- Extrinsic fraud
Extrinsic fraud is
fraudthat "induces one not to present a case in court or deprives one of the opportunity to be heard [or] is not involved in the actual issues ...." [ [http://research.lawyers.com/glossary/extrinsic-fraud.html Lawyers.com glossary] . Retrieved September 15, 2008.] [See also [http://thesaurus.infoplease.com/extrinsic+fraud InfoPlease website] and [http://www.lexic.us/definition-of/extrinsic_fraud Lexic.us website] . Retrieved September 15, 2008.] It can involve fraud on the court, but is not necessarily the same.
More broadly, it is defined as:
Extrinsic fraud does not mean merely lying or
perjury, nor misrepresentations, nor intrinsic fraud, nor "to matters that could have been raised during the divorce proceeding.""Ellett v. Ellett", No. 0824-00-2, Virginia, (Cir. Ct. Richmond City 2001), with cases cited therein, found at [http://www.courts.state.va.us/opinions/opncavtx/0824002.txt Virginia state courts website] . Retrieved September 15, 2008.] It must involve "collateral ... circumstances" such as:
# "bribery of a judge or juror,"
# "fabrication of evidence by an attorney,"
# "preventing another party's witness from appearing,"
# "intentionally failing to join a necessary party," or
# "misleading another party into thinking a continuance had been granted...."
Probably the most common examples of where extrinsic fraud are claimed are in
family lawand domestic relationscases, due to the emotions and high stakes involved. [http://victimsoflaw.net/FamilyLawArticles1.htm Victims of Law website] . Retrieved September 15, 2008.]
divorcecase, a separation agreement was the allegedly the subject of extrinsic fraud, but the court held that the evidencewas not sufficient to support the claim. In another divorce case, the deadline to file a motion, to modify the decree based on such fraud, had passed. ["In re Marriage of Miller," 902 P.2d 1019 (Mont.1995), found at [http://www.divorcesource.com/research/edj/fraud/96jan9.shtml divorcesource.com website] . Retrieved September 15, 2008.] Paternitycases are sometimes the subject of extrinsic fraud; the classic case is when a man is encouraged to sign an acknowledgementthat he is the father of a newborn baby, thus giving up his right to contest the matter in a filiationaction. [http://www.deltabravo.net/custody/paternityfraud.php Delta Bravo website] , and cases cited therein. Retrieved September 15, 2008.] In "Love v. Love", the Nevada Supreme Courtruled that extrinsic fraud had led the putative father to sign an admission against his interest, thus allowing the court to grant equitable reliefto undo the fraud. ["Love v. Love", 114 Nev. 572, 959 P.2d 523 (1998).] It also may occur when a man fails to appear in court when a paternity suit is filed against him, thus resulting in a default judgmentdue to the fraud by his " paramour". [Denise G. Callahan, "Insufficient evidence of extrinsic fraud leads to reversal in W." Daily Record and the Kansas City Daily News-Press, October 7, 2005, found at [http://findarticles.com/p/articles/mi_qn4181/is_20051007/ai_n15671746 Find Articles website] . "In the best interest of a child, the state of Missouri defended a mother who fooled a man into thinking he had fathered a son. In "State of Missouri ex rel. Misty Lowry v. Richard Carter", the Department of Social Services, Family Support Division appealed Jackson County Judge Sandra Carol Midkiff's ruling that set aside a 1993 default paternity judgment against Carter. The Western District Court of Appeals sided with the state." Retrieved September 15, 2008.]
In such cases, there is a high burden of proof (typically
moral certaintyor beyond a reasonable doubt) of the petitionerto prove the intrinsic fraud, because of the state's interest "in the best interests of the child" to ensure that every child has a father. That is called paternity by estoppel, in which the putative father is actually prevented from proving he is "not" the father due to the high standard of evidence necessary as a matter of law.
It happens in
real estate, such as when a lenderforces a homeowner to lose his or her real propertyin a foreclosuredue to the fraud. ["What can be done about grave extrinsic fraud/unfairness by refinance lender which forced homeowner to lose home to trustee sale?", found at [http://www.avvo.com/legal-answers/what-can-be-done-about-grave-extrinsic-fraud-unfai-1034.html AVVO website] . Retrieved September 15, 2008.]
A lawyer who intentionally keeps information from his client about an upcoming
hearingor trialcould be held responsible for extrinsic fraud, as well as being subject to disciplinarty action and a legal malpracticelawsuit. [See [http://personal-injury-law.justanswer.com/questions/1amlc-extrinsic-fraud JustAnswers.com website] and [http://www.thelaw.com/forums/showthread.php?t=23429 The Law.com] . Retrieved September 15, 2008.] [ [http://law.mongabay.com/news/Extrinsic_Fraud.html articles on MongaBay.com] . Retrieved September 15, 2008.]
It is at least theoretically possible for a court to enjoin a criminal proceeding, but unlikely. ["Equity Jurisdiction: Enjoining Execution of Criminal Judgment: Extrinsic and Intrinsic Fraud", California Law Review, Vol. 11, No. 4 (May, 1923), pp. 279-282, found at [http://www.jstor.org/pss/3474313 JSTOR website] . Retrieved September 15, 2008.] A "
writ of habeas corpus" or "writ of error coram nobis" may be possible as well.
An activist in
Berkeley, Californiasued the University of Californiaover its long-term plan, for alleged extrinsic fraud. [Richard Brenneman, "Activist Files Motion Calling UC Deal ‘Extrinsic Fraud’", " Berkeley Daily Planet", June 28, 2005, found at [http://www.berkeleydailyplanet.com/issue/2005-06-28/article/21705?headline=Activist-Files-Motion-Calling-UC-Deal-Extrinsic-Fraud-By-RICHARD-BRENNEMAN Berkeley Daily Planet website] . Retrieved September 15, 2008.]
* [http://www.lawkt.com/files/Extrinsic_Fraud.html Articles on Extrinsic fraud on LawKT.com]
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