ExpertLaw.com Forums

Civil Lawsuit and Embezzlement Issues

Printable View

  • 10-05-2007, 07:44 PM
    sarahbrs
    Civil Lawsuit and Embezzlement Issues
    Eight years ago we sold a business to an aquantance. After he took over the business, money continued to be put into our old business checking account (money that should have gone to the new owner. An error on the part of the credit card company). My husband did not report it, and kept it instead. He spent the next 8 years spending this money. We were eventually found out, and they are suing us. We were told that the statute of limitations for this is 3 years, but the victims lawyer is filing to have this statute overlooked. He wants all 8 years worth of money back ($62,000). Plus is trying to sue for triple damages. Didn't his accountant have a responsibilty to discover he was being ripped off? Can they get around the statute of limitations in Colorado in a case like this?
  • 10-05-2007, 08:40 PM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Quote:

    Quoting sarahbrs
    View Post
    Eight years ago we sold a business to an aquantance. After he took over the business, money continued to be put into our old business checking account (money that should have gone to the new owner. An error on the part of the credit card company). My husband did not report it, and kept it instead. He spent the next 8 years spending this money. We were eventually found out, and they are suing us. We were told that the statute of limitations for this is 3 years, but the victims lawyer is filing to have this statute overlooked. He wants all 8 years worth of money back ($62,000). Plus is trying to sue for triple damages. Didn't his accountant have a responsibilty to discover he was being ripped off? Can they get around the statute of limitations in Colorado in a case like this?

    I assume you are talking about a charge of embezzlement. The statute of limitations may not apply but if they do, time begins with the last theft of this person's income from the business he purchased from you.

    [I]§ 512102(1)(b), C.R.S. 2004, provides “interest shall be at the rate of eight percent per annum compounded annually for all moneys or the value of all property after they are wrongfully withheld or after they become due to the date of payment or to the
    date judgment is entered, whichever first occurs.”


    His accountant has nothing to do with the charges against you.

    Hopefully, you have reported this income to the IRS over the past 8 years.
  • 10-06-2007, 08:39 AM
    sarahbrs
    Re: can the statute of limitations be bypassed in colorado theft cases?
    I don't think this is considered embezzlement. THat money was never entrusted to us, nor did we work for him or with him in any capacity. I think it was simple theft. Money was coming into our personal checking account from a credit card company, that should have been going into someone elses. Instead of calling the new business owner to inform him of the error, we kept quiet and allowed the money to keep coming in. To further complicate things, the checking account in which the improper funds were being deposited, is owned by someone else (my husband's father), my husband was only a signer. Although my Father-In-Law knew nothing of this.
  • 10-06-2007, 09:32 AM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Quote:

    Quoting sarahbrs
    View Post
    I understand your sarcasm. Please understand why I am on this web site at all. I knew nothing about this for the past 8 years. After my husband and I sold our business, he told me a few months later about the checking error and I suggested he get it straightened out. He told me he had. A few years later, I find out he never did. When I asked how much money it was, he said it was peanuts, and would just pay it back if he was discovered. Then 18 months ago, he hits me with the news of us being sued and the amount was $62,000. We are divorced (for obvious raesons) as of a year ago. He told me I was not involved in the law suit since I was not involved in a any way. I am not on that checking account at all, nor was I ever. So for this past year I figured it was HIS problem. Well, he told me yesterday that I am being sued along with him because 2 of the checks (over that 8 year period) were written to me (signed by him). So i look like an accomplice. I was in shock! So now I am in a panic. I am just asking the questions he has been puting out there.

    Sarah,
    This is the definition of embezzlement:

    "Embezzlement is defined in most states as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings."

    The credit cards were set up for your business to receive profit.
    According to you, three of the cards were correctly changed to the new owner.
    One card was not.

    For all you know this account was never addressed by your husband. He was aware of it for 8 years and continued to take money from the new owner.

    So far what you know is very little about what is going on with the business that was sold and how it was being managed. I suggest you maintain a position of knowing nothing about the situation.

    You may contact an attorney to discuss the possibility that you may be included in this law suit. If you are planning to disclose information about this, I suggest that you not do so on a forum that is visible by the public.

    The checks written to you by your husband are not significant- they do not define you as an accomplice.

    Have you been served by the court as part of this law suit?
  • 10-06-2007, 10:01 AM
    sarahbrs
    Re: can the statute of limitations be bypassed in colorado theft cases?
    I was originally served as part of the lawsuit last year. Our lawyer was able to get me out of it since I was not associated in any way with the checking account. Apparently, they have recently gotten the records from the bank and can now see where the money went over the past eight years. That is when they saw the two checks written to me, and now are re-adding me into the lawsuit. My Ex will maintain I knew nothing of it, as will I, but my biggest concern is him going to jail and the loss of income he gives me monthly (we have three children). Am I able to delete this whole forum conversation?
  • 10-06-2007, 10:21 AM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    No one can predict the outcome of your situation. The best person for you to discuss this matter with is your attorney who already knows your case.

