Contact Our SBA Attorneys for Nationwide Representation of SBA and Treasury Debt Problems
Book a Consultation CallThe Debt Collection Act of 1982 (DCA) and the Debt Collection Improvement Act of 1996 (DCIA), 31 U.S.C. § 3701, 3711-3702E authorizes the U.S. Small Business Administration (SBA), by and through the Department of Treasury’s Bureau of Fiscal Service (BFS) to initiate Administrative Wage Garnishment (AWG) Proceedings in an attempt to seize your disposable wages in connection with an alleged non-tax federal debt allegedly owed to the SBA. 31 C.F.R. § 285 et seq.
Typically, a written notice is sent to your last known address on file with the federal creditor agency. The notice provides information as to the amount claimed, the federal creditor agency demanding restitution and an opportunity for you to submit a formal "Request for Hearing." These are very important rights which you should not simply ignore or take lightly. Because, if you fail to adequately respond to the notice by defending the allegations on the merits or miss the deadline to submit the Request for Hearing, an AWG order will be issued against your paycheck. As a result, it is much more difficult to petition for a release or reduction of an AWG order against your paychecks as opposed to defending against it before one is issued.
Generally, there are three (3) grounds or defenses available for you to assert in an AWG Hearing. You can challenge the existence or legal enforceability of the debt based on applicable federal or state law, dispute the amount of the debt (including the administrative fees and costs) and/or prove that the AWG order to be issued will cause you severe financial hardship.
Citing “financial hardship” as a defense to the AWG order is one of the more popular challenges asserted. Applicable federal government regulations, rules and policies define “financial hardship” as the inability to pay for: (i) food and clothing; (ii) out of pocket health care expenses; (iii) housing and utilities; and (iv) transportation. For all federal debts (tax and non-tax), the Federal Government reviews petitions for relief from forcible collection action based on financial hardship by assessing your expenses as against the IRS’s financial collection standards (a bureau of the Treasury Department) as found on the IRS website page” https://www.irs.gov/Individuals/Collection-Financial-Standards.
National Standards have been established for five necessary expenses: food, housekeeping supplies, apparel and services, personal care products and services, and miscellaneous. The National Standard for Food, Clothing and Other Items includes an amount for miscellaneous expenses. This miscellaneous allowance is for expenses SBA debtors may incur that are not included in any other allowable living expense items, or for any portion of expenses that exceed the Collection Financial Standards and are not allowed under a deviation. The standards are derived from the Bureau of Labor Statistics Consumer Expenditure Survey. The survey collects information from the Nation's households and families on their buying habits (expenditures), income and household characteristics.
2. National Standards: Out-of-Pocket Health Care Expenses
Out-of-Pocket Health Care standards have been established for out-of-pocket health care expenses including medical services, prescription drugs, and medical supplies (e.g. eyeglasses, contact lenses, etc.). The table for health care allowances is based on Medical Expenditure Panel Survey data and uses an average amount per person and dependents under 65 and those individuals that are 65 and older. The out-of-pocket health care standard amount is allowed in addition to the amount you pay for health insurance.
3. Local Standards: Housing and Utilities
The housing and utilities standards are derived from U.S. Census Bureau, American Community Survey and BLS data, and are provided by state down to the county level. The standard for a particular county and family size includes both housing and utilities allowed for your primary place of residence. Housing and utilities standards are also provided for Puerto Rico. Housing and Utilities standards include mortgage or rent, property taxes, interest, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, residential telephone service, cell phone service, cable television, and Internet service. The tables include five categories for one, two, three, four, and five or more persons in a household.
4. Local Standards: Transportation
The transportation standards for a vehicle consist of two parts: nationwide figures for monthly loan or lease payments referred to as ownership costs, and additional amounts for monthly operating costs broken down by Census Region and Metropolitan Statistical Area (MSA). A conversion chart has been provided with the standards that lists the states that comprise each Census Region, as well as the counties and cities included in each MSA. The ownership cost portion of the transportation standard, although it applies nationwide, is still considered part of the Local Standards. The ownership costs provide maximum allowances for the lease or purchase of up to two automobiles if allowed as a necessary expense. You are normally allowed one automobile. The operating costs include maintenance, repairs, insurance, fuel, registrations, licenses, inspections, parking and tolls. If you have a car payment, the allowable ownership cost added to the allowable operating cost equals the allowable transportation expense. If you have a car, but no car payment, only the operating costs portion of the transportation standard is used to figure the allowable transportation expense. In both of these cases, you are allowed the amount actually spent, or the standard, whichever is less.
There is a single nationwide allowance for public transportation based on BLS expenditure data for mass transit fares for a train, bus, taxi, ferry, etc. If you do not have a vehicle, you are allowed the standard, per household, without questioning the amount actually spent.
If you own a vehicle and uses public transportation, expenses may be allowed for both, provided they are needed for the health, and welfare of you and/or your family, or for the production of income. However, the expenses allowed would be actual expenses incurred for ownership costs, operating costs and public transportation, or the standard amounts, whichever is less.
