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Author Topic: "Doctrine of Laches"  (Read 7489 times)

socrateaser

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RE: One more question....
« Reply #10 on: Sep 22, 2005, 11:04:41 PM »
>based on more information.
>
>BM just went through a support modification in CA regarding a
>different BF. I believe this was in May 2005.
>BM was at the hearing and interest was added for this BF and
>NOT compounded, of course.
>So, prior to BM filing for compounded interest (June 05), she
>had been through the court process (May 05) with another BF.
>CA controls both orders.
>
>1) Does this info shed any "light" on what has been previously
>discussed? ie, show her knowledge of the whole interest
>question before she filed?

It's not absolutely convincing, but it could be with a few more facts. I'd put her on the stand and ask her the questions I suggested earlier. Then, I'd ask her, "So then it's fair to say that you are absolutely certain that you are entitled to compound interest, because of your prior experience and research?"

If she says anything close to "yes," I'd produce a certified copy of the final order in the other case, and ask the court to admit it into evidence. Then I'd ask her to explain how it is, with her being so sure of her rights, why this prior order from the same CA jurisdiction does not have any compound interest?" (I don't really care what her answer is). Then I'd say, "What really happend is you just think your entitled to a little extra money, huh?"

No matter how she answers, the court gets the message.

>2) Just something nagging here---the OR printout shows NO
>payments received for the entire year of 2003 and that was
>used to compound the interest figures. BM knows payments were
>received during that year and has mentioned amounts paid
>during that year, several times.
>(yes, written proof)
>She knew CA was receiving payments (written proof again).
>Obvious fraud?

This is actually a better argument than the prior. Ask her:

Q: How many support payments did you receive from me during 2003?

A: X, or I don't know. If "I don't know," then

Your honor, I have a copy of a printout from CA DCCS showing that X disbursements were made to Ms. ___ in 2003, and I ask that it be admitted into evidence.

Q: Please take a look at this printout and confirm that it shows you received X support payments in 2003.

A: Yeah, ok, I got X payments, so what?

Q: In your pleading you have requested $Y based on a printout from the State of Oregon showing that you received nothing in 2003. Why did you ask for money that you knew you weren't entitled to?

A: Huh? Oh, I guess I forgot.

No further questions, your honor.

I don't know if the above gets you to a fraud, but it's pretty clear and convincing evidence of deceit or willful ignorance -- either of which gets you a "clean hands" defense, and a dismissal of the action for arrears with prejudice -- which is what you want.

No guarantees, but a good trial lawyer should be able to make your ex look like John Gotti.


speciallady

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Another update :)
« Reply #11 on: Oct 21, 2005, 02:12:51 PM »
Found an attorney that has stated pretty much what you have here--thanks so much, btw, for all your guidance!

Lady attorney--she's appalled that BM is trying to do this especially when the current order will be ending soon and BF has been paying consistantly. Mentioned that a judge will see right through this obvious attempt to keep BF is servitude---my kinda gal!


Thanks again and will let you know what happens come December~

speciallady

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Just thought of another question...
« Reply #12 on: Oct 22, 2005, 04:58:54 PM »
if you would be so kind :)

Would asking for attorneys fees be appropriate? In light of the false information, etc....?

socrateaser

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RE: Just thought of another question...
« Reply #13 on: Oct 22, 2005, 11:03:03 PM »
>if you would be so kind :)
>
>Would asking for attorneys fees be appropriate? In light of
>the false information, etc....?

Yes.

speciallady

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Another update :)
« Reply #14 on: Oct 21, 2005, 02:12:51 PM »
Found an attorney that has stated pretty much what you have here--thanks so much, btw, for all your guidance!

Lady attorney--she's appalled that BM is trying to do this especially when the current order will be ending soon and BF has been paying consistantly. Mentioned that a judge will see right through this obvious attempt to keep BF is servitude---my kinda gal!


Thanks again and will let you know what happens come December~


speciallady

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Just thought of another question...
« Reply #15 on: Oct 22, 2005, 04:58:54 PM »
if you would be so kind :)

Would asking for attorneys fees be appropriate? In light of the false information, etc....?

socrateaser

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RE: Just thought of another question...
« Reply #16 on: Oct 22, 2005, 11:03:03 PM »
>if you would be so kind :)
>
>Would asking for attorneys fees be appropriate? In light of
>the false information, etc....?

Yes.

speciallady

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Hawaii vacation for you my friend!
« Reply #17 on: Oct 26, 2005, 11:40:10 PM »
okay, I can't afford that but you're welcome in Vegas any time!

This is baffling/confusing...
the hearing in December, as quoted by the notice, is to review before the "Child Support Hearing Master", the NRS...that standing for "Nevada Revised Statutes", (there's 5 listed).

1) Now, if CA controls the order, which it does and is stated in the last stipulation agreement (April 05, signed by judge), do any of these Nevada statutes even apply?
The one listed for this hearing on the pubic online court information is NRS 425--which, briefly, is to determine if the CP is on public aid. (there's other things in there about determining parentage...).

*The complete audit, sent to all parties, including Nevada court, has the whole support payments broken up into "On Aid/Off Aid audit" and the full one with both.....

socrateaser

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RE: Hawaii vacation for you my friend!
« Reply #18 on: Oct 27, 2005, 09:51:47 AM »
>This is baffling/confusing...

Yes, it is:

1. CA law controls the amount of the arrears owed.

2. NV law controls ongoing support.

3. NV law controls court the legal process, including equitable defenses, because you are seeking an equitable defense before a NV court, and the other party has brought an action in NV. However, to the extent that CA law has prohibited the equitable defense of Laches to be limited to only interest on arrears, and not to the principal support balance owed, CA law controls, because a different ruling from a NV court would subvert the original CA arrears judgment, and it would promote forum shopping after the judgment to defeat the restrictions of CA law. Obviously, everyone seeking an equitable defense to a past judgment of arrears would quickly run to a more favorable jurisdiction, if they thought that they could get rid of the entire arrearage by proving a fraud in the new jurisdiction, rather than by proving the fraud in the old jurisdiction.

What's confusing is that this last point may be missed by the judge, and you may be able to use it to your advantage, if NV law is more liberal in the area of equitable defenses. I don't know whether NV law is better and that if you prove that the other parent has attempted to defraud the court, that you may be discharged from the entire arrearage. It's a very tough call, for a number of reasons, the most important of which, is that if you discuss this issue with your NV attorney, and he/she recognizes that NV law would give you a better deal, but that CA controls, and the other party's attorney fails to recognize the existence of controlling law or precedent, then under the Rules of Professional Conduct, YOUR attorney must inform the court of the conflict, or your attorney could be subject to suspension or disbarrment for failing ot notify the court.

So, the catch-22 is that you don't want your attorney to actually know how CA deals with laches or any other equitable defense to a support arrearage. You want him/her and the court concentrating on NV law, UNLESS you discover that NV law in this area is worse than CA law.

So, you'll either need a second attorney who is not part of the litigation to do the research for you, or you'll have to do it yourself (or, you can take your chances that your attorney won't recognize the potential ethics violation and that he/she will advocate the more favorable law and "inadvertantly" forget that the less favorable law may be controlling.

Very confusing.

speciallady

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thank you!
« Reply #19 on: Oct 28, 2005, 08:03:57 PM »
and to quote our attorney today, after meeting with her for an hour.....
"she's toast!"


If you care to know the reasons why ( little different than what has been discussed here) please let me know if I can email you as the BM in this case reads here :)

 

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