A neighbor and friend of nearly 20 years, who is now 90 years old, willingly offered to, and did, co-sign a student for me upon hearing my circumstances that required a co-signer. Her family is very upset. They called the police, and long story short, I have been charged with Larceny 1. The loan is in good standing, there are a number of things that can be done both by the lender and the borrower to avoid default. There was no intent to defraud or place at risk the co-signer. Is there any validity to the Larceny 1 charge?
State/Country relating to question: Connecticut
Spoke to a lawyer who believes that I have a strong case based on lack of intent and that the whole matter is a big misunderstanding. I have also applied for a loan consolidation that would remove the endorser, at the request of their family, and thus eliminate any risk to the co-signer, which was minimal at worst. I have an upcoming court date... What is likely to happen?
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I'm sorry to hear that. When did he co-sign the loan? And is he willing to testify on your behalf?
Back in November 2011. He would testify, but is now considered to suffer from dementia and is an alcoholic... None of which we ever knew!!! I have to run. Can we continue by e-mail?
No, I can't access or receive emails, nor send them (per JustAnswer terms of service). ,When do you think that you can return?
I will have my iPad! In about 15 minutes... What link do I use to reconnect?
If you logged in with an account, you will need to do so with your iPad. If not, you'll have to return to your computer (I assume that's what you're using?) and return to this specific page.
OK. I just copied and pasted the link and e-mailed to myself. Will that work?
It should. Just let me know when you can chat some more.
OK. Thank you!
My pleasure, and I look forward to talking with you later.
Good. Have you been told specifically what type of larceny you're charged with (such as extortion, etc...)? And to be clear, you have not defaulted on your loans?
Are you there? Did you see my follow up question?
Have you been told specifically what type of larceny you're charged with (such as extortion, etc...)? And to be clear, you have not defaulted on your loans?
Did you see my follow up question? It seems as though we're having communication difficulties.
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I have switched this to Q&A. Can you please re-type your response?
Charge of larceny 1 in Connecticut. No default.
And to be clear, you never were a caretaker or had any other position of authority or responsibility of this man?
No. This person, a lady, has been our neighbor and friend for nearly 20 years.
It is a lady. No, never a caretaker. Just a good neighbor and friend.
You can find the Connecticut larceny laws here: http://law.justia.com/codes/connecticut/2005/title53a/sec53a-119.html Sec. 53a-119. Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.And intent is absolutely required. I think that there would be a few ways to contest this: First of all there's no indication of intent to defraud, steal, embezzle, etc... nor any evidence of that intent. Second, there's no indication that there was wrongful action taken. Third, there's no "property" that is approprirated. A signature on a paper is not "property", and you're primarily liable on this loan, so until you default she would not have any liability. Fourth, neither she nor her property was in your care or custody at any time. But strictly speaking, the embezzlement has to be property that is left in your care or custody, and all you got was a signature, which she offered voluntarily. I would print off the whole statute of larceny and ask what you're actually being charged under and go line by line, word by word to show that it does not apply in your situation. I would be surprised if they take this any further, as they don't have any evidence or indication that you acted wrongfully, but I've seen more egregious actions on the part of DAs, so I can't say for certain. If this continues to trial, I would get an attorney to argue your case, as you don't want a Criminal Record. Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
Agreed! There was no intent. all your points are well taken. May I contact you further if I have other questions?
Absolutely, and I would love to hear about the outcome of this case. You can continue to ask follow up questions and post here after you rate the answer.
Licensed Texas General Practice Attorney
Thank you Scotty. You are Excellent!
Hi Scotty. Two follow up questions...1. Could the co-signer's credit be considered property under law?2. Could that "property" be considered to be embezzled or misappropriated?Again, this was a transparent, arms length, fully understood and consensual favor by a friend who was to my knowledge of sound body and mind fully understood and accepted by the lender. There was no Misrepresentation or extortion or pressure in this transaction. The co-signer could have said no and the bank could have denied the loan. Neither did. And I asked the co-signer several times whether she wanted or needed to consult with anyone - her lawyer, accountant, banker, financial advisor, family or other friends... She said each time, "No, I make all my own decisions." this is a person who herself had a math and financial background, smart and cogent as ever! There was no intent, or as far as I can tell evidence, of fraud. The co-signer's family is saying that she is infirm, has dementia and drinks heavily, with only partial memory at best, and is in no position to testify on her or my behalf.Additionally, the loan is in good standing, it is being consolidated to remove the co-signer from the loan, and even if the co-signer remained on the loan, only her credit rating would be at risk, but the lender would not pursue her for payment. Default could also be prevented with a forebearance and/ or deferment, as well as being serviced easily by myself and/or other family members if necessary. If I were to die, my life insurance could easily cover the entire loan and the co-signer would not inherit the loan. If the co-signer were to die, the contingent liability of co-signing would not pass on to her estate and heirs.So where is the harm, beyond any lack of intent? None, I believe.But am I reasoning from a civil versus a criminal law perspective? Is there a technicality that could undermine the facts and impute guilt of Larcny 1?