5. Other Necessary or Conditional Expenses
Additionally, you should also explore whether you have other expenses which may meet the "necessary or conditional" expense test to argue that these other expenses ought to be factored into a severe "financial hardship" calculation. The Internal Revenue Manual (IRM) provision, 5.15.1.10 describes those other expenses which may be necessary or conditional. Other necessary expenses meet the necessary expense test and generally should be allowed. The amount allowed must be reasonable considering your individual facts and circumstances. Other conditional expenses may not meet the necessary expense test but may be allowable based on the circumstances of an individual case. There may be circumstances where expenses may be allowed even if they do not meet the necessary expense test. See IRM 5.15.1.2, Analyzing Financial Information to learn about how to argue these other conditional expenses as necessary and, therefore allowable to try and defeat an impending AWG order based on severe "financial hardship."
AWG proceedings can be very daunting. These administrative hearing proceedings generally favor the Treasury’s BFS. Don’t fall into the trap by trying to represent yourself in connection with these proceedings unless you are thoroughly familiar with the applicable federal rules and regulations and have a granular understanding of how to assert any applicable legal defenses. Otherwise, you may be better off having us represent your interests in these AWG proceedings.
Even if Treasury has started an AWG order against you, you may still be entitled to a Hearing if you failed to timely request one.
Contact us today for a Case Evaluation.
Citing “financial hardship” as a defense to the AWG order is one of the more popular challenges asserted. Applicable federal government regulations, rules and policies define “financial hardship” as the inability to pay for: (i) food and clothing; (ii) out of pocket health care expenses; (iii) housing and utilities; and (iv) transportation. For all federal debts (tax and non-tax), the Federal Government reviews petitions for relief from forcible collection action based on financial hardship by assessing your expenses as against the IRS’s financial collection standards (a bureau of the Treasury Department) as found on the IRS website page” https://www.irs.gov/Individuals/Collection-Financial-Standards.
National Standards have been established for five necessary expenses: food, housekeeping supplies, apparel and services, personal care products and services, and miscellaneous. The National Standard for Food, Clothing and Other Items includes an amount for miscellaneous expenses. This miscellaneous allowance is for expenses SBA debtors may incur that are not included in any other allowable living expense items, or for any portion of expenses that exceed the Collection Financial Standards and are not allowed under a deviation. The standards are derived from the Bureau of Labor Statistics Consumer Expenditure Survey. The survey collects information from the Nation's households and families on their buying habits (expenditures), income and household characteristics.
2. National Standards: Out-of-Pocket Health Care Expenses
Out-of-Pocket Health Care standards have been established for out-of-pocket health care expenses including medical services, prescription drugs, and medical supplies (e.g. eyeglasses, contact lenses, etc.). The table for health care allowances is based on Medical Expenditure Panel Survey data and uses an average amount per person and dependents under 65 and those individuals that are 65 and older. The out-of-pocket health care standard amount is allowed in addition to the amount you pay for health insurance.
3. Local Standards: Housing and Utilities
The housing and utilities standards are derived from U.S. Census Bureau, American Community Survey and BLS data, and are provided by state down to the county level. The standard for a particular county and family size includes both housing and utilities allowed for your primary place of residence. Housing and utilities standards are also provided for Puerto Rico. Housing and Utilities standards include mortgage or rent, property taxes, interest, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, residential telephone service, cell phone service, cable television, and Internet service. The tables include five categories for one, two, three, four, and five or more persons in a household.
4. Local Standards: Transportation
The transportation standards for a vehicle consist of two parts: nationwide figures for monthly loan or lease payments referred to as ownership costs, and additional amounts for monthly operating costs broken down by Census Region and Metropolitan Statistical Area (MSA). A conversion chart has been provided with the standards that lists the states that comprise each Census Region, as well as the counties and cities included in each MSA. The ownership cost portion of the transportation standard, although it applies nationwide, is still considered part of the Local Standards. The ownership costs provide maximum allowances for the lease or purchase of up to two automobiles if allowed as a necessary expense. You are normally allowed one automobile. The operating costs include maintenance, repairs, insurance, fuel, registrations, licenses, inspections, parking and tolls. If you have a car payment, the allowable ownership cost added to the allowable operating cost equals the allowable transportation expense. If you have a car, but no car payment, only the operating costs portion of the transportation standard is used to figure the allowable transportation expense. In both of these cases, you are allowed the amount actually spent, or the standard, whichever is less.
There is a single nationwide allowance for public transportation based on BLS expenditure data for mass transit fares for a train, bus, taxi, ferry, etc. If you do not have a vehicle, you are allowed the standard, per household, without questioning the amount actually spent.
If you own a vehicle and uses public transportation, expenses may be allowed for both, provided they are needed for the health, and welfare of you and/or your family, or for the production of income. However, the expenses allowed would be actual expenses incurred for ownership costs, operating costs and public transportation, or the standard amounts, whichever is less.
