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Richard
Richard, Attorney
Category: Legal
Satisfied Customers: 53943
Experience:  Attorney with 29 years of experience.
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I am having a problem with someone I was dating--I fear I am

Customer Question

I am having a problem with someone I was dating--I fear I am a victim of being swindled because I was being used to get things when the person was telling me that he cared for (loved) me --but the relationship was never balanced--and he seemed to always have a need that I had to help him with. Now he has a cell phone that I let him use--but he will not give back to me. I stopped the service--it is now back to my name and number--but I asked the ph company to freeze all the activity--he does not want to give it back to me till he can erase everything on it. But he SAID he WOULD give it back but he thinks he does not HAVE to --he claims I gave it to him. But he was only using it--because his phone was so bad. In fact I helped him set up the service on the loaner phone and he SAID he would pay me back but he still has not--he owes me for THAT too. I do not know how to report this kind of crime or how to get protection from this person. I tried to physically go to where he lives to make it easy for him to give it back to me but he is avoiding me. He said he was not home but his car was there. I have sent him many texts and left voicemails--he has responded to some--but all responses have been negative and mean--he is not happy that I am not going to give anymore. But it is scary that he will not return this phone and scary that he is being so secretive. I just want the phone back and want to do this in a way that I do not go to more expense and I have police coming to my home or I have to go to court.
Submitted: 11 months ago.
Category: Legal
Expert:  Richard replied 11 months ago.

Good afternoon. My name is ***** ***** I look forward to helping you.

I know you mentioned you don't want to involve the police or the courts, but I can't totally give you an avenue to avoid both. You don't have to get the police involved, but if he won't give you the phone back voluntarily. you would need to go to court. BUT, you can do this simply by filing this in small claims court which would not require a lawyer. Further, small claims courts are very informal and very easy to navigate without the lawyer. Filing the suit give you the collection options and leverage you need to collect the debt owed you. That's because once the suit is filed and a judgment awarded, you become a judgment creditor, and if he doesn’t then pay the judgment, you can have the sheriff serve a summons on him for a debtor examination. That forces him to meet you in court again and answer questions under oath about his assets. After that information is obtained, you have the power to garnish wages, attach bank accounts, have the sheriff seize other personal property, and/or place liens on any non-homestead property he owns to satisfy the judgment. In my experience, simply filing the suit is typically all you need to do to resolve this outside of court because most of the time, once served with a summons one he is being sued, he will return the phone before any hearing to avoid the judgment and having his assets attached and/or wages garnished to pay the judgment.

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Customer: replied 11 months ago.
I am not sure you have addressed the concern I have about being swindled because of the relationship. Isn't that a crime? What kind of crime is it? Aren't I protected under the law? And he SAYS I gave him the phone. Because he still HAS it--does that hurt my case? Because it is in HIS possession? Or is it my word against his? Can I collect court fees from him? Do I have to take him to court where HE lives or where I live?
Customer: replied 11 months ago.
What if I call adult protective services or his boss? After all it was because of his job that he used his position to make advances towards me and get into my good graces and swindle me.
Expert:  Richard replied 11 months ago.

Thanks for following up. It's a much higher burden of proof for a criminal prosecution than a monetary civil case. In a criminal case, you must prove your case beyond a reasonable doubt while a civil judgment only takes a preponderance of the evidence (basically a majority). So, when there is a relationship, to be honest with you, it's likely you'd have a hard time getting a prosecutor to agree to prosecute this. Once you got your civil judgment, you could then file a criminal fraud charge against him. The possession doesn't hurt you since it's your account. Yes, you can collect court fees. You will need to file it where he lives, but you can file these small claims cases by mail. You could call his boss, but you want to be careful about him turning around and filing a tortious interference charge on you for interfering with his job.

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