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(c) Dr. Klaus-Uwe Gerhardt /

(c) Dr. Klaus-Uwe Gerhardt /

An amount of money that is transferred to a bank account of the beneficiary that is debited with an overdraft facility is to be taken into account as income, despite the fact that the bank offsets the debt. This was the decision of the Schleswig-Holstein LSG in a recent summary proceeding and thus overturned the different decision of the SG Kiel.

In the underlying case, an ALG II recipient had received a settlement of 2.000 received by the employer on the amount due at around 2.400 € in the debit standing account of the benefit claimant had transferred. The job center calculated the 2.000 € as a one-time payment over 6 months in the amount of one-sixth of the amount on each of his ALG II claim to. Unlawful, initially decided the Social Court Kiel, because the 2.000 € would simply no longer be available to the beneficiary due to offsetting against his debts by the bank. The ALG II recipient can also not be referred to secure his livelihood by continuing to use his account to take out a loan with his bank.

This argumentation did not follow the Schleswig-Holstein LSG. The decisive factor is whether the allocated amount of 2.000 € by the recipient is actually usable. This was to be affirmed in the present case, because the disposition framework of 2.400 had continued unchanged, so that the beneficiary had received the settlement amount of 2.000 € had actually been available to cover his living expenses.

SG Kiel, decision of 27.02.2015, S 28 AS 44/15 ER, overturned by SH LSG, decision of 18.03.2015, L 6 AS 38/15 ER; the legal question is under the Az. B 14 AS 10/14 R pending at the BSG.

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13 Comments on "Hartz IV: Money that goes into an overdrawn checking account must also be credited"

Post by Strippenzieher (Saturday, den 21. March 2015)

What interests me about this is the question according to which

Limit value in the sense of Art. 1 GG i.V.m. Type. 20 GG the judge could recognize whether an inadmissible administrative interference in a fundamental right area of disposal occurred, this amount on such an account still to pay out.

The SG will certainly also have failed in the sense of § 17 para. 2 GVG the bank wg. Violation of a possibly inadmissible retention contrary to UWG to invite.

The JC will presumably also have neither provided nor initiated a corresponding "debt counseling".

The loan was not repaid, d.h. the applicant in this procedure could dispose actually of the compensation – like also before over its salary as well as ALG I and/or. II, because his account was nicely longer quite substantially overdrawn.

The SH LSG would certainly have decided differently if the overdraft had been terminated before the severance payment was received and the claimant therefore actually no longer had access to his severance payment of 2.000 € would have come (similar to an account garnishment).

In fact, the SH LSG has overlooked m.E. however, that in any case a part of the severance pay (probably about 800 €) was used to repay the debt and was thus (probably) really no longer available (which the SG, however, – from his point of view comprehensible – had left open). In this amount, at any rate, m.E. a credit from. It is to be examined then however by the job center surely § 34 SGB II.

For debt repayment no share is included in the RB, just as little as for participation in the rule of law z.B. due to lost or simply costly necessary legal remedies. Who therefore a constant subsistence minimum cover (definition in the federal law § 115 ZPO i.V:m. RBEG) does not complain, will not be able to claim compensation shares (deduction of expenses for debt repayment) at least from self-generated income. Even the BVerfG thinks, currently still urgent decisions according to § 32 BVerfGG would not be necessary, if the existential basic right preservation by credit line utilization and various physically survived months allegedly at the expense of the plaintiff is well proven. Who survives, has lost seems to be the new trend, although it was still differently formulated in 1 BvR 569/05. Even though I would like you to be in the right, I do not see this happening, not least because of the lack of a legal basis (§ 31 SGB I). The plaintiff has already legally disposed of these funds when he ordered their use for the (private) repayment of debts and thus in accordance with his disposition evaluation. In the area of a commercial/self-employed entrepreneurial decision z.B. as a restitution/prohibition of withdrawal, this would certainly be judged differently from a legal point of view. The claim to SGB II within the meaning of § 19 para. 1 calculates itself now once completely differently than a "basic right social assistance" from the 2. Disposition sentence thus the § 19 Abs. 3 SGB II, which subsidiarily – but without income allowances – monthly subsistence minima – if applicable. loan-wise in the case of culpable "waste" – must make available. How high is the required ExMin, which is just not the ALG II claim, with this client and which part of it was then no longer actually secured? The fact that the client makes a temporary substitution of uncovered needs by means of a line of credit would then probably be harmless for the (loan) legal claim itself. We can discuss this with pleasure. In the consequence this could mean however that JC for the debt interest avoidance in the bank industry to free rescheduling would be obligated whereby the repayment/forced repayment from income free amounts within the framework of the seizing borders would be to be made and constitutionally required.