5. Other Necessary or Conditional Expenses
Additionally, you should also explore whether you have other expenses which may meet the "necessary or conditional" expense test to argue that these other expenses ought to be factored into a severe "financial hardship" calculation. The Internal Revenue Manual (IRM) provision, 5.15.1.10 describes those other expenses which may be necessary or conditional. Other necessary expenses meet the necessary expense test and generally should be allowed. The amount allowed must be reasonable considering your individual facts and circumstances. Other conditional expenses may not meet the necessary expense test but may be allowable based on the circumstances of an individual case. There may be circumstances where expenses may be allowed even if they do not meet the necessary expense test. See IRM 5.15.1.2, Analyzing Financial Information to learn about how to argue these other conditional expenses as necessary and, therefore allowable to try and defeat an impending AWG order based on severe "financial hardship."
AWG proceedings can be very daunting. These administrative hearing proceedings generally favor the Treasury’s BFS. Don’t fall into the trap by trying to represent yourself in connection with these proceedings unless you are thoroughly familiar with the applicable federal rules and regulations and have a granular understanding of how to assert any applicable legal defenses. Otherwise, you may be better off having us represent your interests in these AWG proceedings.
Even if Treasury has started an AWG order against you, you may still be entitled to a Hearing if you failed to timely request one.
Contact us today for a Case Evaluation.
Client received the SBA's Official 60-Day Notice for a loan that was obtained by her small business in 2001. The SBA loan went into default in 2004 but after hearing nothing from the SBA lender or the SBA for 20 years, out of the blue, she received the SBA's collection due process notice which provided her with only one of four options: (1) repay the entire accelerated balance immediately; (2) negotiate a repayment arrangement; (3) challenge the legal enforceability of the debt with evidence; or (4) request an OHA hearing before a U.S. Administrative Law Judge.
Client hired the Firm to represent her with only 13 days left before the expiration deadline to respond to the SBA's Official 60-Day Notice. The Firm attorneys immediately researched the SBA's Official loan database to obtain information regarding the 7(a) loan. Thereafter, the Firm attorneys conducted legal research and asserted certain affirmative defenses challenging the legal enforceability of the debt. A written response was timely filed to the 60-Day Notice with the SBA subsequently agreeing with the client's affirmative defenses and legal arguments. As a result, the SBA rendered a decision immediately terminating collection of the debt against the client's alleged personal guarantee liability saving her $50,000.
Client’s small business obtained an SBA 7(a) loan for $750,000. She and her husband signed personal guarantees exposing all of their non-exempt income and assets. With just 18 months left on the maturity date and payment on the remaining balance, the Great Recession of 2008 hit, which ultimately caused the business to fail and default on the loan terms. The 7(a) lender accelerated and sent a demand for full payment of the remaining loan balance. The SBA lender’s note allowed for a default interest rate of about 7% per year. In response to the lender's aggressive collection action, Client's husband filed for Chapter 7 bankruptcy in an attempt to protect against their personal assets. However, his bankruptcy discharge did not relieve the Client's personal guarantee liability for the SBA debt. The SBA lender opted to pursue the SBA 7(a) Guaranty and subsequently assigned the loan and the right to enforce collection against the Client to the SBA. The Client then received the SBA Official 60-Day Notice. After conducting a Case Evaluation with her, she then hired the Firm to respond and negotiate on her behalf with just 34 days left before the impending referral to Treasury. The Client wanted to dispute the SBA’s alleged debt balance as stated in the 60-Day Notice by claiming the 7(a) lender failed to liquidate business collateral in a commercially reasonable manner - which if done properly - proceeds would have paid back the entire debt balance. However, due to time constraints, waivers contained in the SBA loan instruments, including the fact the Client was not able to inspect the SBA's records for investigation purposes before the remaining deadline, Client agreed to submit a Structured Workout for the alleged balance in response to the Official 60-Day Notice as she was not eligible for an Offer in Compromise (OIC) because of equity in non-exempt income and assets. After back and forth negotiations, the SBA Loan Specialist approved the Workout proposal, reducing the Client's purported liability by nearly $142,142.27 in accrued interest, and statutory collection fees. Without the Firm's intervention and subsequent approval of the Workout proposal, the Client's debt amount (with accrued interest, Treasury's statutory collection fee and Treasury's interest based on the Current Value of Funds Rate (CVFR) would have been nearly $291,030.
Clients borrowed and personally guaranteed an SBA 7(a) loan. Clients defaulted on the SBA loan and were sued in federal district court for breach of contract. The SBA lender demanded the Client pledge several personal real estate properties as collateral to reinstate and secure the defaulted SBA loan. We were subsequently hired to intervene and aggressively defend the lawsuit. After several months of litigation, our attorneys negotiated a reinstatement of the SBA loan and a structured workout that did not involve any liens against the Client's personal real estate holdings.
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