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Hammer O'Justice
Hammer O'Justice, Attorney
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Experience:  9 years legal experience
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My company accepted two checks from a local company for the

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My company accepted two checks from a local company for the purchase of electronics. Both of these checks were stop payment and one of them we had refunded the money to the company due to 1 set of returns before we knew the check was stop payment. The county attorneys office will not accept my case under the bad check program because the checks required two signatures and that they were stop payment, the police will not even accept the case as they refer me to the county attorneys office. Can I press criminal theft charges because we refunded some of the money and have no other recourse. The checks totaled almost $10,000.00 and as of now it looks like we are going to have to take the loss. I've read the theft statute and it does state taking control of property by means of deception so wouldn't this qualify and if so why will no one help us?
Submitted: 1 year ago.
Category: Legal
Expert:  Hammer O'Justice replied 1 year ago.
Hello.

Unfortunately, you cannot force the police or prosecutor's office to pursue charges because it is within their discretion to make those decisions. You can try to escalate your complaint with the county's attorney's office to a supervisor or higher up in an attempt to get them to pursue your case, but they pretty much have the final word on whether or not to prosecute a case.

If they still refuse, you can still try to sue them in civil court to recover the money. Because the amount exceeds $2500, you cannot use small claims court. You can either retain a lawyer to help file the lawsuit, or you can try to do it yourself. The Arizona courts have a part of their website that contains the forms you will need as well as instructions. There are different forms for cases under $10,000 and over $10,000 so make sure you select the right ones. You will also want to get your evidence together...copies of the invoices, the checks that were stopped, as well as proof that you gave them a refund for some of the items, etc.

http://www.azcourts.gov/PublicServices/CivilLaw.aspx


Sorry I can't give you better news about the criminal side but unfortunately no one can really force a prosecutor to pursue a case because they are given discretion in the matter. It may be worth a chance to try to speak with a supervisor or higher up but if you can't get movement in that area you still have the civil option to pursue.
Hammer O'Justice, Attorney
Category: Legal
Satisfied Customers: 3987
Experience: 9 years legal experience
Hammer O'Justice and 14 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

can you please explain why we do not qualify as the county attorney will not. Is theft not a different statute then bad check? Could I just call the police and report theft instead of bad check or is a bad thing. I guess I'm just looking for an explanation I thought this was a cut an dry.

 

In fact the county attorneys office just repeats themself, these check don't qualify we cannot accept them in our program talk to a lawyer to proceed in civil court. No explanation or anything.

Expert:  Hammer O'Justice replied 1 year ago.
I can only guess, but what I suspect is that it is excluded under their provision that they do not take cases that arise out of a civil issue. The state's bad check law essentially states that someone cannot write a check knowing that their are insufficient funds in their account. That is not necessarily what happened here. The availability of funds were never at issue here because they stopped payment on the check, which then becomes a civil issue of non-payment of goods (or a related claim like conversion or civil theft). There is a difference between having insufficient funds and just refusing to pay by canceling the check. The former is covered by the criminal bad check law and the check program only takes those types of cases. It is a strange distinction but the bad check law only covers that particular scenario, not use of a check for theft or fraud:

http://law.justia.com/codes/arizona/2011/title13/section13-1807

Since it doesn't qualify for the bad check program you can see if they will prosecute on the grounds of theft or fraud.
Customer: replied 1 year ago.

In your opinion would this qualify as fraud or theft under general law or am I barking up the wrong tree?

 

I don't want to piss off the county attorneys office in the county I do busisness.

Expert:  Hammer O'Justice replied 1 year ago.
In my opinion I think that a case could be made.

With respect to the theft statute, which is located here:
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/01802.htm&Title=13&DocType=ARS

Subsection (3) seems applicable here: "Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services." It can be argued that the presentation of what was misrepresented to be a valid check for payment could fit that mold, particularly if they sought the refund for the returned items after putting a stop payment order on the checks.

In my opinion the fraudulent scheme statute is even more relevant to your situation, because the two acts of obtaining property and then cash under false pretenses indicates a scheme:

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/02310.htm&Title=13&DocType=ARS
Customer: replied 1 year ago.

What about the whole required two signatures on the check thing? This was another category we fell into. Most corporate checks we take require two signatures either from a treasure/supervisor and LLC member or Inc board member.

Expert:  Hammer O'Justice replied 1 year ago.
Even if you made an error by accepting the check without both signatures, the person who presented the check still used them to obtain merchandise through fraud. And as a separate matter, by returning the property for cash knowing that the items were not legitimately paid for, there was a second criminal act here that is unrelated to the check signature issue.

Even if for some reason prosecutors use it as a reason not to prosecute it should not interfere with you pursuing a civil claim either.
Customer: replied 1 year ago.

Both signatures were on the check

 

I've taken the civil route before and never got anything back which is why I'm trying for other options. Most of the time a company files bankruptcy if they don't want to pay here.

Expert:  Hammer O'Justice replied 1 year ago.
Then it shouldn't be a problem. I definitely understand where you are coming from. The criminal route is usually the preferable way because the prosecutor does all the lawyering for you and people are more likely to pay restitution if it is a condition of probation. Hopefully the prosecutor's office will work with you to get these people charged with something.
Customer: replied 1 year ago.

Thanks for the help I'm going to call them Monday

Expert:  Hammer O'Justice replied 1 year ago.
Sure...good luck. You may want to see if you can make an appointment with them and show them all the documentation you have. I hope you are able to work something out.

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