Can I Prosecute a Check Fraud Case Against My Wife on an Unauthorized Account

My question involves criminal law for the state of: Texas

Following the filing of my divorce petition in April 2011 (final hearing scheduled for January 2012), my wife stole a credit card and checks without my knowledge or consent - most likely during an encounter to sign paperwork for the divorce. I have had the checking account and credit card since before we were married. My wife was never an authorized user of the checking account. We closed our joint checking account when we separated in October 2010. She was an authorized user of the credit card, but was not an authorized user at the time of the event. In June/July 2011 she charged over $2,500 on the credit card, forging my signature. I reported the activity within a month (immediately after its discovery) to the local police department and the credit card company. The police said they could do nothing as it was a domestic issue and the credit card company indicated that without the police department's cooperation they would also be forced to do nothing. I stopped pursuing the matter. In July 2011 and October 2011 my wife forged five checks totaling over $2,000 to herself, fraudulently indorsing my signature on each. Because of stress at work, at home and in my military career, I was not and have not been monitoring my checking account as I should have been for quite some time. I did not discover the activity until late October 2011 when I went to pay for health insurance and my account was negative. I reported the activity immediately to the bank and the two police departments where the activity occurred upon discovery. The police investigation is pending but the bank denied my claim for all five checks; first, on the basis that the claim as a whole was invalid because two of the five checks were reported after the 30 day post-statement reporting period. After I noted that the last three checks were reported within the 30-day period they maintained their denial stating that I had created a "course of dealing" by not reporting the past fraudulent activity within the required timeline. In 2009, without my knowledge while away at military training, my wife allegedly forged a check or checks (awaiting proof of this from the bank) without my knowledge or consent that I did not report.

I am admittedly horrible at managing my checkbook (really with money in general), which is why I was so easy to take advantage of. I need some help answering these questions:

1. While I may not be eligible to recover the funds from the fraudulent July 2011 checks, do I still have standing to ask the bank to pay back the October 2011 check amounts that were reported in time? I thought the term "course of dealing" only applied to terms in a contract that were unstated or ambiguous. Because the depository agreement gives me the right to report within 30 days, shouldn't I still be eligible to recoup the funds?

2. Isn't the bank somewhat liable for not identifying the fraud from 2009 and 2011? And how can the bank say that my inaction or failure to report is grounds for cashing future fraudulent checks?

3. Most importantly, will the bank's denial negatively affect the criminal investigation? Does my inaction to report past fraud on an account give her the right to forge my signature indefinitely? How can she write checks to herself on an account that she is not an authorized user of?

I know this thread is ridiculously long, but the issue is very complicated. It has been a nightmare getting anyone to take my seriously, I am destitute and I can barely afford to pay rent let alone hire an attorney.

Thank you.

Request the judge make you whole in the divorce decision, if you cannot solve it any other way.

You've already made your police report. It's up to the police and, more importantly, the prosecutor whether they will proceed with criminal charges.

Banks don't have the manpower to investigate every signature on every check or charge, and lots of people authorize third parties (especially spouses) to sign for them or to make charges or payments without being added to an account. Also, without timely reports, the bank ends up in a much weaker position in relation to any attempt to recover money. Hence your contract requires a timely report of improper checks or charges.

A "course of dealing" is exactly that - a course of dealing. If you create a pattern of allowing your spouse to sign your checks, or of failing to take action such that the bank would know that the prior checks issued by your spouse were not authorized, such that a reasonable reviewer would believe that continued use of your account by your spouse was authorized, that becomes a defense to your later attempt to dispute the unauthorized charges. I am not going to go so far as to say that the bank is correct here - you may have the option of arbitration or litigation, depending on the terms of your bank contract, if you want that question resolved by somebody other than your bank - but I'm not even slightly surprised that the bank is looking for reasons why it does not have to reimburse you for checks that have already cleared.

Then bank's investigation and conclusions are irrelevant to those of the police and prosecutor. But if you're asking whether the police might look at a pattern of your wife's making charges, with your complaining about them only after you file for divorce, it's quite possible that they'll again tell you to pursue the matter through civil proceedings (e.g., your divorce).

As your divorce remains pending, you can seek reimbursement for the improper checks and charges as part of any settlement or judgment.

Aside from what MrKnowItAll said, about seeking reimbursement as part of the divorce settlement....

At this point, I would recommend you close that bank account, and get a new one set up. If the terms of the divorce proceedings will not allow that, talk to your attorney about freezing the account.