Dealing with Subpoenas, Summonses, Garnishments & Tax Levies

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1 Dealing with Subpoenas, Summonses, Garnishments & Tax Levies by Terri D. Thomas, JD (contact at: January 8, :00 a.m.-12:00 p.m. CST The information contained in this material and the accompanying presentation is designed for reference use only. It is presented with the understanding that Terri Thomas is not rendering specific legal advice, and use of the same does not create an attorney-client relationship. If specific legal advice or other expert assistance is required, the user should contact a competent professional. 2014, Terri D. Thomas 1

2 Sponsored by: Produced and presented by: Terri D. Thomas, JD Terri D. Thomas currently serves as the Legal Department Director of the Kansas Bankers Association. In this role, she provides legal and compliance information to Kansas banks. Prior to assuming this position, she was Of Counsel with the law firm of Spencer, Fane, Britt & Browne. Specifically, she was the point person for "Bankers Choice," a financial institution consulting division of the firm, providing on-sight training and fixed-fee legal assistance to financial institutions in Kansas and Missouri. Prior to joining the firm, Terri was employed in the banking industry for over twentythree years in various capacities. Most notably, she served for fourteen years as in-house legal counsel and trust officer for Bank of America and its Kansas predecessors. She also managed the Trust and Asset Management Division of Capital City Bank, which has facilities in Topeka, Overland Park and Lawrence, Kansas. Receiving her Bachelor of Arts degree from Kansas State University in 1985, Terri continued her education at Washburn University School of Law and obtained her Juris Doctor in Presently, she serves as an adjunct instructor at Washburn University School of Law in Topeka, Kansas, and at the University of Kansas School of Law in Lawrence, Kansas, and is a frequent seminar presenter for banking associations. 2014, Terri D. Thomas 2

3 Dealing with Subpoenas, Summonses, Garnishments and Tax Levies by Terri D. Thomas, JD I. Definitions a. Subpoena- command to appear in court or other hearing at a certain time and place in order to give testimony (typically as a witness). Usually issued by a court, although some states permit an attorney to issue a subpoena in limited circumstances. There are two types of subpoenas commonly issued to financial institutions: 1. Subpoena ad testificandum (appear and give testimony) 2. Subpoena duces tecum (appear and bring documents with you) b. Summons- instrument used to commence a civil action or special proceeding against a person/entity. Person/entity is required to appear at such time and place listed to answer the complaint. c. Garnishment- a statutory proceeding whereby a person s property, money or credits in possession or under control of another are applied to the payment of the former s debt to a third party. Other terms used for garnishment are attachment and execution of judgment. d. Forfeiture- a proceeding in which a government agency can seize property as a result of a commission of a crime or some other fault or penalty. e. Tax Levy- a proceeding in which money is obtained for the payment of taxes that are past due. The proceeding can also involve the issuance of a tax warrant which allows the collector of taxes to empower an agent to seize money or property of the taxpayer that is under control of a third party. 2014, Terri D. Thomas 3

4 II. Where to start? The right to privacy: a. There is no specific right to privacy in the Bill of Rights, however the right to privacy is considered to be in the penumbra of the Bill of Rights (one of those rights that are considered to be held by persons or otherwise implied by the Bill of Rights, but not specifically spelled out). The Bill of Rights contains specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information. The Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people." This has been considered justification for assuming the Bill of Rights automatically protects privacy in ways not specifically provided in the first eight amendments. b. Is the right to privacy absolute? No. In the case of the United States v. Miller (1976), the US Supreme Court stated that financial institution customers had no legal right of privacy regarding their financial records held by financial institutions. c. The Right to Financial Privacy Act In response to the United States v. Miller decision of the US Supreme Court, Congress passed the Right to Financial Privacy Act (RFPA) in The RFPA protects the confidentiality of financial institution records from federal government inquiry by requiring federal government agencies provide individuals with a notice and an opportunity to object before a financial institution or other specified institution can disclose personal financial information to a federal government agency, with a few limited exceptions. 2014, Terri D. Thomas 4

