Alabama DHR and Your Credit

Below is a letter written by our friend Mark Davis to three Alabama legislators. The letter is long, but extremely interesting:

The Consumer Credit Reporting of Purported Child Support Arrears by DHR is not Codified by Alabama Legislature.

The DHR is acting outside the scope of Alabama law.

The Legislature never codified this issue.

It appears that the DHR is acting as a Legislative body without legal authority.

See Ala. Constitution 1901, Art. III, Section 43, “In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

The Alabama legislature codified every aspect of Federal Title IV-D mandates on child support enforcement except for the state reporting alleged arrearages to the credit reporting bureaus.

Title IV-D requires the states to first enact state law that supports Title IV-D. It does not create federal law for the states to enforce without authority from the state legislature.

This is shown by reviewing the Alabama State Plan filed with the federal government mandated by Title IV-D, 42 USC Section 654.

Example One: The State elected NOT to enact a law requiring the use of procedures for enforcement of child support orders with respect to a child of minor parents, if the custodial parent is receiving welfare assistance under Part A of Title IV-D, that shall be enforceable, jointly and severally, against the parents of the noncustodial minor parent of such child in accordance with 42 USC 466(a)(18). See “Exhibit 1” attached hereto showing the state plan did not approve the federal mandate because "legislation did not pass".

Example Two: The State has in effect laws requiring the use of procedures for authorizing withholding, or suspension or restriction of driver's licenses, professional and occupational licenses and recreational and sporting licenses in accordance with 42 USC 466(a)(16). However, at the time the State Plan was approved the Ala. Code did not include “Sporting licenses”. The State Plan notates this fact and said “Sporting licenses” will have to be added to the list of type of licenses and will require amending Alabama's license suspension act in the 1999 session. See “Exhibit 2”

Exhibit 3 shows the State Plan Alabama filed with the federal government on reporting arrearages. The Plan indicates Alabama has procedures in place. However, this is untrue.  This can be considered felony fraud upon the federal government. See attached President Obama’s Executive Orders 13519 and 13520.

The DHR Child Support Policy and Procedures Manual on Reporting Arrearages to the Credit Bureaus.

Chapter 15 (Exhibit 4) addresses consumer credit reporting and here is the DHR legal basis:

9.7.2 LEGAL BASIS

9.7.2.a State Code

Code of Alabama 1975, as amended, Section38-10-7 allows DHR to “take appropriate action under federal and State laws...to assure that the responsible person...owing an obligation of support provide support, including...civil or criminal actions...to enforce support obligations.”

9.7.2.b Federal Regulations

The Consumer Credit Reporting is governed by the Consumer Credit Protection Act, at 15 U.S.C. Section1680 et seq. 42 U.S.C. 666(a)(7) authorizes State IV-D child support agencies to report child support arrearages to credit bureaus. It requires that states have procedures to report periodically to consumer reporting agencies the name of any noncustodial parent who is delinquent in the payment of support and the amount of overdue support owed by such parent. Procedures must ensure that reporting takes place only after the noncustodial parent has been afforded all due process required under State law, including notice and a reasonable opportunity to contest the accuracy of the information. (Emphasis Added).

Here is the full version of Ala. Code, 1975, Section 38-10-7:

“Institution of actions for enforcement of child support obligations, etc.

"(a) Whenever anyone owing the obligation of support has failed to provide support, and application is made to the department for support services as may be provided pursuant to the requirements of Title IV-D or for aid, the department, and including the district attorney when providing services for the department, may take appropriate action under this article, or any other appropriate state and federal statutes, to assure that the responsible person or persons owing the obligation of support provide support, including, but not limited to, civil or criminal actions to determine parentage or to establish, modify, or enforce support obligations. All actions to determine parentage or to establish, modify, or enforce support obligations may be brought in either the juvenile court or district court or the circuit court or appropriate federal court, and all presently existing statutes are hereby amended to provide that the juvenile courts and district courts and the circuit courts shall have the concurrent jurisdiction of actions involving parentage, desertion, nonsupport, or support.

"(b) The court making the determination of parentage, or establishing, modifying, or enforcing support, unless otherwise provided by law, shall retain jurisdiction to enforce or modify prior orders of the court."