One should not make this legal question more complicated than it is: The 2.000 € were available to the applicant as "ready funds". Point. The only question is: Can the applicant be required to once again draw on his overdraft facility to cover his needs?? Since it did so in the past and is doing so in the present (and regardless of the settlement credit spread over six months), this can be well represented. With regard to § 16a no. 2 SGB II m.E. but also the opposite (admittedly somewhat more "theoretical") opinion.

My reference to Art. 1 para. 1, 20 para. 1 GG in the response to the complaint referred solely to the fact that, if applicable. an objective reason for the unequal treatment of benefit claimants with a balanced current account compared to those with an overdrawn current account exists. This becomes clearer with actual unavailability of a single payment with attached account (SG Stuttgart, judgement from 26. June 2006, S 3 AS 1088/05) or proven debt repayment (B 14 AS 33/12 R): Here, too, there is unequal treatment between "economically sound" and indebted beneficiaries. This unequal treatment finds its justifying reason however in the fact that ALG II is an existence-securing social benefit.

I doubt "ready means" by all means, because they would only be actually available in case of timely redirection to another not overdrawn account. Use of severance pay is the creation of new funds.

I would regard here rather a before probably occurred inadmissible refusal of ALG II as subsidy with an ALG I block, because it is not straight not legally abusive, an insurance benefit only under special conditions not to call, but an organization possibility expressly in such a way given by the legislator – here it may give even the factual error to the important reason (a blocking period is then imposed, if the employee terminates even without important and provable reason its employment relationship or causes the unemployment by its behavior deliberately.) – to perceive. The plaintiff has with established facts after the personal consideration, no further choice option, which he would have made wrong in breach of duty. One of the JC if necessary. However, a claim for reimbursement that is to be asserted inevitably also immediately presupposes prior full payment, which in this case was initially substituted in part by the use of the available funds. The benefit SGB II is once a lump-sum reward in case of residual need of well-behaved able-bodied people [§ 19 SGB Abs. 1 sentence 2] and once within the framework of the "best of principle" still the fundamental right guarantee not covered ExMins from Art. 1 and 20 GG as "benefits to ensure subsistence" which are definitely not identical to the "ALG II" from the paragraph 1.

The BSG has already clarified that funds from third parties, which are subject to a repayment obligation (here, withdrawal in the area of the overdraft facility) are never to be considered as income in the sense of § 11 SGB II. Has the JC previously existentially advised that future inflows may not (more) be directed to the current account, because they must be used primarily as income to secure their own living needs?

Whether here already legally an inflow to the account holder has taken place would also be to be checked, because a kind of "retention of title" of future deposits / withdrawals is usually already in the terms and conditions of the banks and were agreed bindingly. Each new overdraft is, so to speak, probably also to be delimited accordingly. (The FiFo jurisdiction to the seizing free amount explains that first old money is used up and afterwards only new and might apply analogously with debts)

In the case of commercial funds, there is also what like z.B. here: "BGHStE 52, 182, 188:
"According to the constant Rechtsprec
of the Federal Court of Justice can
the disadvantage in the sense of § 266 para. 1 Criminal Code
already be in place when a
damage-equivalent property endangerment given
is. This is the case when the
Endangerment after economic consideration
ung already a deterioration of the
current asset situation means…
According to established case law, a
such behavior does not lead to a disadvantage in the
meaning of § 266 StGB (German penal code), as far as the person concerned
is ready and able at any time to
amount to be paid out of own liquid funds
to be paid out in full
(BGHSt 15, 342; BGHR StGB § 266 para. 1 disadvantage 56.)"

At the latest with job loss a (possible) damage opposite the bank is not to be excluded any longer because of worse credit rating. One speaks also here of the creation of new money!