5 III. The Right to Financial Privacy Act a. The RFPA sets forth that "no Government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described" and 1. the customer authorizes access; 2. there is an appropriate administrative subpoena or summons; 3. there is a qualified search warrant; 4. there is an appropriate judicial subpoena; OR 5. there is an appropriate written request from an authorized government authority. b. A customer may authorize disclosure if he furnishes to the financial institution and to the government agency seeking authority to obtain such a disclosure, a signed and dated statement which 1. Authorizes such a disclosure for a period not in excess of three months; 2. States that the customer may revoke such authorization at any time before the financial records are disclosed; 3. Identifies the financial records which are authorized to be disclosed; 4. Specifies the purposes for which, and the government authority to which, such records may be disclosed; and 5. States the customer s rights under the RFPA. No such authorization can be required as a condition of doing business with any financial institution. c. Advance Notice Required The RFPA requires that the requesting federal government agency must give the customer advance notice of the requested disclosure 2014, Terri D. Thomas 5

6 from the financial institution, thus giving the customer opportunity to challenge the government's access to the records before the disclosure takes place. The government agency must serve the customer with a copy of its request or order, or mail a copy to the customer on or before the date which it serves the order or delivers or mails the request to the financial institution maintaining the records. The customer has 10 days from the date of service, or 14 days from the date of mailing, to challenge the requested disclosure. d. Application The Act only governs disclosures to the federal government, its officers, agents, agencies, and departments. It does not govern private businesses or state or local government. It is also important to note that under the RFPA covered customers are individuals or partnerships of 5 or fewer individuals. Corporations, trusts, estates, unincorporated associations such as unions, and large partnerships are not covered by the RFPA. Therefore, the availability of RFPA protection depends on the type of person or entity whose records are sought. e. Exceptions to RFPA There are classes of exceptions in which certain financial records are not protected by the Act. In these situations, disclosure by a financial institution is always permitted, and no authorization, subpoena, or warrant is required. The exceptions are: Disclosures that do not identify a particular customer. Example: Federal department seeks records regarding the employee benefit plans maintained by a national bank. Disclosures in the financial institutions interest, including perfection of security interests, government loans, loan guaranties and loan insurance, as well as disclosures that are relevant to possible violations of the law. Note that disclosure to law enforcement is permissible but this disclosure is limited to the name of the account holder and "the nature of any 2014, Terri D. Thomas 6

7 suspected illegal activity." Example: A federal government agency requests the release of financial records to prove a bankruptcy claim. Disclosures in connection with supervisory investigations and proceedings. When a supervisory agency investigates a financial institution, the rights of customers are not at stake, and therefore such disclosures are permissible under the Act. Example: The Securities and Exchange Commission wishes to investigate suspicious business operations of a national bank. Disclosures under the tax privacy provisions. Example: The IRS may obtain information from a financial institution about a customer without the use of a summons issued under the RFPA. Instead, the Internal Revenue Codes has its own summons issuance procedures found in Title 26 of the United States Code (see 26 USC 7603 and 7609 which deal with the certified or registered mail service of summons upon third parties). A financial institution could ask for confirmation that Title 26 has been followed as verification that proper notices have been provided. Disclosures pursuant to other federal statutes or rules, administrative or judicial proceedings, and legitimate functions of supervisory agencies. Example: The Act permits disclosures to a government agency under the Federal Rules of Civil Procedure because civil litigation already involves the right of notice before records are disclosed. Emergency disclosures and disclosure to federal agencies charged with foreign intelligence or counter intelligence or other national security protective functions. Example: A financial institution may disclose customer records to a federal agency if the customer is suspected of terrorist action. f. RFPA and the Bank Secrecy Act Financial institutions and their employees have complete immunity from civil liability for the reporting of known or suspected criminal offenses or suspicious activity by filing a Suspicious Activity Report, or by filing currency transaction reports for currency transactions in excess of $10,000. g. RFPA and State Law The RFPA does not apply to request for orders for information by state and local government entities. While, the Act does not contain 2014, Terri D. Thomas 7

