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Ex-wife not required to pay attorney fees under FDCPA

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A woman does not have to pay the attorney fees for her ex-husband after she sought more than $135,000 in owed child support after he failed to pay for 16 years, the Indiana Court of Appeals ruled. The trial court ordered her to pay the fees under the Fair Debt Collection Practices Act.

Jill and Mark Finfrock divorced in Porter County in 1994. Mark Finfrock only paid child support for about seven months after the divorce because he lost his job.

Jill Finfrock didn’t attempt to collect on the owed support until 2011, when she used National Child Support, a child support-collection firm based in Ohio. By that time, the children were emancipated.

The exes agreed in December 2011 that Mark Finfrock owed $135,856.74, which was reduced to judgment. He would pay $280 each week to his ex-wife through an income withholding order.

Mark Finfrock has not missed a payment since, but Jill Finfrock sought a qualified domestic relations order to be attached to his 403(b) retirement account. The trial court initially signed the order, but later rejected Jill Finfrock’s request and ordered her to pay $1,645 in attorney fees to her ex-husband.

The attorney fee order was an error because the award was based on perceived violations of the FDCPA, the Court of Appeals decided in Jill Finfrock a/k/a Jill Bastone v. Mark Finfrock, 64A05-1209-DR-489.

“It is clear that an attorney who regularly engages in consumer debt collection activity, even when that activity consists of litigation, is a ‘debt collector’ as defined by the FDCPA,” Judge Paul Mathias wrote. “However, Mother appears to be correct that the FDCPA is not applicable to ‘debt’ that is the result of a child support arrearage, even if that arrearage has been reduced to a judgment.”

The judges affirmed the refusal by the trial court to issue a qualified domestic relations order attaching to Mark Finfrock’s retirement account. The parties agreed he would pay nearly half of his weekly income to erase the arrearage. In addition, it’s up to the discretion of the trial court whether his pension plan may be attached or garnished to satisfy the support arrearage.

The COA did not address Jill Finfrock’s claim on appeal that the court erred in ordering her ex-husband to pay his weekly payment to the Indiana State Central Collections Unit instead of National Child Support.

“The trial court did not actually alter Father’s income withholding order to direct that the payments go to INSCCU, and we need not consider whether the trial court erred in opining that Father’s income withholding order should be altered to comply with new federal rules,” Mathias wrote in remanding for further proceedings.

 

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  1. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  2. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  3. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  4. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  5. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

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