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Law Pro, Criminal Defense Lawyer
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Experience:  20 years trial experience in defense of criminal cases
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At what point does the retention of property by one person

Resolved Question:

At what point does the retention of property by one person and their refusal to return it become a criminal offense? Or when does replvine become theft?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Law Pro replied 1 year ago.
Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.

What is the situation whereby they came into possession of the property?
Customer: replied 1 year ago.

2 Years ago art was loaned to the person who now claims it as their own. 2 months ago they claimed ownership. FYI this art has a book value of about $850,000.


 


One month ago we demanded the return of the work. I have checked with Just Answer before and was told that upon demand they must return the work to a place I designate, at their expense and in the condition it was when borrowed.


 


I want to know if going forward we can now say it has been stolen (that might shake them up) or that we no longer want it back and we full demand payment.


 


thanks


 

Expert:  Law Pro replied 1 year ago.
OK.

Any idea what's giving them the impression that the art work is theirs?
Customer: replied 1 year ago.

She wants today it is compensation for money she spent during our 5 year relationship… but I sent money too and there are no written agreements regarding this. Even if there were the amounts do not come close to the value of the art

Expert:  Law Pro replied 1 year ago.
OK, I understand - she's retaining the picture for reimbursement of monies allegedly owed otherwise.

Have you filed a replevin action?
Customer: replied 1 year ago.

Actually this applies to several pieces of art. We may be ready to file a replvine action this thursday but it occurred to me that maybe we could file a criminal complaint to heat this up as they are just stalling hoping to run up my legal bills… she has lots of money and has a history of fighting others like this.

Expert:  Law Pro replied 1 year ago.
OK, I'm understanding.

Regretfully, if she has a "good faith" belief that you owe her monies (regardless if she is right or wrong) then it's not criminal for her to withhold returning the art work.

You will have to file a replevin action to get back the art work.

As you are aware - a replevin action is a civil action for the recovery of personal property being withheld.

In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the plaintiff at the outset of the action (i.e. before judgment). In other situations, a party seeking relief may elect to adjudicate the right to possession prior to obtaining immediate relief to obtain the property in question.

However, in this instance - they are guilty of conversion and extortion.

A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion. The element of knowledge is found when the accused person engages in the conduct and he/she is aware of a high probability that he/she is doing so. An essential element of criminal conversion is that “the property must be owned by another and the conversion thereof must be without the consent and against the will of the party, to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the property.” - See more at: http://conversion.uslegal.com/criminal-conversion/#sthash.2SJpHhV9.dpuf
A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion. The element of knowledge is found when the accused person engages in the conduct and he/she is aware of a high probability that he/she is doing so. An essential element of criminal conversion is that “the property must be owned by another and the conversion thereof must be without the consent and against the will of the party, to whom the property belongs, coupled with the fraudulent intent to deprive the owner of the property.


They are wrongfully committing conversion (holding the artwork hostage) as leverage to extort monies from you.

Extortion (also called shakedown, outwresting, and exaction) is a criminal offense of obtaining money, property, or services from a person, entity, or institution, through coercion. [Wikipedia]


So, there is no good faith belief that they are owners or entitled to the artwork - they are commiting extortion and conversion for wrongfully withholding the artwork.

I would most definitely file a criminal complaint against them.
Customer: replied 1 year ago.

So I have a possible criminal complaint.


What if I decided instead to just say now I don't want the art back. I want you to pay me for it and if you do I will leave you alone on the criminal side.



But also how do you file a criminal complaint do I just go to the police station and follow the prompts.. and what if I also want to do this in Chicago. same thing and finally then what happens to her (them)?

Expert:  Law Pro replied 1 year ago.
You can't force someone to pay what they can't pay. If they did damage - then you could make them pay whatever damages or diminution in value they caused.

But at this point all you are entitled to - is your property back.

If you lost monies because you couldn't rent the artwork - you could recover your lost profits from rental of the artwork because of her wrongful withholding from you.

If she is in Wisconsin - you would have to go there to the county District Attorney there and file a criminal complaint.

A Illinois court does not have jurisdiction over criminal activity done in another state. You have to go where the crime was committed.

Customer: replied 1 year ago.

okay but some of this crime was committed in Ill. because some of the art is there… so how do I file something there?


 

Expert:  Law Pro replied 1 year ago.
If any of her actions were done in Illinois - then you can file a criminal complaint with the District Attorney's office in Illinois - in the County where the crime was committed.

What you would do is go down to the DA's office and inform the clerk that you want to talk to an Ass't DA and file a private criminal complaint. The clerk will ask you some basic questions as to what type of crime you want to file about then introduce you to an Ass't DA who handles that type of crime.

It's actually a simple matter and they actually take notes and fill out the complaint which you will thereafter sign.




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