8 explicit provisions regarding its effect on state law, the legislative history of the RFPA indicates that Congress intended to regulate access to customer records by federal agencies and departments only, without precluding states from regulating access of state and local agencies to such records. Be advised, though, that many states have laws that are virtually the same as the RFPA which cover inquiries made by state and local government agencies. Some of the states providing almost identical protections are: Alabama, Alaska, Connecticut, Illinois, Louisiana, Maine, Maryland, New Hampshire, North Carolina, North Dakota, Oklahoma, Oregon, Utah, and Vermont. Some states, like Florida, California, Massachusetts and Missouri provide for limited protections. Some states (such as Minnesota), though, have adopted laws that permit the financial institution to provide financial information to state agencies that cover customers who are past due on child support payments, or are recipients of state public assistance (see Informal Requests below). Consult with local counsel to know for sure where your state stands. h. The Financial Institution s Duty Since the financial institution has no way of knowing whether a waiting period is required under RFPA when served with a subpoena or summons, or whether an exception to the waiting period applied, the financial institution should follow the instructions on the formal document served upon it. The financial institution, though, should not deliver records to the federal agency until such time that the federal agency certifies its compliance with RFPA (on in the case of an IRS summons, obtain confirmation that Title 26 of the United States Code has been followed). If the agency refuses, it should indicate which exception of the RFPA it is relying upon in order to obtain the information. 2014, Terri D. Thomas 8

9 IV. Privacy of Consumer Financial Information (Regulation P) a/k/a Financial Privacy Act a. The Financial Privacy Act does not specifically deal with financial information provided to government agencies. Instead, it deals with the disclosure of non-public information to third parties. Basically, a financial institution must disclose to a consumer customer its policy with regards to disclosing non-public information to third parties, and if so disclosing such information, provide the customer with the right to opt-out. However, there are certain disclosures of non-public information for which a customer does not have the right to opt out. b. Exceptions to the Opt-Out Prior customer consent To prevent actual or potential fraud To resolve consumer disputes or inquiries To persons holding a legal or beneficial interest relating to the customer (such as a funeral trust account balance to a funeral home) To persons acting in a fiduciary or representative capacity To comply with financial institution regulatory agencies or financial institution compliance/auditors/accountants/attorneys Inquiries under RFPA To consumer reporting agencies In connection with a merger To comply with federal, state or local laws, rules or other applicable legal requirements (such as reporting suspected exploitation of elderly customers) To comply with a properly authorized civil, criminal, or regulatory subpoena, investigation or summons by federal, state or local authorities V. Processing Subpoena Requests a. The Standard Subpoena- issued in civil or criminal proceedings to have the financial institution appear as a witness. 2014, Terri D. Thomas 9

10 1. Ask yourself the following question: Does the court issuing the subpoena have jurisdiction? Normally, a subpoena issued in one state court is not valid in another state (there are a few exceptions for certain areas which cross state lines, such as the regulation of securities sales). Subpoenas issued in one federal court of a state are generally not valid in another state, unless federal statute provides for nationwide "service of process" (this can occur with grand jury subpoenas). A duly authorized officer in any part of a state can issue a valid subpoena request on a party of the same state. It doesn't matter whether the subpoenaed party is a resident of the issuing county/district/township or not. Is the subpoena overly broad or burdensome? You may be able to work with the subpoenaing party to limit the amount of information being provided. Sometimes, the subpoena is so burdensome that a "motion to quash" may be justified (see below). Is there time to comply? If not, you may be able to request for an extension of time to comply, agreed to by the party requesting the subpoena, or alternatively issued by the court. Is the subpoena confidential? If so (such as with grand jury subpoenas), you will not be permitted to notify the account customer about the subpoena. An order prohibiting the financial institution from notifying the customer may be issued in cases where the financial institution insists that it is going to inform the customer of the subpoena. Was it issued by a court? If not, confirm that the subpoena has been validly issued in accordance with state law by contacting local counsel. 2014, Terri D. Thomas 10

11 2. What are your rights when subpoenaed? You could file a "motion to quash". This is a motion that asks the court to invalidate the subpoena request because it is unreasonable or oppressive, or beyond the scope of the law. You normally will have a right to reasonable reimbursement of costs in most states, as well as when it is a federal government subpoena under the RFPA (see Regulation S attached hereto). You can normally request that delivery of the documents be arranged for by the subpoenaing party, or delivered by the financial institution directly to the court. 3. The Steps In Processing: Don't ignore the subpoena. It is a court order and the financial institution must comply with the request; Comply with the request fully unless you specifically have the permission to do less than what is ordered. Failure to fully comply can result in an order for sanctions being brought against the financial institution. Contact the subpoenaing party to clarify the request if there are questions, or to limit the search and production criteria if the request appears to be a fishing expedition. Be advised, though, that courts rarely grant "motions to quash" requests, so normally it is not worth the financial institution's time and money to pursue limitations through the court system; For federal subpoenas, Regulation S (see Attachment 1 at page 26) allows for reimbursement of costs with certain Right to Financial Privacy requests. For state 2014, Terri D. Thomas 11

