HCR Enforcement/Criminal Penalties: In my legal opinion, devastatingly EFFECTIVE
Posted by Land Shark in General Discussion
Fri Dec 25th 2009, 09:19 PM
www.democraticundergroun d.com________________________
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The hottest trend in anti-consumer anti-citizen legislation is using the criminal justice apparatus (and, in the case of HCR the IRS apparatus as well) as glorified collection agencies. In service of collecting routine civil debts such as bounced checks, sheriff's deputies and prosecutors around the country presently spend many times what such debts are worth to strong arm debtors with both threats and actual enforcement UP TO THE POINT where such debtor pays -- in which case the prosecution has totally served its purpose and the case is dropped.
This is precisely what HCR plans to do, both criminally and with the threat and REALITY of IRS tax liens: To wit:
(2) SPECIAL RULES.—Notwithstanding any other provision of law—
‘‘(A) WAIVER OF CRIMINAL PENALTIES.— In the case of any failure by a taxpayer to timely pay any penalty imposed by this section,such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—The Secretary shall not—
‘‘(i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section, or
‘‘(ii) levy on any such property with respect to such failure.
on edit: "failure to timely pay" is different than outright refusal to pay or abject nonpayment. If one were once late on a payment but is presently current, one can still accurately say they "failed to timely pay" the payment in question. If the provision above intended for such criminal and IRS penalties to NEVER EXIST for all forms of nonpayment, that would make the provisions spelling them out "surplusage" or wasted unnecessary words - a construction that courts are obliged to reject since it is presumed always, no matter how false it may be, that Congress knows what it's doing and is aware of all the law that it is acting upon. That may be a real-life fantasy but it is as solid a legal rule of construction as you can get....
In my legal opinion as a former consumer protection lawyer for about a dozen years, these tactics, while questionably legal at best, are nevertheless very effective collectors. I know somebody who's a small merchant who swears by their effectiveness (to which I add, mafia knee-capping is similarly effective and similarly "questionably legal."). The effective part of it is that it is not worthwhile for any given individual to contest such a case, given the cost not only of legal fees, but even just of posting a bond or considering the stress level of contemplating the effect on one's credit or assets of a mere paper lien being filed, and/or an arrest warrant being issued, much less the cost of an initial night in jail and posting the required bond to get out of jail.
You would think that getting sheriff's departments involved in the collection of every bounced check, (which they freely admit the majority of which are civil because they're accounting or communication errors between spouses (for example) and not intentional conduct necessary to prove criminal intent) would mean that as a practical matter the bad check enforcement practices here would be impractical. But then, you would be wrong. These practices continue on with thousands of form letters threatening arrest going out each year in every given jurisdiction that does this practice -- all to serve the few "key" merchants who are signed for the police collections program. One can say "I thought debtor's prisons were illegal, etc." but that hasn't and doesn't stop this process.
The "beauty" of these kinds of systems is that it isn't worth it for any given individual to press the issue very far, and few indeed do. Very few will pop for $250,000 in attorney's fees on a case worth a few thousand dollars or so.
Instead, what the provisions of this type really do is amount to a form of PRIORITY debt, which is a higher priority for nearly all people to pay than is their rent, mortgage, utilities or even food -- because most people understandably fear a night in jail (or more) plus the hassle of a tax defense or a criminal defense more than they fear paying a few grand or more to make it go away, as required by the provisions in the box above. Heck, even posting the bond will probably set you back that much or more.... Thus, only a few actual prosecutions are necessary after the mass form letters go out to ensure that basically EVERYONE pays.
In my opinion, a vast majority of people CAN "AFFORD" health care private insurance as subsidized because it's priority in terms of payment will be just about the highest priority of their lives -- at least after they get the threat letter.
Given my experience as a consumer protection lawyer, I called the bluff of local prosecutors and police after meeting with the police chief on a routine bounced check (the local bank had refused my deposit but didn't refuse electronic withdrawals after the out of state original bank of deposit closed my account without actual notice to me of their intent to do so). I informed them their activities as collection agencies for select local merchants violated a raft of state and federal consumer protection laws. They didn't care, and didn't have any procedure, they stated, for reconsidering their collection-mill course of action. Because it just so happened that the merchant in question owed me more than I owed them, I didn't pay the debt. They actually went ahead and arrested me at 11pm so I got to spend a night in jail before bond could be posted.
They ultimately DROPPED ALL CHARGES without me giving them a shred of my copious evidence and briefing on the illegality of the charges -- so long as I paid the EIGHTY DOLLARS or so -- the GRAND TOTAL of the full face amount of the check plus a $35 or so collection fee (which the sheriff got for the thousands of dollars in police and prosecutor time they spent on my case). It was a colossal waste of taxpayer funds -- IF THE PURPOSE of government is to serve the taxpayer.
But I do not think the purpose of government, any more, is to serve the taxpayer or citizen.
The Congress is poised to hand out a mandatory monopoly right and harness the entire federal criminal justice apparatus as well as the IRS apparatus as a mill to enforce collection of the monopoly fees to be paid private insurance corporations. The vast, lion's share majority of people will pay up in full before or shortly after they get the form letter threatening arrest.If ya'll have the same or more courage to stand up to these kinds of abuses that I did, I salute you.
But I do point out it's not worth it economically not to mention stress-wise for any given individual to fight provisions that set up mass collections of amounts less than 10,000 dollars or so. I avoided criminal charges, yes, and I earned a pyrrhic victory of a huge civil rights violations lawsuit which I probably will never pursue for reasons of time and energy, but the fact remains EVEN I PAID. Most of you will be less sure of yourselves legally, less able to represent yourself in court, perhaps somewhat less willing to stand on principle, and thus you'll pay -- just faster than I paid. But I, too, paid. The good news is that if they ever repeat this, they'll have a giant RICO lawsuit on their hands.
But what percentage has the will and the means to run this kind of gauntlet? That's the "beauty" of these kinds of collection provisions. They are OH SO FAR FROM "TOOTHLESS" and "UNENFORCEABLE."
That's the idea of a mandate with collection provisions like this: EVERYONE PAYS THE PIPER - and the Piper is the Insurance conglomerates of the USA.________________________
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Good job democrats. Serious, great job electing this criminal gang of fascist thugs under the moniker of Hope & Change.
