funds.

"Even though the procedures have this effect, they might still avoid interference with congressional purposes if they operate in a manner that avoids any significant interruption of access to benefits. * * * The inadequate notice procedures raise a danger of a permanent loss of benefits. For a judgment debtor who depends upon social security to meet the necessary expenditures of living, these consequences can be severe.

"* * *

"We conclude that the Pennsylvania procedures conflict with the social security exemption and are invalid under the supremacy clause."

In Cole v. Goldberger, Pedersen Hochron (1978), 95 Misc.2d 720,410 N.Y. Supp. 2d 950, the court stated, in pertinent part, at page 729, as follows:

"Whatever the interest of a judgment creditor in the general assets of his debtor subject to collection, it is clear that he lacks any property right in exempt assets. The petitioners before us successfully asserted that funds restrained in their respective bank accounts were comprised wholly of social security (Cole) and veterans' (Reynolds) disability benefits, both of which are categorically protected from `attachment, levy, or seizure by or under any legal or equitable process whatever' * * *. It is apparent, therefore, that the debtor's entitlement to the exemptions is at least as strong as the creditor's right to seize the subject property in satisfaction of the judgment."

I believe that in the decision of this case, we have to avoid a result that would make Ohio garnishment statutes unconstitutional in their application to social security funds as happened in theFinberg case with Pennsylvania statutes. I conclude from theFinberg case that the recipient of social security funds must be given adequate time to assert her claim from exemption when such funds are attached as happened in this case, otherwise any state statute permitting such attachment contrary to this standard would be invalid under the Supremacy Clause.

The time between notice to defendant of subject attachment to the filing of her motion to vacate such attachment, because subject funds were social security funds that were exempt from attachment, is twenty-two or twenty-three days. Under the facts of this case and applicable law I would hold that defendant filed her claim for exemption within a reasonable time. Therefore, I would sustain defendant's assignment of error.