negligent misrepresentation

[lissa j]

What is the name of your state? california

I found this at a website and I have a question about item 5.

The approved jury instruction for negligent misrepresentation is more helpful than the statutory definition:
1. The defendant must have made a representation as to a past or existing material fact;
2. The representation must have been untrue;
3. Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true;
4. The representation must have been made with the intent to induce plaintiff to rely upon it;
5. The plaintiff must been unaware of the falsity of the representation; must have acted in reliance upon the truth of the representation and must have been justified in relying upon the representation;
6. And, finally, as a result of the reliance upon the truth of the representation, the plaintiff must have sustained damage.

If the plaintiff is reliant upon the truth of the representation to exercize a right the misrepresentation would deprive him of, why would it be necessary for the plaintiff to have been unaware of the falsity? that makes no sense.
My boyfriend has custody of his children. He owes money for child support arrears. The Child Support agency says his ex is owed money and they cannot negotiate them. They said at an administrative hearing they don't know how much is owed to the ex (hence how much owed to the state obvious negligence, they are supposed to know and I believe it should be easy enough to determine as well--that may be indicitave of intentional fraud but it isn't proof) if the arrears are all owed to the state and we have always believed they are. according to Ca Fam Law Code Sec. 17560 the agency has to have a program where they may accept offers in compromise of state-owed arrears. The agency does have such a program and their written policy is that upon certain conditions being present, they reduce the debt depending on income and expense factors and it could be reduced up to 100% my boyfriend would qualify my guess is that given his circumstances it would be a 100% reduction but even if not I know he has paid far more than the compromise amount would have been. Why would the plaintiff have to believe the representations were true in order to seek damages when he can't benefit from the right he is being deprived of even if he doesn't believe them? He has filed a claim for damages that was rejected and may sue them.

I have reasons for preferring this route even though we won't have an attorney to filing in family law court. I bet others in his shoes will have an attorney should he win.

 

[stephenk]

what does your boyfriend believe he owes the State? Has he ever made any payments to the State for child support? Has he ever applied with the program that offers to reduce the amount owed? If no, why not?

Is his current custody of the kids through a court order? does mom have to pay him for child support? is hubby using State funds to help support the kids?

 

[lissa j]

My boyfriend believes all of the arrears are owed to the state. he has been making payments for two years through wage assignment, but the agency has been giving it to his ex-wife. He has not applied for the program because first of all they sent him the application for the program for reunified foster care children, which is different than the AFDC arrears program and secondly because, if the misrepresentations were true, he couldn't benefit from the program as his payments do not even cover the accruing interest on the account and as I said according to the agency they wouldn't even know what amount to base the compromise on and I have the recorded transcript of the hearing where they said this. His custody is physical custody he hasn't yet got a court order but we live in Indiana and the children have been here with us for two and a half years, and the agency is not charging current support because he has custody of the children. The reason the account is in arrears is because the amount ordered was too high. It is my belief that it was based on the size of the welfare check and no guideline. I calculated according to the guidelines, and both parent's income and the amount I came up with is approximately half of what was ordered.

 

[lissa j]

Just for clarification, how much he owes is not really relevant to the program but including interest it is over $100,000.00. The things that are relevant are his ability to pay now, whether he had the ability to pay then, the needs of the children subject to the order and the like. When calculating the guideline amount, I used the circumstances at the time they got the judgment. The only figure I had to make a presumption about was his expenses (I had the ex-wife's information from a declaration she signed) I might add that his hourly wage at the time was $12.00 and the year was 1994. I still came up with an amount half what they ordered. What kind of ridiculous presumption did they have to make when the minimum wage was $4.25 per hour? Granted he did not file papers to rebut the presumption but he told me he went to the agency and they said it's not their problem (those are the words he said they used. I wasn't there but don't doubt it)

Let me tell you why I believe this (regardless of the exact words) I too had a case in Los Angeles. The day I received a judgment, I went to their office in person and told them I was not served notice of the hearing and am an SSI recipient and not required to pay. They told me they have proof of substitute service (whatever that is but it sure isn't proof I was notified) and I would have to file a motion or they would have to try to collect. The law is very clear about the agency having to file a motion in those circumstances. My case has been closed but not before they hired a professional collection agency (to harrass?) because the Franchise Tax Board refused to enforce the judgment. Basically they wasted plenty of taxpayer money for two years knowing the judgment wasn't enforceable (and knowing this the very day I got the judgment) This is all irrelevant to my boyfriend's case (except to establish that their modus operandi is to deceive people about what their responsibilities are) the purpose of telling you is to explain why I believe he did attempt to get the agency to assist him at a reasonable time and they wouldn't. The premise of my boyfriend getting damages is that had the agency not misrepresented who the money is owed to he could have applied for and received a compromise. the demand is to calculate what the compromise would have been and refund what he overpaid. Also, the agency stated that they could not do anything without both parties signatures. Then they did just that after he filed a claim for damages (the only thing he signed was this, and could be construed as a threat to sue) albeit they reduced the amount he was paying, but it is still more than he can afford and is not an acceptable substitute to the demand he made.