Id.

No where in Section 38-10-7 does it expressly mention credit reporting. 38-10-7 was written and codified in the Alabama Child Support Act of 1979.

Consumer credit reporting was not mandated in Title IV-D until 1997.

There is no way the DHR can presume the Legislature intended Section 38-10-7 to replace the Legislature’s refusal to enact the 1997 Title IV-D provisions of reporting alleged arrearages to credit reporting bureaus.

It is not within the providence of the Alabama DHR to act as a legislative body. Ala. Constitution 1901, Art. III, Section 43.

Also, it is not within the providence of the DHR to presume acquiescence by the Legislature due to inaction Legislative with DHR policy of reporting alleged child support arrearages.

The Alabama Supreme Court addressed this issue in October 2013 decision of Ex parte Christopher, (1120387) ---So.3d--- (2013).

In the Christopher Court it was argued that it was presumed the legislature acquiesced to the judicial branch because the legislature had not acted in 24 years of the judicial branch mandating the payment of college education of child beyond the age of majority by divorced parents.

Christopher quoting the Ala. Constitution 1901, Art. III, Section 43 said,

“In Alabama, legislation cannot originate with the judiciary."

“Instead, "The legislative power shall be vested in a legislature, which shall consist of a senate and a house of representatives." See Ala. Constitution, rt. IV, Section 44.

"No law shall be passed except by bill...." Ala. Constitution Art. IV, Section 61.

“And no bill shall become a law unless first referred to and acted upon by a standing committee of each house. Ala. Constitution Art. IV, Section 62.

“Additionally, no bill shall become a law unless approved by a recorded majority vote in each house. Ala. Constitution Art. IV, Section 63.

“Adoption of amendments also requires a recorded majority vote. Ala. Constitution Art. IV, Section 64.

“Finally, "Every bill which shall have passed both houses of the legislature ... shall be presented to the governor" for signature. Ala. Constitution Art. V, Section 125.”

The Christopher Court goes to say,

“Courts do not make law. No law can be enacted or amended apart from the constitutionally mandated procedure, known as bicameralism and presentment. (noting the "bicameralism and presentment requirements of Art. I" of the United States Constitution).

“Nowhere in the Alabama Constitution is provision made for the judiciary to initiate legislation that then automatically becomes law when not affirmatively vetoed by the legislature within a prescribed period. This presumed lawmaking authority of the judiciary has some resemblance to the provision for a bill to become a law by gubernatorial silence. But obviously the judiciary has no power to translate itself into the shoes of the legislature and then further to clothe the legislature with a veto authority over its unauthorized enactments.”

“Any act of the legislature that does not follow the procedures required by the Constitution is, "as a law, wholly void, a mere nullity, and imposes no legal obligation on any body.". Accordingly, the legislature cannot acquiesce to a lawmaking process devised by the judiciary ex cathedra that has no authorization in the Constitution." The power to legislate rests exclusively with the legislature ... [which] cannot delegate that power." Opinion of the Justices No. 145, 263 Ala. 153, 155, 81 So. 2d 697, 698-99 (1955) (some citations omitted)”).

The above holds true the DHR cannot create legislation. The DHR is acting without any legal authority on this issue.

It is federal criminal fraud – a felony - to provide false documentation to the Federal government for federal incentive funding.

I have always fully supported my only child out of love for her.

Since August 2013, the DHR is reporting inaccurate and false, and misleading child support arrearages on my consumer credit bureau reports. Although in June 2013 I timely requested a hearing with DHR on the issue.

The DHR notices indicate reporting will not take place until after a hearing has been held. A hearing was scheduled today, 02/03/14, but the state hearing officer from Montgomery failed to show up in Florence, Alabama.

The above is also a violation to the Federal Debt Collection Protection Act (FDCPA)

FDCPA 15 USC Section 1692(e) “prohibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt” as well as the use of “unfair or unconscionable means of collection.”

DHR is acting without authority granted it by the Legislature. Said Acts are harming vested liberty interest rights of thousands of Alabama parents which negatively impact children and society.

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If you've been treated unfairly by DHR, we urge you to fight back...




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