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Jill E. Martin v. Essex County Support Collection Unit Department of Social Services

May 19, 2011

JILL E. MARTIN, PLAINTIFF PRO SE,
v.
ESSEX COUNTY SUPPORT COLLECTION UNIT DEPARTMENT OF SOCIAL SERVICES, DEFENDANT.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

According to the complaint, this action stems from attempts by the Essex County Support Collection Unit Department of Social Services, defendant, to collect child support from Edward Martin II ("Martin"), to whom plaintiff pro se Jill Martin is married. Defendant moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the Court lacks subject matter jurisdiction. Plaintiff opposes this motion.

II. BACKGROUND

A. Complaint

The following is a summary of the factual allegations in the complaint: Plaintiff's husband, Martin, has child support responsibilities for children from a prior relationship. Plaintiff and Martin share joint bank accounts. Plaintiff has power of attorney for Martin and refers to copies of Martin's "military orders" throughout the complaint.

In August 2010, defendant issued a tax refund offset notice to seize any tax refunds. On or about October 1, 2010, defendant issued a restraining notice to plaintiff's and Martin's joint account at State Employee Federal Credit Union ("SEFCU"). "A letter, along with military orders were mailed out on or about 10/10/10 to Essex County Office of Child Support Unit, notifying of error in calculation, that Plaintiff had Power of Attorney and a copy of Mr. Martin's Military orders and demanded immediate release". Defendant released the SEFCU account on October 12, 2010.

On or about November 12, 2010, defendant issued a restraining notice "on a joint First Niagara Bank Account . . . mailing a copy to [plaintiff's] spouse". First Niagara notified plaintiff and Martin that as a result of the restraint on their account, "plaintiff was now responsible for a fee of $100.00 and the overdraft privilege being permanently revoked". "A letter along with

military orders were mailed to [defendant] . . . notifying again that it was illegal to restrain taxes or bank accounts due to the type of arrears on account, along with the actual past due was not in default according to current N[ew] Y[ork] S[tate] laws".

Further, defendant "sent out Income Execution Notifications to Mr. Martin and employers when the new order came through." "Execution began and on the coupon remittance, it stated:

Current obligation $148.00 with arrears obligations $74.00, both weekly." "On January 28 2009, an administrative directive was sent out to all Child Support Collection Units within New York State listing any arrears are to be collected at 50% of the current order amount". However, defendant "failed to properly update Mr. Martin's account, though support amounts were taken directly from Mr. Martin's pay and being mailed by employers [sic] pay offices."

The complaint contains allegations that defendant has broken laws and committed "abuse of process" with respect to the collection of child support from Martin. The complaint also cites "SCRA laws", which is a reference to the Servicemembers Civil Relief Act ("SCRA"), 50 App. U.S.C. § 501 et seq.

The complaint advances seven causes of action: negligence; abuse of process; defamation; negligence; intentional infliction of emotional distress; arbitrary actions; and infliction of permanent damages. Plaintiff seeks: damages in the amount of $31,425.31; "letters of apology and incorrectness by fault of the defendant mailed to the restrained accounts and the ...


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