 

[lissa j]

I tried to answer all the questions but forgot one. No they do not receive public assistance. He has applied and is consistently denied because "his income exceeds the gross income standard" His income fluctuates and on an annual basis, his gross income doesn't even approach the limit. every time he applies, the four to six pay stubs they use indicate he does but it is not reflective of the truth. [What can we do? The FDA director has proposed a rule for state's to have the option of deducting support payments to determine eligibility--instead of only deducting if eligible as they do now (this proposal was a result of my complaint) ] I don't think this is good enough (it shouldn't be an option) but it is better than the response (no response) I got from California's Governor, California's Attorney General, the U.S. Attorney General, and the U.S. Office of Child Support Enforcement. My latest contact to Washington was made to the U.S. Comptroller's Office (what the heck do they mean they don't know how much is owed to the state?). In truth I did receive a response from the State's Attorney General's office. This was a letter spelling out the Attorney General's Role in Child Support Enforcement which include's making sure the laws are followed (hello, my complaint was that they are not) He (my boyfriend) received notice that there is a new law saying arrears accounts will be turned over to the FTB for collection. that's interesting because as far as I know, that has been the law for at least five years now (I don't know how long but I know at least five years) Is this really an order from the Attorney General? I don't think it is a new law?

 

[lissa j]

ok then, seems I have answered plenty of questions. Would it be too much to ask for someone to answer mine? Is it necessary for a plaintiff to believe misrepresentations were true, when they wouldn't benefit from the law, as in this case the compromise law (which was created, by the way, for these types of situations) if unless the representations were false?

 

[john123456]

Why do you believe the money is owed to the state? Was the ex-wife on welfare?

 

[lissa j]

the ex-wife was on welfare, the child support orders say to pay the department of public social services. there are two orders. the first was a judgment the county got because the wife was on welfare, the second was a jugment for a divorce "based solely on prior order" we have a copy of an audit they did to "consolidate" the two orders showing all arrears from the first order and current support and the arrears accumulated between the second judgment and the audit payable to "welfare"

 

[lissa j]

Also we have seen no evidence that this audit was changed until after they knew he had custody and I know for a fact that his ex was on welfare the whole time after that audit. In fact, if they could prove he owes his ex, I'm sure they would have done so at the hearing.
Just for the heck of it let me show you what I mean about the child support order being more than he could afford to pay and more than they should have even presumed anyone could afford to pay (since his income was fairly generous)

The statewide uniform guideline for determining child support orders is as follows: CS = K (HN - (H%) (TN)).
CS = child support amount
K = amount of both parents' income to be allocated for child
support as set forth in paragraph (3)
(C) HN = high earner's net monthly disposable income
(D) H% = approximate percentage of time that the high earner has
or will have primary physical responsibility for the children
compared to the other parent.
(E) TN = total net monthly disposable income of both parties.
(3) K (amount of both parents' income allocated for child support)
equals one plus H% (if H% is less than or equal to 50 percent) or
two minus H% (if H% is greater than 50 percent) times the following
fraction:
Total Net Disposable
Income Per Month K
$0-800 0.20 + TN/16,000
$801-6,666 0.25
$6,667-10,000 0.10 + 1,000/TN
Over $10,000 0.12 + 800/TN
For example, if H% equals 20 percent and the total monthly net
disposable income of the parents is $1,000, K = (1 + 0.20) X 0.25, or
0.30. If H% equals 80 percent and the total monthly net disposable
income of the parents is $1,000, K = (2 - 0.80) X 0.25, or 0.30.
(4) For more than one child, multiply CS by:
2 children 1.6
3 children 2

CS = unknown
K=.32 x .25=.08
HN=.(12 dollars per hour is 2080 dollars per month (without allowing for days off or OT) I think $800.00 is an unreasonable amount to allow for all the allowable deductions. HN=1280
TN= (her net disposable on her declarartion was 540 ) TN=1820
: CS = K (HN - (H%) (TN)).
CS= .325 (1280-(.30)(1820)
CS = .325 (1280-546)
CS =.325 x 734
CS=238.55 x 1.6 (for two children)=381.68

He was ordered to pay 746.00