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May 28, 2024, 06:20:50 PM

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Challenging Arrearages From Private Support Collection Agencies

States are utilizing commercial agencies in an attempt to raise collection levels while simultaneously absolving themselves of the blame that results when the arreages aren't able to be collected. (Due to a variety of reasons, in many cases the money simply isn't there to be gotten.)

A typical example of a private support collection agency is Maximus. Maximus is a collection agency operating in more than 40 States, and they claim to be the "largest and most successful provider of child support privatization services" in the nation. Maximus typically contracts with each State's Child Support Collection Office (Office of Support Enforcement) to collect child support in cases where the Support Collection Office has been unable to locate the delinquent parent or where collection efforts have been unsuccessful. Maximus is normally paid a 17.5 percent commission on its collections.

Unfortunately, both the Support Collection Offices (in nearly every State) and collection companies like Maximus have been found to be seriously deficient at record keeping, often inflating the amount of arrears due to poor record keeping practices, or in some cases creating a false arrears through their questionable record keeping.

We're indebted to J. Haeger for this step-by-step walk-through of an effective method of challenging inflated or erroneous claims of arrears. Mr. Haeger notes that these techniques can also be used to challenge erroneous claims from State-run Child Support agencies.

Challenging Erroneous Arrearages In Court

When challenging a support collection agency in court, the important thing is to have both receipts and a spreadsheet. Receipts alone aren't enough. With only receipts, even if you are current, you will be extorted for money you don't owe--at least one payment, possibly more.

The spreadsheet must show, on separate lines:

  1. Each obligation as it arose
  2. Each payment as it was paid

Then, with your receipts and completed spreadsheet, you can go to court (don't waste much time with the support collection agency, just enough to be able to honestly tell the judge that you asked (in writing, of course, with a "received" stamp from the support collection agency on the front -not the back- of your request) and that they couldn't show calculations to justify their claim. Their job is to collect as much as they can whether it is owed or not, not to honestly assess how much you owe.

Ask the support collection agency to look at the computer screen (not take their word for it, but actually look at the screen) from their record keeping system. If they refuse, write down their reason (excuse) for why you can't look at a record of the payments you made. It will be good for at least one Open Records Act Request or Freedom Of Information Act request. Their record keeping system should report all obligations and all payments. They can (but won't want to) print it for you. But it probably doesn't do spreadsheet-like calculations. Don't do the spreadsheet for them- that's their job.

When you visit the support collection agency, you might want to leave your own spreadsheet in the car. They are supposed to have one of their own. If they can't show their own history of obligations and payments and a calculation of the amount they claim is due (you might have to accept an adding machine tape), try to make them admit to that on paper in their office. They will resist or refuse. You should bring someone along to in case you need a witness to the refusal. Ask to see the office manager, and if they refuse, document it.

Before court, practice this with a friend:

Before the hearing starts, ask the collection agency attorney for their Bar Number. If they don't have one, report that to the judge and ask the judge to send the unlicensed practitioner back into the audience behind the bar. And don't let the support collection agency witness take on the advocacy function either (presenting the case to the judge and making a demand for an order assessing an amount due). The witness answers questions; the witness does not argue the case.

In court, the collection agency attorney will make some inflated claim of some amount that you owe, most likely unsubstantiated by a calculation of obligations that have arisen and payments that have been applied.

A common trick is to fudge on the dates obligations arose and were paid (the collection agency can post payments so late that it looks like one payment was skipped entirely). Their record keeping system abets this form of fraud by not recording the serial number of the checks received -and they are all for the same amount, right?- so who can tell one from another? That way, even if you are current, they can extract one extra payment. That's how they make their numbers for their performance reports- extorting money not owed.

While the collection agency witness is on the stand, you can then ask the witness to add the obligations that have arisen and subtract the ones that were paid, going through your spreadsheet one line at a time. You can give the Maximus witness a blank spreadsheet and let them fill it in as you go. Make sure to ask the witness to tell you the net due after each entry. Let them use a calculator. If they haven't got a calculator, let them do it by hand. The more mistakes they make, the worse they will look to the judge.

Ask if they disagree with the amount they just calculated. If they disagree because their records do not show the payment for which you have a receipt, you can suggest to the judge that the collection agencies' inaccurate record keeping should invalidate their entire claim. Not just that one payment, the whole claim.

In spite of knowing the shoddy quality of child support record keeping, the judge will probably reject your suggestion, invalidating only the single record keeping error. You will have to proceed helping collection agency witness to build a spreadsheet that shows your calculations.

Watching the collection agency witness calculate net amounts on the witness stand coupled with their inability to refute your sheet should demonstrate to the judge that they didn't bring their own independent calculation to court.

After a few lines, you can ask the collection agency witness where their spreadsheet is. If they don't have one, you can ask the witness if the collection agency is wasting the court's time raising a claim they can't substantiate. In a rule-of-law jurisdiction, the judge could dismiss with prejudice at this point. Chances are that the judge will not so this. That is probably for the better if you can get a RECONCILEMENT (see below) incorporated into an order at the end of the proceeding.

If the collection agency witness doesn't have a spreadsheet that accurately shows the obligations and the payments (and you do), yours is probably the best (and maybe only) evidence available. The court is supposed to decide based on the best available evidence.

And in the name of judicial efficiency, you don't want to make the judge waste all the time it will take to help the collection agency build a spreadsheet that you can just hand to him.

When you enter it into evidence, the collection agency attorney can ask to look at the evidence. They do have an attorney at the hearing, don't they?

The collection agency attorney or the ultimate recipient of the funds (your ex-wife), i.e., the party or her attorney, BUT NOT THE COLLECTION AGENCY WITNESS, has a right to review newly offered evidence.

The advocate/attorney cannot (should not) testify and the witness cannot (or at least should not) argue the case. If there is confusion, ask the judge to clarify to you who is the Bar- member/advocate and who is the witness.

And remember, until your spreadsheet is offered into evidence it's just your trial preparation notes and not subject to review by opposing counsel. They are the plaintiff; it's their job to show that the amount is due. It's not your job to assist them in substantiating their claim, or even to show them how to substantiate it.

When you finish, you want the judge to place a finding in his order that as of that date you are a) current on your obligations, b) in arrears by some dollar amount (not months, etc, DOLLARS), or c) overpaid by some dollar amount. This is a RECONCILEMENT. CS extortionists fight reconcilement tooth and nail. A finding incorporated into a court order of the amount due as of a specific date (should) prevent them from trying again later to collect what wasn't owed and they thus couldn't collect today.

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