Is this a major violation or what ?

[ilcmd1]

What is the name of your state? California. Where did all those intelligent people with the sarcastic humor go ? I found their response quite amusing as I have a sarcastic humor myself. please, even if you can't help, reply so I don't feel so isolated!!! Thank you. When filing our petition for CH.13 Bk., an automatic stay was in effect. At that time, husband's wages were being garnished for ARREARS only child support(child is 26). Filed petition 11/2003. County of San Bernardino Child Support Services was sent notification. Wages continued to be garnished. Our attorney contacted SBCSS to in form them to stop the garnishment. Garnishment continued until 02/2004.
According to guidelines as what a creditor can not do, unless they petition the court to have the stay removed, this is an act of contempt of court.
Notices from this agency also said they were reporting hubby to credit bureaus and to the IRS to take our home or take our bank account monies. All this is going on prior to confirmation. I informed our attorney, but alas there is no financial gain in filing contempt charges against a state agency, nothing was done. The judge was not informed nor was the Trustee as to the violations that were occuring. Is this a matter of malpractice by our attorney ? Also, in court I spoke up to inform the judge that the child support agency also put a lien on our home, another violation of contempt. Both our attorney and the state's attorny were asked by the judge why this was done and the response was they were working it out. The judge mentioned something about santions, but nothing was done. I feel if the judge was informed as to all the contempts of court that the state committed, he might impose sanctions on both attorneys. Am I correct and what can I do about this since my attorney has failed to do anything about it ? Thank you

[Ladynred]

Push the issue !!! I'd be all over the attorney and INSIST that he file a Motion for Contempt and Request for Sanctions !! If he won't do it, you can always hire another lawyer who will. Its probably going to cost you money for him to go thru the process, but you are PAYING HIM to be on your side !

[anabanana]

What, are you kidding? These people work together all the time. You're just another loser slithering through their playground, as far as they're concerned. The judge will tell you that if your attorney has failed in his duty, you can sue him. And then any malpractice attorney will want to know if he's insured, and if he's not, nobody will sue him. The best malpractice insurance for attorneys is no insurance at all.

Your attorney isn't going to do anything other than the bare minimum for you, it looks like. Getting ANYONE in the BK system to actually do more than shove simple paperwork through is an exercise in futility. And they probably won't start throwing rocks at each other on your behalf. But Lady is right. I've been hit with motions for sanctions six times. That's his friggin' job, regardless of who is violating the stay. You'd be in better shape if it were someone small and helpless you wanted to kick around.

Speaking of which, you don't honestly feel he shouldn't have to pay the child support arrearage do you? WTF is up with that? Screw over your gigantic institutional creditors, if you must, but if some woman somewhere raised that kid without the aid and assistance of his father, why do you think that's okay?

[ilcmd1]

