Creditor has filed Criminal complaint- HELP!

[semantic]

What is the name of your state?What is the name of your state?CA

We had our first 341 hearing last week. Our second 341 hearing is tomorrow ( had to amend schedule C).

Today I received a letter from the trial court in another state where the creditor resides; the creditor has filed a criminal complaint of LARCENY OVER $250 against me. I am required to attend this on Dec. 14; I can't go, this is on the other side of the country! I filed bk because I could not pay these people - are they allowed to file a larceny complaint against me? Shouldn't they file an adversarial motion instead?

How do I handle this? Doesn't the fed bk law protect me against these kind of motions? I filed on oct. 14. Since this is now filed in a trial court, a paper exists, I can't go, I don't even know if this is legal (doesn't seem to be), but who should I contact?

No other papers of adversarial motion have been filed by any creditors (including the one who filed a larcency suit against me) in my case, I checked on PACER too, nothing there.

What the heck should I do?

 

[JETX]

are they allowed to file a larceny complaint against me?

Absolutely!! Criminal charges are NOT protected by your bankruptcy filing.

How do I handle this?

You 'handle' it by showing up on the date and time ordered. I suggest you get a GOOD defense attorney as larceny is NOT a charge to be dealt with on your own. If you don't show up, a warrant will be issued for your arrest.

 

[badd2323]

What did you do that could construed as Larceny?

 

[semantic]

It's not what I did, it's what one of my former employees did. I closed up business back in March of 2005. I closed my bank account on March 4. One of my employees, during the closing, had stolen one of my bank account checks, wrote out a check for $2500 to himself, signed someone elses name on it as the authorized signor (totally fiction), and went to a check cashing/liquor store place (this after the bank account was closed) - well I don't know why they cashed it, but they did.

I was moving during this time, so didn't get the info about this until 3 months after it actually happened. By this time, the guy that owned the check cashing place had filed a court case, got a judgment against me and my wife. The bank account was in the business name, my wife was the sole signer on the account, yet the judgment was on both of us personally. So, due to our business debts, we included this judgment in the bankruptcy. The 'creditor' as is listed the bk documents, is the check cashing company, plus a collection agency he hired.

The 'larceny complaint' he filed was as a private citizen, against me personally, not my wife (good thing she's already pretty...mad).

So, first of all, I didn't own the account. Second, some fictional name was on the check as the authorized signer. Third, the bank account was closed when the check was actually cashed. Fourth, the judgment was against me and my wife, not the business, which was the name on the check (how this guy got my name, my wifes, and our personal address is rather fishy). Fifth, this larceny complaint is filed not under the guys business name, but in his own personal name, as a personal criminal complaint against me.

This person received the creditor copy of the bk filing, then turned around and instead of filing an adversary motion, decided to file a criminal complaint, in a state that is 3000 miles away from me, in his own name - which, of course, his own personal name is not on the creditor matrix, just his business which cashed the check to begin with.

Where is the employee who stole the check to begin with and why didn't this person go after him? Good questions.

That's my 'larceny' story. Now, do I really need a 'good defense lawyer' and 'show up for the hearing'? Can I hire a lawyer to stand in for me? Jesus, I don't have any money now, what is the purpose of getting me to go back to the state and telling everything I've just put in this post? Are these people trying to have me arrested from the initial judgment? Are there reciprocity laws between states?

As regards bk laws and protection, what is to stop any of my creditors from filing criminal complaints against me, which, are from around the country? Theoretically, how would I show up to all these hearings?

Larceny sounds like big bad stuff, like stealing car or something - I didn't do that - some craphead cornered me and is continuing to do so. I'm trying to make a fresh start, again, what's to stop creditors from all filing similar complaints?

 

[JETX]

Okay, LOTS of problems here......

It's not what I did, it's what one of my former employees did. I closed up business back in March of 2005. I closed my bank account on March 4.

