In most states, debtors facing garnishment of their checking accounts must prove they have funds - such as Social Security or welfare checks - that are exempt from collection.
But in Virginia, bankers have been saddled with the responsibility of determining whether their customers have funds that can be shielded from creditors - a duty that bankers feel is so onerous they are looking to the courts to absolve them of it.
Until 2004 debtors in Virginia had seven days from the receipt of a garnishment notice to request an exemption hearing with the courts to prove they had funds in their accounts that creditors could not take under federal law. But that year a Virginia Supreme Court committee amended the state's garnishment forms. As a result, banks must determine whether customers served with notices have funds that creditors cannot take. If a customer's accounts contain only direct-deposited government benefit checks, a bank cannot let creditors garnish the customer's funds.
Virginia's banks took little notice of the policy change until the Legal Aid Society of Roanoke Valley sued Wachovia Bank in May for letting a creditor garnish the $160.59 in a customer's account - even though the money had come from a Social Security check. The Wachovia Corp. unit was ordered to return the money, reimburse the customer $135 of overdraft and service fees, and pay $500 of attorney fees to the legal aid office.
Henry Woodward, the legal aid group's attorney in the case, said in an interview last week that he and other legal aid attorneys requested the policy change because the old way proved too much of a hardship for their clients. Debtors usually had to wait at least two weeks for a court hearing to prove their exemptions, while their checking accounts remained frozen, he said.
"It was terrible. A disabled or elderly person had no access to their funds for sometimes as much as five weeks, or they may have had to deal with bounced checks because of the garnishments," Mr. Woodward said.
Banks should be able to determine very easily whether a customer served with garnishment papers has a checking account funded solely by direct-deposited government benefit checks, he said.
However, Joseph E. Spruill 3rd, the general counsel of the Virginia Bankers Association, said in an interview last week determining whether this is true is much harder than it sounds. Benefit checks often are commingled with other funds, and it would be very time-consuming and expensive for banks to determine whether some deposits in an account came from other sources, he said.
Moreover, banks do not want to be held liable should creditors later sue them for incorrectly exempting funds from garnishment, Mr. Spruill said.
"Banks should not be in the position of having to determine whether or not there are exemptions - that should be up to the judgment of the debtor and, ultimately, the court," he said.
The bankers group also contends that only the Virginia Legislature has the authority to change who determines garnishment exemptions, and that current state law does not require banks to do so.
Elizabeth M. Bohn, a partner in the Miami office of Jorden Burt LLP, said in an interview last week that she was not aware of any other state that requires banks to determine which funds can be shielded from creditors; most state laws require the debtors themselves to prove exemptions.
"Since the new duty in Virginia is not contained in the law, the rule seems to represent judicial legislation, which is not the function of the courts," she said.
Mr. Spruill said that Sandra Karison, the assistant director of legal research for the Virginia Supreme Court, has agreed to meet this month with the Virginia Bankers Association and with James W. Speer, executive director of the Virginia Poverty Law Center, to discuss the issue.
(Katya Herndon, a spokeswoman for the court, would not discuss the matter, except to confirm that Ms. Karison had sent a letter to the parties.)
Mr. Speer said that he would like to strike a deal that would be amenable to all involved.
"We would be happy if banks were not held liable" for incorrectly stopping creditors from garnishing accounts "if they had exempted the funds in good faith," he said.
But Bruce Whitehurst, the executive vice president of the bankers group, said that bankers would prefer to have the responsibility lifted completely from their shoulders. Banks already have enough societal responsibility policing terrorists, money launderers, and deadbeat fathers, he said.
"While this policy may be well intentioned, it nevertheless puts one more burden on banks - and state law doesn't even support it," Mr. Whitehurst said.