I am in California

Not only has he paid child support, We had anarrears only claim in our 1st Ch. 13, 1998-2003. The child was emancipated in 1998. The arrears was due to my husband losing his job. Prior to that His wages were garnished every week since 1984. So don't even go there about not paying for the child. The child that is 25 now and after paying what Child Support claimed in the first Ch. 13, which was $13,361, before the Bk. was dischaged, they started garnishing his wages and said he still owed $12,000. Now you tell me how you pay off a claim for $13,651 and end up still owing $12,000 ? In 2000, while still in Ch. 13 Bk, we recieved a notice saying he owed $15,000, after paying them for over 2 years. I requested an accounting and they sent me 2 different accountings. Again in 2001 I requested an accounting. In 2003, we filed a complaint with child support services and before we went before an administrative Law Judge, CSS sent us a letter saying my husband over paid $2,320. The child had spent most of the time living with her grandma. In 1995 she spent 3 months with her mom then back to grama till she was emancipated. CSS started sending bills for 2 accounts. Payment applications of current child support payments are to go to where the child is residing. Distribution, according to child support guidelines and state code and federal codes state payments go to current support order first. CSS took wage garnishment payments and credited some to each account, causing an arrears balance to accrue on both accounts. When the court order for payments first started, the order was $175 per month. Some months the garnishment did not cover the full payment. They base the payments on 52 weeks. Well this causes shortages, which intern causes an arrears balance. In months with 5 pay periods, the money is supposed to 1st be applied to current support, then to the arrears interest, then to the arrears balance.
I started going over the 5 different accountings fom back to 1984 to present. There were months they only credited 2 weeks payment, 3 weeks payments and some with 5 weeks. They failed to credit State and Federal Tax intercepts. They failed to credit in the month of May(vacation pay, sick pay, anniversay date of hiring) 5 weeks of pay periods plus the normal 4 or 5 weeks wage garnishments. My husband had kept his paystubs from Von's, showing how much the weekly wage garnishment was and the year to date paid. A notice from Von's stating to retain your pay stubs because it might take too long for them to get the information to you.
Well, according to child support guidelines, the payment is to be credited on the day it is taken from the emplyee's salary. I was told by child support that if it wasn't in their system it wasn't paid. I told them I had the original paystubs from Von's to prove it was paid and according to law, if it was not then it was up to them to go after Von's for the money. I was told that the original pay stubs were not acceptable evidence. But, according to the Federal rules of evidence, they were legal documented evidence. When I asked them why the Tax intercepts were not credited, as I had the original notices about the intercepts, I was told just because the FTB said they sent it to Child Support, it doe not mean that they didn't take it back and if its not in child supports accounting it wasn't paid. I said if the Ftb or Irs took it back then it would have been refunded to us. Also, the payment from the United States Trustee, were not credited for the months they were paid. This would cause at least $100 in interest to be added on to the interest balance, causing the next payment to go to the interest only and not reducing the principal balance, How convienent. Well due to my perserverance and our objection to their claim amount, I got the amount down to $6,700, instead of the original $12,000 they had claimed. This took 1 1/2 years and each monthanother $100 was added on to the interest, so there is $1800 more to pay. So in the 1st Bk. when the trustee made a payment of $200, it did not get taken off the principal balance. It was taken off the interest balance, then they would add another $100 in interest for that month. Only California applies payments this way and charges 10% simple interest. It would not be bad if the payment was applied to the principal and the interest but it is not. That is why you have so called deadbeat dads killing themselves on the court steps in San Diego, because they can never see the light at the end of the tunnel. They will be paying the rest of their lives, due to the way payments are applied. But for every $3 of arrears money collected by a county, the Federal Government pays $6 to the state and also the State will kick down monies to the county agencies that collect at least 72% of arrears, then after that is met, the D.A.'s office gets kicked down 1 % of the arrears monies collected. I know this because I have read about the business of child support arrears collecting. If a man loses his job and cant pay for a few months, when he does start paying again, he never seems to get caught up. They used to garnish current and arrears support from pay checks. Why didn't they garnish any arrears monies from my husbands paychecks. They are allowed to take up to 62% of a persons salary to pay support obligations ? Because, there is too much money for the state and county to make off of collecting arrears.
The funny thing is that in 1998, this state was supposed to have the interagency computer system set up. It was a federal order. For every year they did not have this system set up and working they were fined by the Federal Government. In the fiscal year 2003-2004 the fine was over a million dollars they had to pay to the Feds. But they still got their kickbacks for every dollar of arrears money they collected. Funny, they were not charged 10 % simple interest on this fine.
Even the representatives and congressmen of this state had a meeting about the outrageous amount of interest and how the monies were being applied. They said the IRS only charges 4% interest on unpaid taxes, so why should child support charge so much. Some other states will even dismiss the interest fees if the parent starts paying current and arrears support owed. Only in California has this become major business with investors outside of the government setting up these systems (IBM) is setting up the newest system they are changing over to right now. Its all about the children is a joke when this money is not even going to the childeren. It goes into a state fund and is disbursed to the agencies.
The petion in this Ch. 13 Bk first was written to iclude interest. $251 per month for 30 months. The amended claim I just recieved from my lawyer states $211 per month for 30 months. Why was the interest left out when that is supposed to be why they were not paid off in the 1st Bk. The attorny and the United States Trustee know that the interest is non-dischargeable and since it was included in the 1st petiton and not the amended 1, it makes this a non feasible plan and the Trustee should have sent us something stating this. Also, oh nevermind I have vented enough.
Moral: Deadbeat dads for the most part, is a slanderous label put on men that attempt to pay but are so overwhelmed and distraught by the arrears interest that continues to accrue while they pay current support, that they can never see an end to support. If people only really knew what goes on. All the monies they failed to credit that were paid by my husband is just 1 example. How many people keep their pay stubs for 20 year, 10 years or even 3 years ? Not many. To try to rectify this in civil court would have been close to immpossible, you see, when a government agency submits a claim in the Federal Bankruptcy court, they have just given up their sovereign immunity. Besides who could afford an hourly attorney fee to take on the chld support services ? With all the delay tactics and false accountings that are provided, even a forensic accountant couldn[t figure out child supports accounting system unless they were familar with their guidelines.(I took a child support case worker and a director of Child support services course online from the child support sevices web site) Thank you My fingers are tired now.

Claudette

[Ladynred]

Wow You sure have done your research ! I really don't how you fight a state agency like that. Obviously fighting the state 'machine' is a daunting and expensive prospect, and considering what you've managed to do so far all I can say is BRAVO for your efforts. That nonsense about it 'not being in their system so it never happened' is nothing but an excuse for 'its not on our screen so we're not going to bother looking into it'. I can see why the men (and women) ordered to pay child support would fall on their swords on the courthouse steps !!

I wish I had some solid advice for you, but I can't begin to know how you'd fight this short of an all-out legal war - that would cost a LOT of money and probably has little chance of success. As always, 'systems' like this can only be fought in the courts by the wealthy - and the wealthy can buy their way out of almost anything - Whacko Jacko and OJ are perfect examples.

