• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

larceny by check - need advice

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

tardo

Junior Member
Im in MA. I have been criminally charged with larceny by check. I borrowed the money from a business associate, who wrote the checks to my landlord from his own company account, which I have no authorization over. He later stopped payment on them to save money for his business when he heard my business was going under. I did not write the checks, nor did I stop payment on them.

Can I be charged with this?
 


outonbail

Senior Member
I don't see how you could be charged with larceny by check. Maybe conspiricy to commit larceny by check???

What is the code or the actual charge filed against you?
 

tardo

Junior Member
larceny by check

the charge is two counts of larceny by check over $250! I have been arraigned abd pleaded not guilty. Im very nervous about this - as I did not commit any crime, yet still have to go through the proceedings.
 

tardo

Junior Member
larceny by check

yes, im sure. I couldnt pay my bills in a struggling new business. I borrowed thousands from grandparents and girlfriend for utilities, insurance, etc. I borrowed the back due rent from a colleague who owns his own business, and had done a lot of business with my company. He wrote the checks directly to my landlord. When they terminated my lease after I had complied with everything, I told my colleague I was going out of business.

He assumed he shouldnt waste the money - that it should be my debt, and stopped payment on his checks. I found out a month later when charged by summons. I have been vocal and willing to make restitution for the owed money, yet the charges were filed, so now the fact that I have to pay for an attorney and go through this litigation, and face CRIMINAL charges is insane.

How can I possibly be charged criminally for this??
 

outonbail

Senior Member
Is this charge being filed by the bad check branch of the district attorney's office?

Are you sure the check had a stop payment placed on it as opposed to a bounced check due to NSF or worse yet, was issued from a closed account?

Have you gone to the bank the checks were drawn from and asked for copies of the order to stop payment?

Was your friend who wrote the checks and subsequently issued the stop payment ever contacted and if so what was discussed between him and the DA?

Did you request or were you aware that your friend was going to place a stop payment on the checks?
Are you certain it was his checks that the DA is pressing charges over and not one from the business you closed?

I'm with snostar, there has got to be more....
 

tardo

Junior Member
larceny by check

There isnt more.

My colleague stopped payment on his checks and I had nothing to do with it.

I have nothing to gain by him saving money at my expense, and I did everything humanly possible to meet my expenses and keep my business open.

The landlord filed a criminal complaint, and the complaint was issued, now I have to face it.

My question is how can I be charged with a possible felony, when I did not write the checks, nor did I stop payment on them?

Stop payment means he stopped payment. If I meant bounced or NSF - thats what I would have said.

Is there advice present?
 

outonbail

Senior Member
No one can advise you without knowing exactly what law you are accused of violating. Have you been given a citation or some court generated paperwork which lists the violations?

Is the following section the one you have been charged with?

Chapter 266: Section 37 Fraudulent checks, etc.; drawing or uttering

Section 37. Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument, although no express representation is made in reference thereto, shall be guilty of attempted larceny, and if money or property or services are obtained thereby shall be guilty of larceny. As against the maker or drawer thereof, the making, drawing, uttering or delivery of such a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary, unless the maker or drawer shall have paid the holder thereof the amount due thereon, together with all costs and protest fees, within two days after receiving notice that such check, draft or order has not been paid by the drawee. The word ""credit'', as used herein, shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.
 

Kane

Member
I don't know why you were charged either, and with the others, I suspect something's missing.

The difference between a bad debt and theft has to do with intent. Bad checks are a sort of special case, in the sense that you're presumed to know what you have in your own account. Unpaid rent is a bad debt, not theft.

But if it was a bad check case, it ought to have been filed on the person who wrote the check. The only possibilities I can think of are that they're somehow proceeding on a theory that you tricked your collegue into writing the check (ex: promising to provide services at a time when you know your business was shutting down), or that it was a mistake.

Neither seems very likely.

Did you promise something to your friend, inexchange for the check?
 

tardo

Junior Member
larceny by check

First off, thanks for responding and attempting to help.

The charges are 266, 37.

There was no conspiracy, and Im telling you exactly what happened. I asked a colleague to borrow the money for my back rent. He submitted the checks to my landlord, on his company, signed by him, made out to my landlord.

He later stopped payment on them with the idea in his head that he should not pay the debt I owe if Im going out of business anyway.

It is precisely my obstacle here to explain to you, and to the courts, that I did not have any say in this stop payment, nor did I benefit. There was no intent to dodge payment - as I thought it WAS paid.

So my real question Im posting here - seriously - as simple as it gets -

I did not write the checks. I did not stop payment on the checks. I know that the landlord is going after me because Im the tenant - but the fact remains; HOW can I be tried as a CRIMINAL for something I did not do?

See/Hear my frustration?
 

Kane

Member
CHAPTER 266. CRIMES AGAINST PROPERTY

Chapter 266: Section 37 Fraudulent checks, etc.; drawing or uttering

Section 37. Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument, although no express representation is made in reference thereto, shall be guilty of attempted larceny, and if money or property or services are obtained thereby shall be guilty of larceny. As against the maker or drawer thereof, the making, drawing, uttering or delivery of such a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary, unless the maker or drawer shall have paid the holder thereof the amount due thereon, together with all costs and protest fees, within two days after receiving notice that such check, draft or order has not been paid by the drawee. The word ""credit'', as used herein, shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order.
I notice this section applies to someone who "delivers" the check, as well as the person who drafts it.

However, it goes on to require, "knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument."

Further, the presumption applies only to the maker of the check.

In other words, in order to convict you under this section, they'd have to prove at the time you "delivered" the check you knew it would not be honored.

Absent some pretty unlikely evidence (even if you knew your friend was going to stop payment, that doesn't appear to be enough) they're not going to be able to prove that element.

In other words, you're not guilty, and they're not going to be able to prove you are.

As to why you were charged, I couldn't say. Perhaps somebody responsible for reviewing the charge didn't understand the law (or the facts), or perhaps there's more to the story than you know.

In either case, the remedy is the same. You need to take the case to a lawyer. You might take the relevant documents to the prosecutor, first. But you mentioned it was a felony. In a felony case I wouldn't recomend it.
 

outonbail

Senior Member
Why did your friend make out more than one check? This friend or business associate, was he a customer who frequently wrote you checks for materials or services? Did you have any written agreement for the terms of your paying him this money back? Had you ever borrowed money from him prior to this situation and used his check to pay your rent? Have you ever paid your landlord with someone else’s check prior to this incident?

It doesn't make sense that your friend/business associate would write several checks if he was lending you money. I assume he may have written one for each month you were in arrears for. However, in business, these type of situations are usually done on more of a formal basis. I would expect the arrangement would have had you receiving one check for the total amount borrowed, which would be secured by some sort of promissory note or written contract with the terms for paying the loan back. You would then deposit the check in your business account and write the check to your landlord from the same. You are the one who must be under a written lease or rental agreement with your landlord, not your lender.

I'm not doubting your rendition of what transpired, simply saying I find it unusual for business owners to conduct business in such an open ended manner. The lender must have had some reservation for him to jump right on placing a stop payment on the checks. Was there any note inscribed on the checks which would state the purpose for writing them?

Have you ever before, written a check to your landlord which the bank did not honor?
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top