VIRGINIA: DCSE INTEREST CALCULATIONS INTENTIONALLY WRONG???

Hi folks! Important request for an Opinion about arrearage interest at
the end...please read.

Been off of the group for a while as Virginia's DCSE has been nipping
at my heels because I keep challenging an Order dating back to
1998...they slapped me with an Lien late last year.

On January 26, I removed the matter from the state courts to the
federal courts alleging state-sponsored constitutional violations and
faxed a notice of removal to DCSE's lying little bitch attorney in
Manassas -- the Court refused to accept a faxed transmission. She does
lie...she filed pleadings alleging I had made no payments for almost
two years when I had made 14 during that period and was actually $1400
ahead of the court's order...I was found in contempt of court anyone.

I was to have appeared as a defendant in a contempt hearing the
following week, but the filing in Federal Court stayed all state
proceedings, but they had the hearing anyhow...guess what? The Judge
issued a bench warrant for me for failing to appear. I was arrested on
February 7th as I was leaving our local court where I had filed a
lawsuit challenging the validity of DCSE's lien because it was based on
a void order. It cost me $1000 to get out of jail on bond. I am
awaiting the transcripts of the hearing to see whether the DCSE
attorney either asked for the capias or failed to inform the Court that
the matter had been removed a week before the hearing.

When I got home, I received a Certified Letter from DMV stating that
DCSE ordered by drivers license suspended (ordered on the date of the
hearing that was barred by federal law from taking place)...only under
Virginia law, DCSE was required to serve me by Sheriff or by Certified
Mail with a Notice of Intent...considering the bitch always serves me
with three sets of pleadings (Sheriff, Certified Mail and Regular
Mail), imagine how not surprised I was that I never received a Notice
of Intent.

To top it all off, I got yet another Motion for Rule to Show Cause by
the Manassas Office of the Division and, get this: The Motion was not
even signed by an attorney -- a major violation of Virginia law -- it
was signed by a ****ing Clerk...not even a valid motion and it's a
STATE FORM. Hearing's this Thursday at 2:00PM...Juvenile Court in
Manassas...love to meet anyone there.

Anyhow, people in Virginia with a child support arrearage, listen (or
read) up:

Aside from the validity of the court orders entered since this
jurisdiction received my transfer of the case, since 1997 when I first
began contact with DCSE about this arrearage (my ex hid my child from
me for over six years in violation of the same order DCSE was
enforcing)...

Virginia law apparently barred the application of interest to child
support arrearages until 63.1-267 of the Code of Virginia (now
63.2-1952 --
http://leg1.state.va.us/cgi-bin/legp...+cod+63.2-1952) became
law on July 1, 1995.

On about that date, my accrued arrearage was about $23,800, which prior
to 7/1/95 never accrued a dime of interest. On my next payment due
after that date, according to their records, they began charging me
..75% interest per month (9%/12 months)...

When we got into court in 1998, DCSE stated my accrued arrearage plus
interest equaled about $41,998 and the judge entered an order without
even blinking -- before she tried to put me in jail.

Anyhow, I'm finishing my degree now and am lucky enough to have Westlaw
and Lexis...and I'd poked around for about two months because it didn't
SOUND right that they were charging me interest on past due payments
before 7/1/95...

Friday night at about 3AM, I found it...a 1798 Virginia case which has
only been cited a total of about SIX TIMES since then (SO I THINK IT
MUST BE WELL UNDERSTOOD BY EVERYONE BUT DCSE), most recently in 1988.

The case states that when there's a change in the statutory interest
rate on judgments, it doesn't affect a judgment entered prior to the
effective date of the new rate. Thus, I believe the arrearage which
accrued under the 1988 Order which DCSE was operating under is not
subject to the application of interest -- EVER...Virginia's statutory
constuction is that unless there's specific wording for the retroactive
application of a statute, there's no retroactive application.

What does this mean time me? It means that even though we've paid about
$16,000 of child support since 1998 and my total owed hasn't even gone
down because of the interest, when the judge sees this, he's going to
take AT LEAST $25,000 off of my arrearage.

