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Timothy D. Smith
Timothy D. Smith, Lawyer
Category: Criminal Law
Satisfied Customers: 2184
Experience:  In House Counsel for Law Enforcement Agency
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Is situation criminal or civil or both. 1. fraud 2.

Customer Question

Is situation criminal or civil or both.

1. fraud

2. embezzelment

3. partial payment made was bad check of 50k...this is currently being prossecuted.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Timothy D. Smith replied 1 year ago.

I hope this message finds you well, present circumstances excluded. The answer to your question is that all three have both criminal and civil applicability. Moreover, fraud and embezzlement are most definitely criminal violations under the Missouri Criminal Code. To that end, in both cases there are provisions which will allow the court not only to sentence this individual criminally for the violations of criminal law, but also to assess damages predicated on these violations to make the aggrieved party or parties (you and your partner) whole again.

 

If the court did not award damages though the criminal conviction, you could always bring a suit at a later date. However, you should be aware of the statute of limitations running for bringing civil suit. The statute would not be tolled by the criminal prosecution. Fraud is a ten year statute of limitations and embezzlement is an intentional tort carrying a two year statute of limitations in Missouri.

 

The best laid plan will be to have the police involved in all three criminal activities. Even if they do not get damages out of this person in the criminal convictions, the fact that he was convicted will be an advantage in civil suit. Of course, if he is in jail, it may be hard to collect on the judgment, unfortunately. This is an all too common reality in dealing with individuals that commit these crimes.

 

Let me know if you have any other questions or comments. I want to make sure you are completely satisfied with the answers given herein.

 

Best wishes going forward.

Timothy D. Smith, Lawyer
Category: Criminal Law
Satisfied Customers: 2184
Experience: In House Counsel for Law Enforcement Agency
Timothy D. Smith and 4 other Criminal Law Specialists are ready to help you
Expert:  Timothy D. Smith replied 1 year ago.
By the way, I see no true RICCO issue with this to worry about.
Customer: replied 1 year ago.


Thank you for your reply, it is helpful.


 


1. For clarity do you believe ricco is in play because of the three criminal areas?


 


2. I am going to speak to the police immediatly, waiting on a return call from them as I am not in that state presently. But do I file civil suit at the same time or wait until criminal is completed and is this a problem with the 2 year statue with embezzelment?

Expert:  Timothy D. Smith replied 1 year ago.

I don't think so. I also would not want to go that route. RICCO is going to involve the federal criminal court system which, in my opinion, is less likely to help you in getting an award of damages.

 

You don't have to file civil immediately, but you need to do so on the embezzlement within two years of you becoming aware that it took place.

Customer: replied 1 year ago.


Thank you.


 


1. I just checked and he put the properties in a different corporation name not his personal name but another llc that he is sole owner of.


 


2. what does intentional tort mean.


 


thanks

Expert:  Timothy D. Smith replied 1 year ago.

Intentional tort is an intentional action by an individual that they either knew or should have known would cause harm.

 

The LLC will not be an issue...it actually may benefit you. Be sure and print out the corporate documents off of the secretary of state website for your records.

Customer: replied 1 year ago.


Thank you again. Sorry for the delay and I appreciate your assistance.


 


Additionally


 


1. Do you have any advice as to how to present this to the police/prosecutor as I had a brief conversation and the person stated "there is a fine line between civil cases and criminal" Leading me to be concerned that they might not see this as criminal if not presented correctly.


 


2. I got the filing information for both companies. The one that we are 1/3 owners of as well as the one that he is sole owner of and whom he deeded the properties in. 2 of the properties have been sold and the 3rd is still in his name.


 


3. I did not know he put the properties in a different company name until november of 2012. However in December of 2011 I was aware he sold a property and did not give us his payment. So I am not sure on the "aware" date. Can you advise.


 


4. Are an option for hire for this in the civil arena as joplin and springfield seem to have juristiction over parts of this. If not do you personally know someone you would reccommend in this area.


 


Thank you for the help.

Expert:  Timothy D. Smith replied 1 year ago.

1. Do you have any advice as to how to present this to the police/prosecutor as I had a brief conversation and the person stated "there is a fine line between civil cases and criminal" Leading me to be concerned that they might not see this as criminal if not presented correctly.