    Answer to your question about about SoL:

    SECTION 2. 16-5-401, Colorado Revised Statutes

    16-5-401. Limitation for commencing criminal proceedings and juvenile delinquency proceedings.

    (4) When an offense OR DELINQUENT ACT is based on a series of acts performed at different times, the period of limitation prescribed by this code starts at the time when the last act IN THE SERIES OF ACTS is committed.
    (4.5) The period within which a prosecution must be commenced shall begin to run upon discovery of the criminal act OR THE DELINQUENT ACT for:

    (a) Offenses relating to the "Uniform Commercial Code", pursuant to part 5 of article 5 of title 18, C.R.S.;
    ..........
    (k) Issuing a false financial statement or obtaining a financial transaction device by false statements, pursuant to section 18-5-209, C.R.S.;
    ..........
    (r) Unlawful concealment of transactions, pursuant to section 11-11-105, C.R.S.;

    (s) Embezzlement or misapplication of funds, pursuant to section 11-11-107, C.R.S.;

    (t) Unlawful acts or omissions relating to financial institutions, pursuant to section 11-11-108, C.R.S.;


    Murder, kidnaping, treason, and any forgery regardlessof the penalty provided: No limit
    Attempt, conspiracy, or solicitation to commit murder;

    attempt, conspiracy, or solicitation to commit kidnaping;

    attempt, conspiracy, or solicitation to commit treason; and

    attempt, conspiracy, or solicitation to commit any forgery

    regardless of the penalty provided: No limit

    Other felonies: Three years

    Misdemeanors: Eighteen months

    Class 1 and 2 misdemeanor traffic offenses: One year

    Petty offenses: Six months
  • 10-06-2007, 10:25 AM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Regarding embezzlement, to support a case these must all be met:

    1. The relationship between the defendant and the aggrieved party was a fiduciary one

    2. The lost property came into the defendant’s possession through that relationship

    3. The defendant fraudulently assumed ownership of the property or transferred it into the ownership of another

    4. The defendant’s misappropriation of the property was intentional
  • 10-06-2007, 10:48 AM
    sarahbrs
    Re: can the statute of limitations be bypassed in colorado theft cases?
    I just talked to my Ex. We are NOT being sued for embezzlement. We are being sued for civil theft. My confusion on the SOL is this: Our lawyer told him that the sol is three years in a case like this, meaning, they are only entitled to three years worth of money since they had a responsibility to figure out they were being wronged, and do something about it. THerefore they would NOT be entitled to all 8 years worth. Also, they have filed to have the SOL banned (?) in this case (we found this out yesterday) so apparently they DO feel like it applies to them and are trying to get around it. (Hence my visit to this site) We seem to be talking about two different things, and now I am more confused than ever?!
  • 10-06-2007, 11:31 AM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    You're confused??

    You know exactly what is going on and blame everyone- "credit card company", "my husband", "his accountant", "book keeper", "THey had full access to the truth, they just didn't look"

    First you said "18 months ago, he hits me with the news of us being sued and the amount was $62,000. He told me I was not involved in the law suit since I was not involved in a any way. I am not on that checking account at all, nor was I ever. So for this past year I figured it was HIS problem."

    then you say "yesterday that I am being sued along with him because 2 of the checks (over that 8 year period) were written to me (signed by him). So i look like an accomplice."

    and you change again to say
    "I was originally served as part of the lawsuit last year. Our lawyer was able to get me out of it since I was not associated in any way with the checking account. Apparently, they have recently gotten the records from the bank and can now see where the money went over the past eight years. That is when they saw the two checks written to me, and now are re-adding me into the lawsuit. "

    You said you spent the "next 8 years spending this money and ."we were eventually found out"

    "Money was coming into our personal checking account from a credit card company, that should have been going into someone elses."

    "Instead of calling the new business owner to inform him of the error, we kept quiet and allowed the money to keep coming in."

    and "checking account in which the improper funds were being deposited, is owned by someone else."

    Your question has been answered several times. The SoL begins with the last time you used this man's money.

    Quote:

    Can they get around the statute of limitations in Colorado in a case like this?
    Did you know the laws protect victims not perpetrators?
    The question is CAN YOU GET AROUND the SoL?

