ECOA May Provide A Defense To The Personal Guarantee Of A Spouse
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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 personally guaranteed SBA 7(a) loan balance of $58,000. The client received a notice of Intent to initiate Administrative Wage Garnishment (AWG) Proceedings. We represented the client at the hearing and successfully defeated the AWG Order based on several legal and equitable grounds.
Client personally guaranteed SBA 7(a) loan for $150,000. COVID-19 caused the business to fail, and the loan went into default with a balance of $133,000. Client initially hired a non-attorney consultant to negotiate an OIC. The SBA summarily rejected the ineligible OIC and the debt was referred to Treasury’sBureau of Fiscal Service for enforced collection in the debt amount of $195,000. We were hired to intervene and initiated discovery for SBA and Fiscal Service records. We were able to recall the case from Fiscal Service back to the SBA. We then negotiated a structured workout with favorable terms that saves the client approximately $198,000 over the agreed-upon workout term by waiving contractual and statutory administrative fees, collection costs, penalties, and interest.
Clients personally guaranteed an SBA 7(a) loan that was referred to the Department of Treasury for collection. Treasury claimed our clients owed over $220,000 once it added its statutory collection fees and interest. We were able to negotiate a significant reduction of the total claimed amount from $220,000 to $119,000, saving the clients over $100,000 by arguing for a waiver of the statutory 28%-30% administrative fees and costs.
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