 

I would only advise that you go in with documentation. Moreover, it would also be a good idea to approach them with the Missouri criminal statutes which most closely approximate the crimes committed. You should be able to access and perform a key word search of the Georgia Criminal Code on your legislature's website.

 

2. I got the filing information for both companies. The one that we are 1/3 owners of as well as the one that he is sole owner of and whom he deeded the properties in. 2 of the properties have been sold and the 3rd is still in his name.

 

This will be good information to bring with you to meet with the police and/or prosecutors. Any and all information that will show him to have broken criminal laws is good and will force the hand of the authorities.

 

3. I did not know he put the properties in a different company name until november of 2012. However in December of 2011 I was aware he sold a property and did not give us his payment. So I am not sure on the "aware" date. Can you advise.

 

I always err on the side of caution. As such, to negate any defenses he may try to allege, I would use November of this year as the drop dead date for filing suit civilly against this individual. This will prevent the statute of limitations from even being an issue at all. The date of the sale could be used as the exact date by which to file suit.

 

4. Are an option for hire for this in the civil arena as joplin and springfield seem to have juristiction over parts of this. If not do you personally know someone you would reccommend in this area.

 

Unfortunately, I cannot help with the matter in that way. I recommend that you use the Missouri Bar Association Attorney Search Function as linked here (http://members.mobar.org/members/LawyerSearch/LawyerSearch.aspx). Talk with a few attorneys to make sure that you are getting the most bang for your buck from a fee structure standpoint as well as to make sure you are working with someone you trust.

 

 

Customer: replied 1 year ago.


thank you,


 


In answer number one did you mean missouri instead of georgia?

Expert:  Timothy D. Smith replied 1 year ago.
Yes...I am sorry about that...had Georgia on my brain for some reason. Thank you for catching that and I apologize for any confusion.
Customer: replied 1 year ago.


I don't know if you are available today at all however.


 


I have done all that you stated.


 


But I forgot to ask you if it is possible to get an injunction which would prevent the person for selling or harming the remaining property that was part of the contract.


 


2 of the 3 properties were sold obviously without our consent or knowledge but one of the properties is still in the fraudulant ownership name.


 


thanks, K


 


 

Expert:  Timothy D. Smith replied 1 year ago.
Absolutely it is possible. You could seek an injunction from the court preventing any further action on the property until the other matters are decided upon. Moreover, this would prevent any physical harm and could even order that the property be maintained in a satisfactory manner until things are decided by the court. This would mean normal upkeep (mow grass, paint, upkeep on hardware, etc.).
Customer: replied 1 year ago.

 


Do you know if this is something we could request ourselves to the court or must we hire an attorney to get this.


 


Or is it something we can request when we file the police report?


 


Thank you, finances are tight and having your help has been a huge relief. You have earned that bonus and wish I could do more. Thanks again so very much.

Expert:  Timothy D. Smith replied 1 year ago.

Do you know if this is something we could request ourselves to the court or must we hire an attorney to get this.

 

You can file for injunctive relief yourself with the assistance of the court clerk. First, ask if they have injunction forms available. If not, ask for a copy of the most recent couple of injunctive filings in the court to use as a template. These are typically public record. You could mimic them for style and effect, but use your own language to describe what is going on in this particular case.

Or is it something we can request when we file the police report?

 

This is typically not a function of the police, but is something they will assist in enforcement of after an order has been given by the court on your petition.

 

Thank you for your generosity!

Customer: replied 1 year ago.


I checked with the clerk of court and they said no form and no filings without case numbers.


 


I called one attorney who stated that in missouri there is a whole process for injuctive relief and that in order to get it we must file the 3 part civil suit for 1. injunction


2. Fraud


3. the misuse of funds


 


And that it must all be done at one time. This particular wants a 5k retainer straight away.


 


He say's that every other week he is a city judge so...possibly not the correct individual ...but his opinion was obviously dissapointing.


 


Are you familiar with Missouri law...and could it be that different than what you stated?


 


thanks, K

Expert:  Timothy D. Smith replied 1 year ago.

I am very familiar with Missouri law. You can seek and injunction without filing an entire three part suit. It would make sense to file them in conjunction with one another, but it is not mandated in the law to do so. It sounds like he is trying to justify a large retainer. I would suggest speaking with another attorney or two about the matter.

 

As to a form for injunctive relief, there are websites such as uslegalforms.com that will have state specific templates for purchase for virtually any legal matter. The forms are normally around $25.

 

 

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