1. Could the co-signers credit be considered property under law? - Arguably, if he entrusted it to you as an "agent". That is, if he gave you a power of attorney or some other authority to sign on his behalf, that might be considered property. But he signed it willingly. That would be like him giving you money and saying it was yours, rather than you taking money from his wallet (which would be theft, or embezzlement if he entrusted you his wallet but only for his own purposes). It appears that this was given to you, without any expected benefit on his end. 2. Could that "property" be considered to be embezzled or misappropriated? - Again, under the right circumstances, maybe, but I think it's too far a stretch to call this situation as such. Basically he would have to entrust you with his credit, and you would misappropriate that by signing documents that he did not nor would not agree to. But since he signed personally, then I don't think that this would fly.
To your points for the first question, the co-signer never lent or gave me money, but by co-signing, knowingly and willingly, facilitated the approval of the student loan. The lender paid the school directly.With respect to your points for the second question, the only potential misappropriation of the co-signer's credit as "property" would be if I intended to default in the first place. There is no default, or evidence of intent to default.Co-signing is legal, and a co-signer is always at risk of the borrower potentially defaulting. This was a legal, transparent, consensual transaction that the DA is asserting a criminal act of Larceny 1.I do not see where the intent, or proof of intent, is. They wanted to charge me under "Elder Laws" but the co-signer's memory is impaired, so they are pushing for Larceny 1.There has been no harm, no intent to misrepresent and thereby misappropriate "property," and I immediately complied with the co-signer's family's demand to remove the co- signer through the loan consolidation, which is in process.Do you think I have reasonable grounds to have my case dismissed at best or at least avoid a long trial process and not be convicted?
I do. Again, they have a burden of proof to prove that beyond a reasonable doubt you intentionally misappropriated this individuals property and/or took advantage of her. You can show that you've been friends for 20 years, and that you truly believed that this was out of the kindness of her heart. Now again, that doesn't mean that the DA will drop the case, but if the judge determines that no reasonable jury could convict given the evidence, the judge can dismiss the charges "without prejudice". What that means, essentially, is the judge is telling the DA that they don't have enough evidence, and if they want to try again, they will need more evidence next time.
Any evidence would be contrived circumstantially and based on presumed motive of financial desperation. The consequence of not getting the loan to fund the balance of the college bill and being dined readmittsnce to school would not be desperation - just disappointing.Do you agree or can evidence be contrived on the basis of imputed circumstances?
Evidence can be direct or circumstantial, but it does have to logically lead to a result. It has to make that which it is being offered for more likely than the alternative. And then there has to be a "sufficiency" of the evidence. In criminal cases, that means enough evidence to prove beyond a reasonable doubt the elements of the crime (including the intent factor). And based upon what you've told me, I would be shocked if they had anything close to that. Again, if they proceed with this case and you go to trial (assuming that this upcoming court date is not trial but some pre-trial hearing) you should get an attorney to assist, but I don't think that the judge should go any further than it has gone now (again, assuming there's nothing more that the prosecution would have to support their case).
It is a pre-trial hearing... I just don't know what evidence the prosecutor has. My credit profile is certainly marred by a few things including working in getting my mortgage modified from foreclosure and tax liens. But that does not constitute financial desperation that would not motivate me to commit Larceny in getting a co- signer for a student loan for my son where the loan proceeds go directly from the lender to the school...If thst's their belief, do you think that is sufficient to make the prosecutor's case?Yes - I do have n attorney.
I don't know. But even if it was financial desperation, that wouldn't be enough to make the leap that because of this desperation, you took advantage of this woman. It's just as logical to say that because of this desperation AND the 20 year friendship that she shared with you, that she wanted to help you. That is, this evidence, alone, would not be enough to lead to the conclusion that a crime was committed.
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