[ilcmd1]

I am in California

Thank you Thank you, Ladyinred, At least my spending the last 1 1/2 years sitting in front of my computer was not in vain. If I could open up the eyes of people to really see the unjustices that go on and extend myself to help others(because that is why we go through trials and tribulations, to gain knowledge to help others), then I guess it will be worth it. I just needed to know how to stop this plan from being confirmed without the judge dismissing it. This is mostly due to the Predatory loan servicer, that had a nationwide class action lawsuit in which they were ordered to pay out, but it was nothing compared to the many people that lost their homes due to unscrupulous practices that continue to this day. More contempt issues.
That is why I had asked my attorney to reopen my 1st Bk., due to the predatory loan servicer crediting my house payments outside the Bk. to previous month, then adding late fees on top of that. When the trustee is sending them the money to clear up the discrepancies, my current payments are for the current month. That is why there is Bk., to cure a default(in all reality, I was not in default, they returned 7 of my payments saying I was in default. I had every cancelled check and next day mail receipt). I was uninformed, as most people are when they first go into a bankruptcy. Originally they asked for $27,000 to clear up the arrears. I did not owe that. Next they graciously said they would wave late fees and some misc. fees. They came down to $14,000 Wow, taking off $13,000 from the original amount. Attorney came pushing for us to accept this. I said NO, I don't owe that. At the courthouse, they made another offer to the attorney $12,000. He advised us to go with it. I said why, I don't owe it. But being uniformed about predatory loan sevicing, we were talked into accepting thia amount. No one told us there would be interest fees also. By the time we finished paying off the first Bk., We paid $16,000 to them. Then 8 months later, they send me a notice that they are foreclosing on me for not recieving 3 monthes payments. I had the cancelled checks and next day mail receipts in my hand. Then they said"oh no, its 5 months payments you owe". I told them I don't think so due to being in a bankruptcy, if I defaulted on 1 payment that would have caused it to be dismissed. That is the main reason we went into a 2nd BK. because our attorney told us the only way to deal with this is through the Bk. courts. He said he would file contempt charges and charges for them wrongfully threatening to forclose on me when I was current in my payment. Later, their attorney admitted I was not in default, but I owed 4 payments, the ones they would not accept. They agreed to no late fees, no attornies fees, but alas, I have alread had $600 in attorney fees charged to my home mortgage. Reopening the 1st Bk., would of allowed the attorney to file contempt charges and misapplication of payments outside the Bk. But after they agreed I was not in default and after causing me to file a 2nd Ch. 13 Bk. My attorney put it by the wayside and spent this time in the child support battle that wore him out. But child support was not the real issue of this Bk. It has not been addressed and I do not believe this should be confirmed. I need to find a way to stop this from happening by or on Tuesday. My attorney talked to the trustee prior to our 341 meeting and was told he can petition the court for more money because this was a long hard case. I chimed in with the reply "yes it was, I never worked so hard on something of this magnitude in my whole life"). Meaning I did the work, the attorney filed papers electronically and had to make a few extra appearences at the court. So, if the main issue was to clear up all the wrongs from the 1st Bk and stop a false foreclosure, then I do believe that I was not represented for what the attorney told was the only way to take care of the issues with the house and to file contempt charges against them(he could realize money out of that contempt filing, especially since there are court orders, even in Ca. as what this company was forbidden to continue doing) Of course they don't abide by court orders. They still, in this Bk. continue to credit payments outside the BK. to prior months and add misc. fees and attorney fees, that they said they would not charge. So you see, between these to entities, and the fact that my attorney has not even begun to do as he promised regarding the predatory loan servicer(Fairbanks Capitol Corp, aka'Select Portfolio Servicing, aka Olympus Loan Servicing, aka Calmco, aka Temple-Inland-Mortgage corp). He definitly does not deserve to petition the court for more money, when our agreement was $2000, straight Ch. 13, and for $2,500 you get all the bells and whistles, meaning He would represent us in any adversary hearings or court appearances and file motions, etc. So, since we were not invited to the confirmation hearing, we will show up and if possible try to say something short and sweet to the judge, although he will be annoyed at the fact I want to speak. Like I said, the paln is not feasible, we were not represented according to what the attorney reccomended to begin with. No contempt charges filed against anyone, and even the United States Trustee made a comment saying "this is like a soap opera" at one of our 341 meetings. That was unethical I do believe.

But again, thank you Ladyinred for acknowledging that I have worked hard and that I do know somewhat about what I am discussing here. No matter what your position is in life, it makes me feels somewhat content to be "Bravo-ed" by a complete stranger in a public forum. Now if I only knew what to do to stop this confirmation without negative reprecussions. Take care.

Claudette

[anabanana]

Claudette:

If our issues were more similar, I'd recruit you. Basically, we're both screwed, near as I can tell.

I've come to accept that I'll never get justice, which makes it easier to keep fighting, because I don't get so heartbroken every time the system fails me.

But in the meantime, I went to work for Legal Aid, so that when real people with legitimate bankruptcies and family law cases need help, and can't get it, I can maybe help them get a lawyer. Doesn't help ME afford one, but it's a little vicarious EFF-YOU back at the cold and dysfunctional system that's killing me off day by painstaking day.

I almost blame my ex less. At least one could see how an individual with delusional issues could behave this way. But the whole system? There's no excuse for the institutionalized disregard.