12 subpoena requests, most states have similar cost reimbursement statutes. Contact local counsel or the issuing court for more information. Electronically Stored Information- The Federal Rules of Civil Procedure (at Rules 16, 26, 33, 34, 37 and 45), as well as the civil procedure codes of many states, now have procedures for including electronically stored information (ESI) in subpoena requests. ESI includes s, voice mails, hard drives, word processing files, spreadsheets, databases, Internet website data, metadata and potentially back-up tapes. Federal subpoenas can now specifically include ESI in the document production request. The pertinent ESI must be produced unless it qualifies for a privilege exception (such as the attorney-client privilege), or is too costly or burdensome to produce. If the ESI is subject to privilege or is too costly or burdensome to produce, the subpoenaed party will have to object to the subpoena request by filing a motion to quash or a other similar objection. If the ESI has been deleted, modified or overwritten as part of a routine and normal practice, the subpoenaed party may be excused from producing the information. Generally, there is an obligation to preserve ESI when a party receives notice or should know that specific information or types of information are relevant to existing litigation or investigation, or to litigation or investigation that is reasonably anticipated in the foreseeable future. b. The Federal Grand Jury Subpoena The federal grand jury is made up of 23 members. It takes 12 of the 23 to find a basis for charging the defendant with a crime. The federal grand jury has extraordinary powers to investigate, and the investigations are directed by the prosecutor (US Attorney's Office). 2014, Terri D. Thomas 12

13 Typically, grand jury subpoenas are confidential. A financial institution will be prohibited from notifying the customer if such a subpoena is received. Warnings of confidentiality are usually included with the subpoena instructions. If you do not fully comply with a grand jury request, and your failure to comply is not excused, multiple grand jury subpoenas can be served on the financial institution, and perhaps a search warrant will be used as an alternative. VI. Processing Summonses- A summons will be used where the financial institution itself is a party to the action, such as in foreclosure or forfeiture actions, where the financial institution has a collateral interest. Summons can also be used where the financial institution itself is the defendant in lender liability, discrimination or other breach of contract/tort actions. a. Note the time, date of service and initials of the person receiving service. This is extremely important because the financial institution will be required to appear and answer the plaintiff's petition or will be permitted to file an answer in order to preserve its standing in a specific amount of time based on the date of service; b. If no answer or appearance is made as directed, a default judgment will be rendered against the financial institution. c. In some instances a court will set aside a default judgment if the defaulting party had a valid reason or excuse for failing to answer or appear. Ignoring or misplacing the summons will not be considered valid excuses. 2014, Terri D. Thomas 13

14 VII. Processing Garnishments- a. Who are the Parties: Plaintiff (garnishing creditor), Defendant (judgment debtor), Garnishee (financial institution); b. Federal-based actions. Even if the garnishment is issued in a federal court judgment, state garnishment law will typically be followed with regards to a collection of a debt between private parties. Generally, federal garnishments rules will be used when the United States is the party requesting the garnishment (see Attachment 2 at page 30 ). Follow the instructions on the garnishment order to determine whether you should follow state garnishment law or a special federal statute. c. Normally, the garnishment must be issued through a court in the same state where the assets are located. Out of state judgments normally have to be registered in the state where the subject property is located. d. The garnishment form will provide the financial institution with instructions regarding: 1. Time period for which the financial institution is accountable; 2. Time period for answering; 3. Effect of not answering (the effect in some states is that the garnishee will be liable for the entire debt if failing to answer); 4. Fees that can be assessed by the financial institution-garnishee for processing; 5. Amount to hold; 6. What can be done if no "order to pay in" is received by the financial institution-garnishee. e. Processing issues (these issues generally apply to IRS tax levies as well, unless otherwise noted): 1. Note the time and date of service, as well as initials of person receiving the garnishment. 2. Does the financial institution have an account owned by the debtor? The garnishment will only attach to accounts for which 2014, Terri D. Thomas 14

