If you've fallen behind on bill payments—or suspect that you might soon—you certainly don't want to lose your CARES Act stimulus check to debt collectors or in a bankruptcy case. In this article, you'll learn how to protect your stimulus check from creditors so that it's available to purchase the things you and your family need.
If you live in California, be sure to read about protecting a CARES Act stimulus payment and bank accounts in California.
The CARES Act didn't include a provision to protect stimulus payments from debt collectors or creditors in bankruptcy, so there's good reason to worry. The Internal Revenue Service (IRS) intends to use direct deposit to distribute economic impact payment funds when possible. However, like other unprotected funds, once placed in a bank account, stimulus payments are subject to seizure.
While it's conceivable that a savvy judgment creditor might intentionally place a levy on a bank account (also called a garnishment in some states) before a recipient can withdraw funds, it's even more likely to happen due to bad timing. Struggling debtors might lose the funds to creditors who were already in the process of taking collection actions.
Important Tip. Social Security benefits are protected from most creditors when deposited in a dedicated account not used for other types of funds (intermingling funds creates a tracing problem that makes proving the protected status challenging). If you aren't required to file a tax return because you're a Social Security benefit recipient, and the IRS automatically deposits your economic impact payment into the dedicated account, you'll have a better chance of claiming that creditors don't have the right to the funds. Learn more about Social Security direct deposit protections.
Fortunately, most creditors can't take money from your bank account just because you've fallen behind on a payment. But some can.
For instance, if you have a tax lien, you'll likely lose the deposited funds. And the Department of Education can take action to collect student loans without first going to court.
Also, if you bank with the same institution that issued your credit card or a car loan and you're behind on the payment, the bank can use a "set off" clause in your credit contract to take money out of your account and apply it to the past-due obligation.
However, some creditors holding unsecured debt must first sue you in court and obtain a money judgment before levying your bank account. Examples of unsecured debt include past-due rent, credit card balances, medical bills, and personal loans.
Most people know whether a creditor has a money judgment against them, but it's not always the case. Here are a few ways you can find out.
Important Tip. Creditors have a limited amount of time to file a lawsuit against you under laws called "statute of limitations." If a creditor files an action after the limitation period expires, you'll have to ask the court to dismiss the case by filing a motion—statute of limitation dismissals don't happen automatically.
You've likely already thought through the most obvious way to protect your economic recovery payment—but you'll want to protect yourself, too. Here are the steps.
If the IRS already has your account information, you can expect a direct deposit. You can check using the IRS "Get My Payment" tool. If it prompts you to provide your bank account number, but you'd prefer a paper check, don't supply it.
Important Tip. Purposefully depriving creditors of payment can be fraudulent. However, you're entitled to use your assets to provide basic life needs for you and your family. Plus, the purpose of stimulus payments is to lessen the financial impact of the coronavirus outbreak—not to pay down creditors. So while it's unlikely that you'll run into a problem, keeping good records will help.
Also, history has shown that when collecting gets harder, creditors become creative. So stay transparent.
A creditor with an established a levy on your account might get the funds before you can act. You'll still have recourse. Every state has a procedure in place you can use to object to a bank account levy. Typically, you'll file an objection asserting undue hardship or that a state exemption law protects the funds from the levy. A state court judge will decide the matter at a hearing.
Your local sheriff or marshall will likely have the necessary paperwork, and many courts have self-help centers that can assist you. But act quickly. You'll probably have to file within ten days or less, depending on your state law.
A new law effective December 27, 2020, protects stimulus checks in bankruptcy. The Office of the U.S. Trustee has issued an opinion finding that the first three stimulus checks issued, along with tax and child credits, are not included in the bankruptcy estate. The new law clarifies that the trustee cannot include these funds for Chapter 7 means test qualification purposes or when evaluating a Chapter 13 plan payment amount.
There is a caveat, however. The law might not cover future stimulus payments under new stimulus laws, so be sure to discuss the current status with your bankruptcy lawyer.
Find out more about protecting your stimulus checks in bankruptcy. Also, consider learning how bankruptcy can help after a layoff or how to file for bankruptcy while quarantined during the coronavirus outbreak.
The laws in this area are changing rapidly, so it's strongly recommended that you consult with an experienced bankruptcy lawyer familiar with local area practices and your particular case.