Bad Checks - take my case to the DA?

[legal678]

California

Over 2 years ago I met a client whom eventually became what I considered to be a friend (FYI, this gentleman has served several tours in the ARMY and holds the rank of LT Colonel –from what he tells me). In November of 2009 he approached me to inquire if could help him by issuing a credit under his name. At that time we had been working on a business venture and his bad credit made it difficult for him to pay for travel business expensed that he anticipated would take place as our program took off. I issued the card under a direct mutual agreement that it only be used for business expenses and that I would monitor his charges. I do not have any agreements in writing.

His performance in paying the bills was fine until May’s 2009 bill came ($7058) and he asked if he could hold back payment for 2 weeks until he got some money that he was expecting. The money he was expecting was promised by his partner out of Boston whom was working with him on a new business venture. (I was brought in by the friend to help him in this new business venture. Their interest was to eventually function as their COO). I was confronted by the friend and his partner to sign off on a credit line for the business and I would be compensated with shares of the business, I declined. When I declined to participate in this, I had a direct conversation with the friend and told him he could not utilize the American Express to finance any of the business. He agreed.

Two weeks passed and the money had not arrived. I spoke to him on a daily basis and his partner kept promising him he was raising money that he would send him. I kept an eye on the charges made to the card and the friend began to charge expenses related to the business venture and more personal expenses. I asked him to please keep it under control and that I needed to pay the bill.

On June 1st 2009, I confronted him about another charge that he had made on the card that appeared to be a personal tax payment. He stated that the money was coming in and would have the current amount plus the past due amount all in a lump sum for me. He gave me a check for the June bill for over $19,000 dollars and told me I could cash it shortly.

I also began to question more of the charges and soon realized that some of the charges had originated out of Boston. I asked the friend if he had given my card to his partner to use and he stated that he had given the card to him once to pay for a rental card. I advised him to immediately have his partner stop using the card. He stated he had spoken to his partner and that he would not use the card. He also stated he had not given the partner authority to use my card. (At a later date as I examined these charges in more detailed I came to realize the partner had charged his expenses to his son’s wedding in California on the card as well as gold supplies and other items).

During this time he had written a few checks that bounced for money he had promised me for helping him during his initial startup of the company. (3 checks bounced $500, $1500 & $2000). He also gave other people I know bad checks as well as running checks from a payroll provider without depositing the money into the account.

The partner continued to use the card and I called AMX and reported it lost so that my friend and his partner would not have access to it. My friend continued to be adamant that the money was coming and the delays were attributed to small issues with his partner and stocks there were selling. I realized too late that no money was coming and he had rung up another $3500 dollars on the AMX on reoccurring charges he had set up on the card.

Around June 19th the friend seemed very desperate and had come to his own conclusion that his partner would not be sending him money. Whether the partner was ever sending him money or not is disputable, but the friend was very nervous and anxious. After this date he began collect on debt that was owned to him by clients and his friends. I soon realized that he was not giving me any of the money he was raising. Since the original default in payment he had given me $900 dollars and I am aware through his statements that he had raised around $10,000.

A friend of mine introduced me to detective whom I told my story to. He advised me to try and see if any money were left in the accounts which the check had been issued and might be able to get some of my money back. On 8/18/09 I took the 2 checks he to the bank to cash and was notified that both accounts had been closed. Now I have a total of 5 bad checks (3 that bounced, 2 that the bank notified the account had been closed= approx $30,000).

The detective advised me to outline my story and take the checks to the local DA’s office. I was advised that the bad checks were the best way to go after him and if he wasn’t willing to pay me back my money. I’ve learned from a source that he has done this before (ran debt up and would not pay) and it appears he has other legal issues (lawsuit, possible tax issues, debt from everywhere). I see no value in pursuing a civil suit, I win and I have noting to attach. The friend has also mentioned filing for bankruptcy.

Unfortunately deep inside I thought he might still be my friend and I approached and told that he needed to pay me my money or I proceed with taking this to the DA’s office. On 8-26-09 I met with the friend and he gave me a proposal that his partner would pay me back the total amount due to me in installments of $3000 per month. The proposal only had his partner’s name on it and the friend would not sign it. The proposal to me appeared to be an attempt to shift responsibility from my friend to his partner in Boston and create a legal loophole. If they defaulted I would have to go after his partner in Boston which would be a nightmare. I advised him the friend that he would have to sign a Stipulated Judgment and he said he would never do this.

During the meeting he also said his attorney thought my tactics were extortion and I should think about this. I don’t want to play games with this guy and would like to proceed with taking what I have to the DA’s office and would like advice on how to proceed with this.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

[CdwJava]

The program run by DA's offices for bad check restitution tend to have very limited eligibility requirements, and I do not think your situation is covered. Here is one set of criteria from L.A. County:

ELIGIBILITY

Any person who receives a bad check is eligible to participate in the program if the following conditions are met:
* It was received in Los Angeles County, deposited in a bank in exchange for goods or services, and presumed good at the time of acceptance. There are no minimum restrictions based on dollar amount.
* A courtesy notice was sent to the check writer allowing 10 days to cover the check.
* It was submitted to the program within 120 days from the date on the check.
* A photo identification such as drivers license, military I.D., or state identification card was recorded at the time of the transaction.

INELIGIBLE BAD CHECKS

* It is post-dated.
* Both parties knew there were insufficient funds at the time of transaction.
* It is an out-of-state, two party, rent, government, or payroll check.
* The identity of the check writer is unknown.
* No amount, date, or signature on the check.
* If not processed through your bank.
* The check involves an extension of credit or payment on an account.

If you believe there has been intentional fraud going on, you need to speak with the police, first.

- Carl

[legal678]

Carl,

Thank you and unfortunately for my part you are dead on. I took my case to the local Sheriffs department, they don't believe the DA will pursue but filed a report.

Based on my outline are there any Civil Torts that I can base a suit on them for? Appreciate your help.

Jesse

[CdwJava]

I am sure there are several grounds you might be able to sue under. However, civil torts are not my area of specialization, so you might consider a consultation with a local attorney who can give you some specific direction.

Good luck.

- Carl