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RobertJDFL, Lawyer
Category: Criminal Law
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Experience:  Experienced in multiple areas of the law.
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I took out several loans over the coarse of 9 months from an

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I took out several loans over the coarse of 9 months from an elderly couple.They are 100% compatent.We had several promisery notes and I am making monthly payments.Now their son found out I borrowed money from his parents,and he has an investiagtor from the police dept trying to press charges on me for theft by swindle.Now the couple is also turning on me because they don't want to loose their son.Can they really press charges on me for this?They are saying I lied as to why I wanted to borrow the money.Nothing at all was in writing as to why I borrowed the money.

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The couple can report it to the police, and it's possible the police could arrest you if they believe a crime has been comitted, but it is the prosecutor's office who decides whether or not to file charges. A person cannot "press charges," because that is the role of the state.

Theft by Swindle is defined by Minn. Stat. Ann § 609.52 Subd. 2(4) as swindling, whether by artifice, trick, device, or any other means whereby a person obtains property or services from another person.

In State v. Flicek, 657 N.W.2d 592 (Minn. Court. App. 2003), the Court held that swindling requires a showing of affirmative or fraudulent behavior. In this case, the city of Elko, MN, would assess any delinquent balances of residents’ water bills to the residents’ property taxes. The city’s treasurer and a city counselor were both delinquent on their respective water bills. The treasurer omitted these delinquencies from the audit and neither the treasurer nor the counselor were assessed. Over a number of years, each had an outstanding balance of thousands of dollars each. A later audit discovered these discrepancies and each were charged with theft by swindle.

The Court held that the charges were not appropriate in this case because the state failed to provide evidence that wold be necessary to prove all of the elements of the crime. The Court held that theft by swindle requires the intent to defraud, and inherent in the intent requirement is that a swindler must act affirmatively to defraud another. Even though the city treasurer and the council member abused their positions of authority by failing to disclose the delinquencies; neither the treasure nor council member received utility services by deceit because their billings were accurately noted in city ledgers and neither indicated that they had paid their bills when they actually had not.

Based on these facts, it would be very difficult for a prosecutor to charge you with theft by swindle because you do not meet the necessary elements. The reason or reasons you borrowed the money is not important. What is important is that there was no intent to deceive them. In each case, both you, and I am assuming the elderly couple, signed promissory notes voluntarily. You made payments, and continue to do so. There is no defrauding or intent to defraud. You agreed to pay back the loans and are doing so.

If you had taken the money and skipped town, and never made a payment, I could see the basis for a charge, but I do not see such a basis here.


Please let me know if you need any clarification or additional information.

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Customer: replied 4 years ago.

So even if the son and the elderly couple are now saying I Tricked them into borrowing me the money,they have no basis?Because they say I Lied about why I wanted to borrow it,I tricked them they say.And the son is saying that I promised his parents a Big Settlement Payment when I get a back settlement.I allready got my settlement back in 06 and he's saying I said I get it now and I promised them that to borrow me the money.Is this all here say crap?And why is the Investigator trying so hard to nail me if he didn't think he had a case?

What the son says is hearsay. As far as your reasons for borrowing the money, that doesn't matter. As the court case I cited above notes, in order to be convicted of a theft by swindle, you must have the intent to defraud another, and must act affirmatively to defraud them.

Based just on these facts, I see absolutely zero intent to defraud them. If you were defrauding them, why would you agree to sign promissary notes? Why would you make payments? Where is the intent to cheat them? Where did you purposely take steps when borrowing this money to scam them? If you had taken the money and promised that you would double it in 6 months, okay, I could see perhaps an intent to defraud. But you said you have made, and continue to make, payments. Furthermore, they signed the promissary notes. You said there were several of them. So they loaned you money and voluntarily signed the notes. You didn't put a gun to their head and force them.

Unless there is a lot more to this that I'm not seeing, there is not a crime here.

As for the officer, a police officers job is to find people responsible for committing crimes. They may act like they know the laws, but they often don't. They obviously don't have the same understanding as a prosecutor would. And the burden of proof for an officer to make an arrest is probable cause -essentially, their reasonable belief that you are guilty. It doesn't matter whether their belief is right or wrong, which is why there are people who get arrested and then are never charged with crimes.

You have no obligation to speak to that officer, and you should not do so. Don't say a word to them, and don't put anything in writing. If they ask you to answer questions, tell them you decline and you will have a lawyer be in touch.
Customer: replied 4 years ago.

Ok,That sounds right.1 more question.The officer investigator sais I tricked them into signing the promiserry notes.Which is simply not true.Can he say this and get away with this?

The officer can say whatever he wants, what matters is what the prosecutor will see and believe. Again, you said there were several promissary notes. If they felt they had been tricked, why would they continue to sign them? Why continue to loan you money, and why continue to accept your payments?

And that's another key point in your favor that the officer can't get around -your paying on the loans. If your intent was to defraud this couple, you're doing it wrong, because you're paying them back. Fraud would indicate you took advantage, you benefited. At the very least though, they are going to get repaid, and depending on the terms of the agreement, you may even be paying them interest.

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