15 the debtor has a legal ownership. Therefore, the garnishment will not normally attach to accounts where the defendant is simply an authorized signer, trustee or beneficiary (such as under a payable on death provision). The same is true for IRS levies. 3. Does the account have direct deposits of federal benefit payments? Federal regulations require the financial institution to analyze an account that is garnished which receives direct deposits of federal benefit payments so that funds can be protected for the customer s use. a. Definitions: Account Holder - A natural person who is the owner or beneficial owner of an account; Account - A deposit account to which a Federal benefit payment is routed and credited. In cases where a payment recipient is assigned a customer/member number or there is a master account for the customer, that doesn t represent an account per se, but that serves as a prefix for individual sub accounts, it is the sub account (and not the master account ) that is subject to the account review and lookback period. The term does not include securities, real estate, alternative investment or other asset accounts or address any protection that may exist for securities or other assets purchased with Federal benefit payments. Benefit Payment - Direct deposit payments that include an XX in positions 54 and 55 of the Company Entry Description field and a 2 in position 79 in the Batch Header Record. The term does not include a check. Lookback Period - The two month period that begins on the date preceding the date of the account review and ends on the corresponding date of the month, two months earlier. Garnishment/Garnishment Order- A writ, order, notice, summons, judgment, levy or similar written instruction issued by a court, a State or State agency, a municipality or municipal corporation, or a State child support enforcement agency, including a lien arising by operation of law for overdue child support or an order to freeze the assets in an account, to effect a garnishment against the debtor. State tax levies and warrants would be included under this definition; however an IRS Tax Levy is not. 2014, Terri D. Thomas 15

16 Protected Amount - The lesser of the sum of all benefit payments posted to an account between the close of business on the beginning date of the lookback period and the open of business on the ending date of the lookback period, or the balance of the account at the time of the account review. b. Processing Steps Step 1: Is the creditor the US government or a state child support enforcement agency? If yes, then follow customary procedures (hold the federal benefit funds). For court-issued orders, the US government or child support agency will provide notice that the order is exempt from the rules (the IRS will not have to attach this notice to tax levies). If no, proceed with analysis; Step 2: The financial institution must review the account history to determine if one or more exempt federal benefit payments were DIRECTLY DEPOSITED during the previous two months. This period of time is referred to as the lookback period. - The account review must be done within two business days following the date the garnishment was received, however, the period may be expanded if the financial institution needs additional information to identify the account owner; - If the financial institution finds no benefit payments were deposited during the lookback period, the financial institution will follow its customary procedures for handling garnishments pursuant to state law; - The lookback period is not 60 days, but instead is two months. The two month period begins on the date preceding the date of the account review and ends on the corresponding date of the month two months earlier or on the last date of the month two months earlier if the corresponding date does not exist; - The two-business-day time frame for performing the account review may be extended, with permission of the plaintiffcreditor, if a large number of garnishment orders are submitted by that plaintiff-creditor. However, this exception does not apply if financial institution receives a large number of single 2014, Terri D. Thomas 16

17 garnishments from different plaintiff-creditors. The financial institution is required to keep records on such batch garnishments and creditor permissions; - If the garnishment order does not provide enough information to identify the account owner, the financial institution does not begin counting the two-day period until the information is received; - The financial institution cannot take any action on an account until the account review is completed; - The financial institution must do a separate account review for each account owned, and do a separate calculation for each account; - If the account review shows no federal benefit payments, then the financial institution follows its customary procedure for garnishments pursuant to state law; - If the account review shows that there were federal benefit payments, the financial institution is required to calculate the amount that is protected; - The following were determined by the Agencies to be irrelevant: i. Commingling of exempt and nonexempt funds in the account; ii. Existence of a co-owner on the account; iii. Whether benefit payments to multiple beneficiaries are deposited to the same account; iv. Any instructions in garnishment order are NOT relevant, including information on the nature of the debt or underlying obligation. Step 3: The financial institution must allow the customer to have access to the protected amount which is equal to the lesser of the sum of the exempt payments directly deposited during the lookback period, or to the balance of the account at the time of the account review (not necessarily the day of the garnishment). 2014, Terri D. Thomas 17

