Thursday, June 29, 2006

attachment of exempt monies - proposed rules

The state Civil Procedural Rules Committee has proposed rules to prevent the improper attachment of various exempt monies -- including Social Security, veterans' benefits, etc. -- when the monies have been "deposited electronically on a recurring basis and are identified as being funds that are exempt from execution,levy or attachment under Pennsylvania or federal law."

http://tinyurl.com/qhsg2 - Proposed Recommendation No. 215

The recommended rules resulted from a proposal (attached) submitted in February by an ad hoc group of legal aid advocates throughout the state.

Comments on the proposed rules are due by August 31, 2006.

IFP - Rule 240(c) - use of gross income/legal aid guidelines - appealable order

Amrhein v. Amrhein - Superior Court - June 26, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a11022_06.pdf

Mother/appellant -- who was not reprepresented by a legal aid attorney, so Rule 240(d) did not apply -- failed to order a transcript of a custody hearing, after trial court denied her IFP application without a hearing, based solely on the court's application of the gross income to Neighborhood Legal Services Assn. guidelines.

The court held that the trial court's denial of IFP status was a final appealable order, because it terminated the litigation.

The court rejected the trial court's use of NLSA guidelines, which are based on gross income. "This procedure is in direct conflict with the dictates of Rule 240(c), which requires listing and consideration of "not only gross income but also debts and obligations...." The "rote use of the NLSA guidelines was improper because it failed to consider...[the party's] obligations and monthly espenditures...." The procedure "conflicts with the requirements of the state rule." The court said that the trial court should have focused on whether a person can afford to pay and could not reject allegations in an IFP application without conducting an evidentiary hearing. IFP applications must be considered on case by case basis, as required by the rule.

The court reversed the denial of the IFP and remanded, with directions that the trial court hold an IFP hearing w/in 10 days, consider all of the mother's averments, including "the realities of life expenditures...the unassailable expenses of life...."

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