You make reference to closing "a business"... but don't tell us what form this business was in. Was it a corporation?? If so, then you shouldn't be held personally liable for its debts. However, if it was pretty much any other form, you are likely liable.

2) Your failure to make good on the check opens you up to both civil and criminal liabilities.
The fact is, from your post, it sounds like the creditor (check cashing company) could make a good case for this debt being EXEMPT from your bankruptcy discharge under 11 USC 523.
Any criminal aspects would NOT be exempt or discharged by the bankruptcy discharge.

One of my employees, during the closing, had stolen one of my bank account checks, wrote out a check for $2500 to himself, signed someone elses name on it as the authorized signor (totally fiction), and went to a check cashing/liquor store place (this after the bank account was closed) - well I don't know why they cashed it, but they did.

And YOU are liable for that check. As for the civil liability, you have a case against the employee for your damages.
As for the criminal, of course you filed a stolen check complaint with the police, right??

I was moving during this time, so didn't get the info about this until 3 months after it actually happened. By this time, the guy that owned the check cashing place had filed a court case, got a judgment against me and my wife. The bank account was in the business name, my wife was the sole signer on the account, yet the judgment was on both of us personally.

Again, falls as to the form of business... and your being in a community property state.

So, due to our business debts, we included this judgment in the bankruptcy. The 'creditor' as is listed the bk documents, is the check cashing company, plus a collection agency he hired.

From this, it would appear that your business was a proprietorship. If so, then you would PERSONALLY be liable for all the debts of the business. And though the debt may be discharged, the criminal is a separate matter that remains.

The 'larceny complaint' he filed was as a private citizen, against me personally, not my wife (good thing she's already pretty...mad).

That is because criminal acts aren't 'community property'.

So, first of all, I didn't own the account.

Why not?? If it was a proprietorship, and you owned the business, you 'owned' the account.

Second, some fictional name was on the check as the authorized signer. Third, the bank account was closed when the check was actually cashed.

Neither of those are relevant.. as the check was NOT cashed!! That is why the payee (check cashing company) came after you... to make the check 'good'.

Fourth, the judgment was against me and my wife, not the business, which was the name on the check (how this guy got my name, my wifes, and our personal address is rather fishy).

Very common.... and correct, if a proprietorship.

Fifth, this larceny complaint is filed not under the guys business name, but in his own personal name, as a personal criminal complaint against me.

Not relevant. Again, goes to the form of business of the check cashing company.

This person received the creditor copy of the bk filing, then turned around and instead of filing an adversary motion, decided to file a criminal complaint, in a state that is 3000 miles away from me, in his own name - which, of course, his own personal name is not on the creditor matrix, just his business which cashed the check to begin with.

Not relevant.

Where is the employee who stole the check to begin with and why didn't this person go after him? Good questions.

Yep.... for YOU to answer. The onus is on YOU to pursue those questions... not the merchant.

Now, do I really need a 'good defense lawyer' and 'show up for the hearing'?

Absolutely!!

Can I hire a lawyer to stand in for me?

To face the criminal charges?? No. You have to appear.

Jesus, I don't have any money now, what is the purpose of getting me to go back to the state and telling everything I've just put in this post?

Because if you don't, an FTA (Failure to Appear) warrant will be issued against you.

Are these people trying to have me arrested from the initial judgment?

Nope. They have charged you with a CRIME!!!

Are there reciprocity laws between states?

What do you mean??

As regards bk laws and protection, what is to stop any of my creditors from filing criminal complaints against me, which, are from around the country?

Simple. The fact that you (presumably) have not committed a criminal act.

Theoretically, how would I show up to all these hearings?

Not applicable.

Larceny sounds like big bad stuff, like stealing car or something - I didn't do that - some craphead cornered me and is continuing to do so.

Larceny IS serious. The degree of seriousness depends on the laws of the state where you have been charged (your post isn't clear as to WHERE the charges were filed... only that you are apparently in CA now).