18 - The financial institution s calculation of the protected amount which is exempt from garnishment is NOT subject to a legal action by a creditor that is challenging the determination; - If the account has funds that are not protected and would, as a result be funds sent to the creditor under the garnishment order, it may take its allowed garnishment fee from those funds. A fee cannot be taken from the protected amount; - For an account with protected funds, the financial institution cannot later freeze funds deposited after the account review. A garnishment fee may be taken within five business days after the account review, but the fee cannot exceed the amount of nonbenefit deposited funds; - Any actions taken must be based on the balance in the account from transactions occurring at or before the time of the account review. Step 4: The financial institution must notify the account owner that the financial institution has received a garnishment if there are unprotected funds to be sent to the creditor. The Notice must explain what a garnishment is and include other information regarding the accountholder s rights. The model notice can be found in Appendix A of the regulation or in can be found in the US Treasury Guide at Appendix How do you handle jointly owned accounts when only one owner is the subject of the attachment? Joint Tenants with Rights of Survivorship- States are divided on how much of the account to attach. All would agree that the minimum amount that can be held is the judgment debtor's pro-rated share of the account. Some states will mandate that a full 100% of the account be held. Contact local counsel for guidance. IRS levies will attach to the entire account. Tenancy in Common- The judgment debtor's prorated share of the account is typically held, however some states would mandate a full 100% of the account 2014, Terri D. Thomas 18

19 be held. Contact local counsel for guidance. IRS levies will attach to the entire account. Tenancy by the Entirety- If only one spouse is the subject of the garnishment, then usually 0% is held, since the husband and wife are viewed as a single legal unit. An IRS levy against just one of the owners will not automatically attach to the entire account, however it will typically attach to at least half. Contact local counsel for guidance. Special wording in your deposit agreement may help to protect the financial institution when dealing with jointly owned accounts, such as the following: If your account is a joint account, we may pay all amounts in the account in satisfaction of any levy, garnishment or court order, even if it attaches to the interests of fewer than all of the accountholders. 5. Federal Benefit Payments not Directly Deposited (see section above for protection of federal benefit payments that are directly deposited) and State-based exemptions- Federal benefits payments that are not directly deposited and certain other deposits (such as Individual Retirement Accounts) are frequently exempt from garnishment. However, the financial institution has not typically been obligated to raise the exemptions on behalf of the judgment debtor (although some states require the financial institution to notify the debtor or creditor that the exemption rights may be an issue). Note, though, that if the only deposits to the account in question are social security deposits (or the only account is an exempt asset, such as an IRA), then the financial institution can normally raise the exemption on behalf of the judgment debtor safely. In some instances, an IRS levy may attach to otherwise exempt assets. Seek the advice of counsel in these situations. 6. Loans v. Accounts- There have been some nightmare cases where loan proceeds became subject to garnishment. A th Circuit Court of Appeals decision best describes how the 2014, Terri D. Thomas 19

20 financial institution can be inadvertently trapped in a garnishment-loan situation: In Waelder Oil & Gas, Inc. v. Southwestern Glass Co., 332 F.3rd 513 (8th Cir. 2003) the Debtor had a line of credit with the Bank of Arkansas, NA, in which as checks were presented for payment against Debtor s checking account, funds were advanced from the line of credit and put into the checking account to pay the checks. Garnishing creditor claimed that the bank should have reported the deposits on hand as a result of an advance from the line of credit as assets of the debtor on the garnishment answer. The Court agreed. It stated that the Creditor had a right to the advances that flowed through the checking account because for a brief time between the transfer of proceeds from the line of credit into the checking account and the payment of checks, the proceeds became money belonging to the debtor. The Court further found that the bank had failed to answer the garnishment interrogatories truthfully and entered judgment against the bank in the amount of $568, What s the lesson? It appears that the bank should not have deposited the money into the checking account to cover the checks, but rather advanced directly from the line of credit so that the debtor never had control over the funds, thereby making the funds available for garnishment. This could be an operational nightmare for financial institutions. Seek the advice of legal counsel if necessary. 7. Letter of Credit obligation- A garnishment will not normally attach to letter of credit proceeds since most letters of credit have specific instructions of how draws must be submitted in order to make a valid payment request. Note, though, like the loan situation described above, there has been litigation on this issue. Seek the advice of legal counsel if necessary. 8. Safe Deposit Box- A financial institution is normally not charged with knowing the contents of a safe deposit box. As a result, it is pretty much impossible for the financial institution to answer that it is holding property of the judgment debtor, since the judgment debtor who owns access rights to the safe deposit box, does not necessarily have property inside the box. 2014, Terri D. Thomas 20

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