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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87229
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My previous employer deposit to my 401K account $8600 back

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My previous employer deposit to my 401K account $8600 back in 2007, and in 2013 they want that amount back plus the market gain which is an additional of $3000 to $4000, I agree to refund there $8600 but nothing more, what should I do and what action can they take against me because that amount was deposit by error and they just found out I didn't even know that was there money, I thought it was mine.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) Did you agree to refund in writing or verbally?
2) Have you actually refunded them part of the money yet, or not?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

I agree verbally to refund only the $8600 and I did not refund any amount yet.

Expert:  Ely replied 1 year ago.
Thank you, Mourad. I am typing out your answer now; apologies in advance for the wait...
Expert:  Ely replied 1 year ago.
Mourad,

Now, if you have money that belongs to someone else, then arguably you have to give it back. There is no "right" that allows you to keep the money if it is not really yours.

what should I do and what action can they take against me

This is not a criminal matter so if they are threatening criminal action, do not allow them to trick you. This is a civil matter. To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state. Every cause of action has its own elements, and each element has to be satisfied for a cause of action to be successful in court.

Here, this may be a case of money had and received, which is a cause of action where Plaintiff (your ex-employer) is entitled to be repaid the amount of the overpayment and the Defendant (you) in equity and good conscience have no right to retain the overpayment. Town of Stratford v. CASTATER, Conn: Appellate Court 2012.

"The action for money had and received is an equitable action to recover back money paid by mistake where the payor is free from any moral or legal obligation to make the payment and the payee in good conscience has no right to retain it. Is the plaintiff in this action, as between it and the defendant, in equity and good conscience entitled to the money? If it is, then it is entitled to recover. The real ground of recovery is the equitable right of the plaintiff to the money." Bridgeport Hydraulic Co. v. Bridgeport, 103 Conn. 249, 261-62, 130 A. 164 (1925).

However, you may have the upper hand. In CT, actions have to be filed within a certain amount of time, within "statute of limitations," or else it is too late.

At the most, they have SIX YEARS to file a suit, per §52-576. As such, that means that right about this time, their statute of limitations is EXPIRING. If you can wait six years until after they gave the overpayment, there is nothing they can do.

As such, someone in your situation may wish to do NOTHING and stretch this matter out if possible until 6 years is up. Once this is done, it is too late for them to do anything.

I hope this helps and clarifies. Best of luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 87229
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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