DCSE also illegally lowered my interest rate to 6% effective July 1 of
last year, which would apply to arrearages which accrued between June
16, 1998 and May of 2002 when my daughter turned 18...that interest
according to 200 years of Virginia caselaw must remain at 9% because
that was the rate when the payments became past due (and judgment by
operation of law).

The caselaw follows this paragraph.

Why would DCSE apply interest illegally? Because according to the
numbers from the Federal Office of Child Support Enforcement, the
interest on the outstanding arrearages in Virginia would likely total
FIFTEEN MILLION DOLLARS PER MONTH -- that's $15,000,000 per month. They
get, what, 2/3 of that money back in federal incentive payments when
they collect this?

Here's the caselaw from 1988:

Circuit Court of Virginia, Fairfax County.
Webb
v.
McCarthy, et al
AT LAW NO. 68492.
July 22, 1988.

*1 This matter came before the Court to determine the amount of
interest due Plaintiff on an award of punitive damages.
Plaintiff asserts that the rate of interest at the time of judgment
remains in effect notwithstanding subsequent legislative
changes in the judgment rate.

Lewis Hall Griffith, Judge.

On July 2, 1985 judgment was entered for the Plaintiff in the amount of
$45,103 in compensatory damages and $100,000 in
punitive damages for wrongful death arising out of an automobile
accident. In addition, interest on the judgment was ordered
to accrue beginning June 7, 1985. Plaintiff then moved for a
declaratory judgment against the Defendant's insurance company
to determine whether it was liable for the punitive damage amount. The
insurance company appealed the trial court's decision
that it was liable for the punitives. On June 10, 1988 the Supreme
Court of Virginia affirmed the trial court.

At the time the trial court rendered judgment, the rate of interest was
12%. Va. Code ' 6.1-330.10. On July 1, 1987, the
legislature enacted a new judgment rate of 8%. Va. Code ' 6.1-330.54. A
subsequent change in the statutory rate of interest
does not effect a prior judgment because interest is contractual in
nature and thus subject to the rate at the time the judgment
was entered. See, Brooke v. Roane & Co., 5 Va. (1 Call.) 205 (1798). To
hold otherwise would be to allow the Defendant the
benefit of a lower rate of interest after an unsuccessful appeal.
Further, the Defendant seeks to apply the current statutory rate to a
judgment obtained two years before the statute went into
effect. Such a retrospective application of a statute is not permitted
in the absence of clear legislative intent to the contrary.

Ferguson v. Ferguson, 169 Va. 77 (1937).

For the reasons stated above, interest on the punitive damage award is
to be calculated at a rate of 12% from June 7, 1985
until paid.

Mr. Phillips will please prepare an appropriate order and submit it to
Mr. Sabanegh for endorsement as to form.
13 Va. Cir. 219, 1988 WL 619293 (Va. Cir. Ct.)
END OF DOCUMENT

Apparently this is called "RETROSPECTIVE APPLICATION" of interest --
legal in some states, not in Virignia...Ironically, DCSE started adding
this interest without going back to court...and they are allowed to
issue an administrative child support order if a court-issued child
support order already exists -- at least that's how it is here in
Virginia.

I would be willing to bet that the APECS (their child support software
designed by Policy Studies, Inc. -- yes, that PSI) can't handle more
than ONE interest rate -- let alone potentially the three interest
rates some with arrearages here in Virginia may be subject to.

Anybody think this sounds like a decent class action case??? The
Indiana-based case was kicked here in Virginia, but I believe this case
has some legs -- not only because of the sheer number of NCPs who
likely have been OVERCHARGED interest, but because of the amount of
federal incentive dollars Virginia's likely received because of the
bogus interest calculation.

CHILDSUPPORTNEWS.COM is up...I'll be adding content to it this week to
get it rolling...some how, I don't think their attempt at jailing me
for contempt is going anywhere...though I do wish they might try so
that I can appeal their purge clause up to the Court of Appeals --
they'd likely impose a purge clause of $41000 -- the entire balance --
which is illegal in aobut every other state in the Country unless a
judge believes beyond a reasonable doubt that the contemnor presently
has the money to pay the purge clause.

Their punitive purge clauses designed to keep most dads in jail has
never gone up to the Court of Appeals in Virginia...which is why they
continue to violate the rights of dads at a wholesale level in Virginia.