"Objective creditor disadvantage in case of payment via bank account – merely tolerated overdraft; BGH, judgment v. 06.10.2009 – IX ZR 191/05
"If the debtor draws new funds from a merely tolerated overdraft and they flow directly to a creditor as a result of his legal act, the contestation of this indirect grant by the insolvency administrator comes into consideration without regard to whether an attachable claim against the bank arises from the granting of the overdraft for the estate or whether a corresponding retransfer claim is lost through the value date of collateral."

For interested here still my – very brief – complaint response:

The merits of these proceedings involve two questions: (1) Is the inflow of severance pay in the amount of 2.000,00 € per 15.01.2015 to a at that time with 2.450,63 € in the debit current account as "ready means" to cover the current need to use, that is – even if the (renewed) use of the overdraft facility is required for this – possible and reasonable as well as (2), if (1) is denied, credible evidence that for other reasons, such as debt repayment, an actual need-related use possibility at least partially did not (no longer) exist.

The "credit line" of the applicant’s checking account is 2, according to the bank statements you have on hand.400,00 €, the need relevant to exist 979,00 € without health and nursing care insurance contributions. By exhausting his overdraft facility, the applicant was able to compensate for the needs gap caused by the offsetting of the severance payment against his basic security entitlement in the amount of a partial sum of € 333.33 in the month of January 2015 (initial balance 01.01.2015 1.457,76 €). The balance as of 01.02.2015 amounted to 1.999.79 € and at 01.03.2015 1.880.81 €, so that also in these months a need covering was possible under further exhaustion of the overdraft facility.

It must therefore be decided whether – which the SG answered in the negative, just like the LSG NRW, ruling of 23.01.2014, L 7 AS 2169/12 in a comparable case – it is also reasonable for the applicant to cover the needs gap in the amount of € 333.33 by again exhausting his credit line. The complainant finds that (as a phone call that took place today revealed) because otherwise benefit recipients who have a balanced account would be treated unequally compared to those whose account is in the red, for no factual reason. This must be countered by the fact that safeguarding existential needs is not only a good reason, but even a good of constitutional rank (Art. 1 Abs. 1, 20 Abs. 1 GG). This justifies the fact that only income that is actually available and can be used according to need is taken into account in the basic security entitlement, and that any improvements are accepted as reflex effects, especially since § 34 of the Second Book of the Code of Social Law (SGB II) allows benefits to be taken into account to a certain extent.

As far as the complainant objects to this that the applicant could have used the severance pay to cover his current needs and not "to balance the checking account", she fails to realize that the applicant had precisely no possibility to prevent the severance pay coming into his checking account from being offset against the overdraft credit granted to him.

The complainant is further disturbed by the fact that the applicant has been living with an overdrawn overdraft facility for some time now. Why this should no longer be possible after inflow of the severance pay is not clear to her. To this objection it is to be countered that it should be a difficult position for the complainant in particular to refer beneficiaries to taking out loans in order to cover their needs relevant to basic security, since it has precisely the legal mandate to carry out debt prevention, cf. § 16a no. 2 SGB II. In addition, a breach of the dam would have to be feared if such an argumentation were to hold up in court: If benefit recipients who exhaust their overdraft facility could be referred to the renewed use of their credit, then why not also benefit recipients who have never used their overdraft facility so far? Here, the argumentation would then quickly suggest that other benefit recipients ultimately also cover their needs with their overdraft facility.

Insofar as the complainant – also in the aforementioned telephone conversation – pointed out that in these case constellations – one-time payment is offset against overdraft facility on the part of the bank – it is difficult to assume socially unlawful conduct within the meaning of § 34 SGB II, so that the inflow of income would ultimately not be taken into account at all to reduce need, she is to be agreed with. According to the legal opinion here, it would be the task of the legislator to make a regulation for this case constellation, if the legislator should consider the legal consequence – non-crediting of inflows on overdrawn overdraft facilities up to the amount of the overdraft – to be inappropriate.

Here it is to be stated only briefly that after information of the applicant with the compensation probably only a part of the proven obligations was repaid. First of all, the collateral attached to the
15.01.2015 withdrawn 800,00 € were used for this purpose.

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