 

[SkankCheese]

Yikes.....

So what would happen- he'd have to pay the debt, then go after the person who stole the check to be paid back?


Is it different with a business as opposed to a private check? B/c I know as a private citizen (or whatever) I wouldn't be held liable if someone stole my checks and started writting them all over town.

 

[JETX]

So what would happen- he's have to pay the debt, then go after the person who stole the check to be paid back?

Yep. This could likely have been resolved fairly simply if it hadn't been ignored. The OP would simply have filed a stolen check complaint with the PD and then filed a fraud/theft affidavit with the merchant. No criminal charge. No personal liability for the check.

Is it different with a business as opposed to a private check?

People seem to keep 'forgetting' that there are several business forms. If a corporation... yes. The corporation (not personal) would have been liable for the loss.

B/c I know as a private citizen ( or whatever) I wouldn't be held liable if someone stole my checks and started writting them all over town.

Your 'knowledge' is not correct.
The fact is.... you may be held liable for the forgery if you do not notify the back in a timely manner that a check was lost or stolen, or if you do not monitor your account statements and promptly report an unauthorized transaction.

From the FDIC:
State laws govern whether you'd be held responsible if a lost or stolen check were used in a forgery. In most cases you probably won't be held liable for losses. However, bank customers generally are responsible for paying "reasonable" attention to their accounts and for protecting them against misuse. "A bank may refuse to reimburse you for a forged check if it believes you were negligent," says FDIC attorney Mark Mellon. "Negligence may include failing to safeguard your checks, filling them out in a way that would be easy to alter, or not notifying the bank about a loss in a timely manner." Among the ways to protect yourself: Look at your bank statement within a month of receiving it and immediately notify the bank of any suspicious or unauthorized transactions.
http://www.fdic.gov/consumers/consumer/news/cnfall97/liability.html

For information, go to: http://www.bankersonline.com/articles/bhv13n11/bhv13n11a21.html

 

[HomeGuru]

great job JETX.

 

[SkankCheese]

Yep. This could likely have been resolved fairly simply if it hadn't been ignored. The OP would simply have filed a stolen check complaint with the PD and then filed a fraud/theft affidavit with the merchant. No criminal charge. No personal liability for the check.


People seem to keep 'forgetting' that there are several business forms. If a corporation... yes. The corporation (not personal) would have been liable for the loss.


Your 'knowledge' is not correct.
The fact is.... you may be held liable for the forgery if you do not notify the back in a timely manner that a check was lost or stolen, or if you do not monitor your account statements and promptly report an unauthorized transaction.

From the FDIC:
State laws govern whether you'd be held responsible if a lost or stolen check were used in a forgery. In most cases you probably won't be held liable for losses. However, bank customers generally are responsible for paying "reasonable" attention to their accounts and for protecting them against misuse. "A bank may refuse to reimburse you for a forged check if it believes you were negligent," says FDIC attorney Mark Mellon. "Negligence may include failing to safeguard your checks, filling them out in a way that would be easy to alter, or not notifying the bank about a loss in a timely manner." Among the ways to protect yourself: Look at your bank statement within a month of receiving it and immediately notify the bank of any suspicious or unauthorized transactions.
http://www.fdic.gov/consumers/consumer/news/cnfall97/liability.html

For information, go to: http://www.bankersonline.com/articles/bhv13n11/bhv13n11a21.html

Gotcha. I guess I would have gone to the bank straight away and asked them what the eff was up.

 

[semantic]

Dear JETX, you are awesome.

The state of 'offense' is Massachusetts, I currently live in California.

The form of the business was a corporation. The corporation was 'owned' soley by my wife; her name was the only name to appear on corporation papers and the business bank account. This corporation was legally dissolved in the state of Massachusetts at the same time the bank account was closed.

Yes, where is the former employee? I don't know. Now, I don't have the resources to pursue him.

