restitution for embezzlement

[melzz]

What is the name of your state? IN, state of occurence Texas

Four years ago in April my daughter was fired for embezzlement. It was deemed that the company had no grounds for criminal action as she did not confess, she was basically fired because she had strong evidence against her. Now she has received a letter from an Attorney for the Insurance company that has covered the Company's loss and they are demanding that she pay the amount she took in full within 30 days or face criminal action. This is now a civil matter as far as we know and we don't have the money to pay it in thirty days. She is not a minor and the amount is just under 25 thousand dollars. Is she being bullied by the insurance agency now? She was never tried for the offense and told the company washed it's hand of it.
Any advice on whether an attorney should be retained or not?

 

[seniorjudge]

What is the name of your state? IN, state of occurence Texas

Four years ago in April my daughter was fired for embezzlement. It was deemed that the company had no grounds for criminal action as she did not confess, she was basically fired because she had strong evidence against her. Now she has received a letter from an Attorney for the Insurance company that has covered the Company's loss and they are demanding that she pay the amount she took in full within 30 days or face criminal action. This is now a civil matter as far as we know and we don't have the money to pay it in thirty days. She is not a minor and the amount is just under 25 thousand dollars. Is she being bullied by the insurance agency now? She was never tried for the offense and told the company washed it's hand of it.
Any advice on whether an attorney should be retained or not?

In most states, a lawyer sending a demand letter with a threat of criminal action has committed a grossly unethical act. If you feel this is wrong, you should report that lawyer to the state bar of where he practices.

You also need to get your daughter a lawyer. Remember OJ? Just because she wasn't prosecuted criminally doesn't mean she can't have civil liability.

 

[melzz]

Follow up question

Okay then is it reasonable to expect to be able to negotiate the amount if it comes to that..say make an offer and see if they counter? Or is it generally expected that we will have to figure out a way to come up w/the entire amount? There is no doubt she committed the crime, but that's as far as it goes.

 

[JETX]

Okay then is it reasonable to expect to be able to negotiate the amount if it comes to that..say make an offer and see if they counter?

Everything is negotiable. However, I would be surprised if they were to negotiate much off of this.... as long as the SOL has not expired. Your own post says it would be very easy for them to prove their damages, so it would be relatively simple for them to get a judgment against her... for the full amount claimed. Why should they negotiate??

 

[JETX]

Okay then is it reasonable to expect to be able to negotiate the amount if it comes to that..say make an offer and see if they counter?

Everything is negotiable. However, I would be surprised if they were to negotiate much off of this.... as long as the SOL has not expired. Your own post says it would be very easy for them to prove their damages, so it would be relatively simple for them to get a judgment against her... for the full amount claimed. Why should they negotiate??

Something is confusing in your post though.... You said:

It was deemed that the company had no grounds for criminal action as she did not confess, she was basically fired because she had strong evidence against her.

If the evidence was that strong, why wasn't she prosecuted??

 

[melzz]

answer to your question Jetx

There were several people involved in this. The bigger players have amounts of hundreds of thousands and the only thing we were told was that the case had been thrown out of court because all of the evidence was circumstantial. In other words, not a soul confessed, they just took their lumps. You can't pay restitution if your behind bars not earning money may be another reason. It would be interesting to know what the statute of limitations is on this. The last day she ever took something was March 2001 and she got fired two years later!

 

[seniorjudge]

"...the only thing we were told was that the case had been thrown out of court because all of the evidence was circumstantial..."

Someone told you wrong; Scott Peterson was convicted on 100% circumstantial evidence.

 

[JETX]

Someone told you wrong; Scott Peterson was convicted on 100% circumstantial evidence.

Yep, that is what strikes me as unusual....
The poster says "she had strong evidence against her" and yet no criminal charges were brought???

 

[melzz]

civil suit filed

a civil suit has now been filed. if the accused lives in a different state and it is illegal to file admissions in that state, but not in the state of occurence which was Texas, where does the law fall? Would one retain a lawyer in the state they reside in or the state the lawsuit was filed in? Why would a suit be filed if the lawyer was already working with the insurance company attorney's to settle the issue?

 

[seniorjudge]

a civil suit has now been filed. if the accused lives in a different state and it is illegal to file admissions in that state, but not in the state of occurence which was Texas, where does the law fall? Would one retain a lawyer in the state they reside in or the state the lawsuit was filed in? Why would a suit be filed if the lawyer was already working with the insurance company attorney's to settle the issue?

Q: a civil suit has now been filed. if the accused lives in a different state and it is illegal to file admissions in that state, but not in the state of occurence which was Texas, where does the law fall?

A: I have no idea what you mean by "illegal to file admissions."


Q: Would one retain a lawyer in the state they reside in or the state the lawsuit was filed in?

A: Obviously, the state where the lawsuit is being defended. If I am being sued in FL and live in CA, why would I hire a CA attorney?


Q: Why would a suit be filed if the lawyer was already working with the insurance company attorney's to settle the issue?

A: Two reasons: "Working with" is totally irrelevant if there is no money paid for restitution and the plaintiffs want the lawsuit filed before the statute of limitations runs and thus bars the suit.

 

[melzz]

answers

Thanks seniorjudge, that is why I asked, I haven't lived in that state for several years now. if papers are being served in the state I live in, then I would only assume that I would need counsel here to ensure that and since there is a blurry line on just what the statute of limitations is, then it needed to be clarified.

 

[melzz]

SOL in TX??

Anyone know the statute of limitations in TX re: this post??

 

[JETX]

Anyone know the statute of limitations in TX re: this post??

Embezzlement, along with several other previous terminology, was consolidated into the Texas Penal Code under 'theft'.
§ 31.02. CONSOLIDATION OF THEFT OFFENSES. Theft as defined in Section 31.03 constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement[0], extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.

The normal SOL for theft would apply. Based on your statement that the amount involved is "just under 25 thousand dollars", this would be a felony of the third degree.

Per the Texas Code of Criminal Procedure, the SOL for theft is:
five years from the date of the commission of the offense for "theft, burglary, robbery".
Source: http://www.capitol.state.tx.us/statutes/docs/CR/content/htm/cr.001.00.000012.00.htm