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socrateaser
socrateaser, Lawyer
Category: Consumer Protection Law
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Experience:  Retired (mostly)
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Victim of fraud

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My son was the victim of a fraud scam. He thought he was working as an orderer for a company. He deposited a check from an out of state company in his credit union account and he then got a money order and sent it to what he thought was another company person. The credit union did not put a three day hold and it seems that the company that the check was written was a closed account. That we found out three days later. The Credit union says that he must pay them back to a total of $1900.00. Plus his account with his $366.00 was cleared. What can he do?

Hello,

As a pure academic question, the answer would be to sue the employer. The problem is that the employer is apparently a criminal enterprise, so even if you were to find the perpetrator and sue, and even if you were to win, you would never collect, because criminals don't pay their bills. They go to jail.

There may be an argument here that the credit union's negligence has caused its own damage. Banks routinely hold funds until they clear, especially in accounts where there is insufficient funds to cover the amount of a deposited item. It may be that the credit union failed to follow its own procedure, and as such it is contributorily negligent and so your son would not be liable for the funds.

Concerning the $366, banks are entitled to offset their debts against depositor funds. So, there is no means of recovering this amount, even if your son were to be sued by the bank and assuming that he were to prevail.

In sum, your son can simply refuse to pay back the money, if he has already spent it. If not then, to the extent that he currently still has the funds, he must return that amount, because a court would hold him liable to return that which he has not already used due to his reliance on the bank's errors and omissions -- because the money is not really his -- it's the bank's money.

 

I realize that this is a somewhat convoluted issue. However, ultimately, it's a matter for criminal law enforcement, and unless and until the perpetrator is caught, there isn't really anything else that your son can do.

Hope this helps.

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