The judgment was against me and my wife.

The criminal complaint of larceny is against me, solely.

We had our second 341 hearing today, and still no adversary proceedings; I do understand about the window available to creditors to file a motion - but I wonder why the check cashing business didn't pursue that avenue first.

The bk is a personal joint filing, no corporation bk filings involved in this. So, while the check was a business check that was legally dissolved in Mass.,we listed the check cashing business as a creditor because the judgment was against us personally.

Yes, we have egg all over our faces for not tracking the checks. We thought they had all been shredded. Our very big mistake.

Now, I thought, in a criminal complaint, the burden of proof was on the plaintiff, not the defendant. Am I wrong here? What can this person prove? He filed a personal criminal complaint, my neighbor could do the same thing, or anyone. He can show that he honored a check for a corporation that was closed, that is dissolved. We can say, we didn't know the check was missing, etc, we're dumb....etc, which is basically the truth.

When I said 'reciprocity' I meant this: if I don't show up and a FTA warrent is issued, what exactly does that mean? If I get pulled over for speeding, am I going to be arrested, or if I try to open a bank account, or anything with my name on it, post office box, etc., will California 'reciprocate' with this FTA out of Massachusetts, and arrest me?

Basically, what if I don't do anything? Can I at least file a motion for a later court date from here in California, so I can save up some money to fly back east? Will the magistrate even care that this arises out of bankruptcy filing (the mag. in Mass?).

 

[RedemptionMan]

JETx is right about the corporation -- Corporation C status would have put all the liabilty on your business and not yourself.....

 

[semantic]

Okay, so to clarify this issue, it actually was not a c corp, but an s corp.

Since the s corp is dissolved, what can this person do in terms of the criminal complaint of larcency against me personally? Wouldn't he at least have had to file the complaint against the corp (even though dissolved?).

The judgment was entered during our two month long move (not against the business, but against me and my wife) - I had no idea a check was missing, had been honored by this merchant, nothing. Since I didn't expect a problem, I wasn't looking for one. All business mail piled up at a mail forwarding facility, at which point I received all this info. Too late to file a stolen check complaint, and the bank never tried to call me, they did have my correct phone info.

I have a trial date for Dec. 14, next week! Again, the business and the business bank account was for an s corp. My name, not the business name, is on the criminal complaint. The criminal complaint is filed by the individual who owns the check cashing company, not filed by the company itself. A judgment exists against me and my wife by the check cashing company, which we listed in our bk filing. I have a copy of the check, signed by God knows who. Now, how do I respond, in light of the information that jetx and others have given?

I can't afford a plane ticket, I don't know what the implications are for a FTA warrant out of Massachusetts for me, now living in California. To 'show up' and 'hire a good defense attorney' is wonderful advice - but since the liklihood of that happening is around .001% right now, WHAT is the BEST way to proceed.

 

[semantic]

Can I postpone this hearing? Is this something the court clerk in Mass. can facilitate?

I understand now that the corporation is liable for the loss, but the hearing is a personal criminal complaint; given that, doesn't someone (me?my attorney?) have to show up to say 'this is a corporate liability, not a personal one?'

Even if I didn't show up, wouldn't the magistrate look at the check (business corporation name account), look at the complaint, and say 'you can't do this?'

No one gives a rats behind that I can't afford to fly back to Mass right now; but this must be addressed - I don't want a warrant for arrest for this matter out on me - what to do?

 

[JETX]

Bottom line.... this is NOT a game. There is clearly far more to this story than you are telling... or possibly know.

You can sit here and debate your concerns all day long on this forum.... and it will do absolutely nothing. From purely your post, it sounds like the criminal charge against you may not be appropriate... but WE can't do anything about that for you. We are a legal ADVICE site.... and our comments, support, advice, etc. will NOT change your current situation. You need to get a LOCAL (California) attorney to try to resolve this matter. If you do not have one, get one.... NOW!!