    You would be best advised by counsel.
  • 10-06-2007, 11:59 AM
    sarahbrs
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Dear Deadlock,

    You have not been reading the threads, if you had you would see that I only started with "we" because I didn't think the details mattered to my question. I did NOT spend ANY of this money. I only marginally knew about any of this. You , for some reason, are stuck on embezzlement which clearly is not an issue here, which shows me your inability to advise on this. Plus, you are not interested in giving advise, only ragging on people you feel are not worthy of your time. You obviously have issues and are using this forum to release your anger. Some of us need real advise and help, you give neither. If you were the high and mighty person you obvioulsy feel you are, then remove yourself from this forum and try to go give real help somewhere else.
  • 10-06-2007, 12:09 PM
    deadlock
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Quote:

    Quoting sarahbrs
    View Post
    Dear Deadlock,

    You have not been reading the threads, if you had you would see that I only started with "we" because I didn't think the details mattered to my question. I did NOT spend ANY of this money. I only marginally knew about any of this. You , for some reason, are stuck on embezzlement which clearly is not an issue here, which shows me your inability to advise on this. Plus, you are not interested in giving advise, only ragging on people you feel are not worthy of your time. You obviously have issues and are using this forum to release your anger. Some of us need real advise and help, you give neither. If you were the high and mighty person you obvioulsy feel you are, then remove yourself from this forum and try to go give real help somewhere else.

    Hey, I looked statutes for you, I looked up case law for you, I provided definitions for you and you have the nerve to tell me what i am to do? what I am interested in? and something about my anger?

    You better take a good look at what YOU have written on this forum and think twice about making enemies.
  • 10-06-2007, 01:05 PM
    jk
    Re: can the statute of limitations be bypassed in colorado theft cases?
    believe it or not, I have to agree with DL on this with one exception which I already noted. (not a big deal-embezzlement v. theft. it is still a crime)

    I understand what you are trying to convey which is simply concerning the civil suit. You believe they should not be able to claim any theft of funds prior to the 3 year SoL.

    Quote:

    Also, they have filed to have the SOL banned (?)
    Tolled, maybe? That is a stopping of the running of the SoL.

    Any way you look at this, you have serious problems to consider. YOU need to have a criminal attorney at your side. You are only dealing with the civil side of this which only means you may or may not have to pay back some money.

    When the DA gets fired up and brings criminal charges for theft, the both of you are looking at the possibility of jail.

    I do not know if there is law to direct the civil situation as there is the criminal (which would most definately make you liable for the entire 8 years worth) but as I posted before, the discovery rule should be a very big concern to you.

    The discovery rule would place the entire amount as recompensable.

    Run that by your attorney and see what he says.
  • 10-06-2007, 01:59 PM
    sarahbrs
    Re: can the statute of limitations be bypassed in colorado theft cases?
    Dear Jk,

    Thanks for your comments. The long and short of it is this. I have never used these forums before, and was pushed into it last night by a friend who was upset along with me. I never expected these sort of responses, or any for that matter. I did not sit down and give all the details as I did not feel the necessity. I am NOT trying to get out of everything, and understand that all of the money should be paid back. Most of my questions were asked on behalf of my ex and the case against him. I am concerned about the loss of his financial help. The ONLY reason I am here is because I found out yesterday (after 5:00 pm) that I am once again involved in the lawsuit. I tried to call my husbands lawyer but he had left for the day. So I was stuck with the weekend to panic over this. My ex told me that a motion had been filed by the plaintiff's lawyer to somehow bypass the SOl (on their side). THAT is why I was asking these questions. I am trying to figure out what is happening. How the statute of limitations is applicable or not applicable. I AM NOT trying to get around any sol, I am trying to figure out what THEY filed a motion for. My ex has no grasp of what's going on. I plan to call the lawyer first thing Monday morning and go see him (for the first time) ASAP. I was in no way connected to that checking account. I did not know that he wrote those few checks to me with stolen money. I for sure am guilty for keeping quiet, but I thought I was keeping quiet on a much smaller offense. When he got caught, and had to tell me the whole truth of the past eight years, it ended in a divorce. Imposing that on our children was the hardest thing I ever had to do, but his dishonesty scared me more. This conversation has gotten way out of control, I am now being seen as a liar who needs the truth shoved down my throat. That's fine, I scewed up by starting all of this out with "we", I understand that. I am living and learning. Thanks to both of you for your time.

    Deadlock, if you did put a lot of time into this, then I thank you for that. Please understand, this got off to a horrible start and got out of control quickly. I AM taking responsibility for my part. My ex has given me lots of reasons why he will get out of this, questions I in turn posed to you mainly because I wasn't sure he knew what he was talking about. Now I KNOW he doesn't. And the worst thing of all, is I still don't understand what is happening. I will find out this week though. I should have just had patience and left this whole part out of it.
  • 10-07-2007, 07:34 AM
    Mr. Knowitall
    Re: can the statute of limitations be bypassed in colorado theft cases?
    A lot of this discussion revolves around criminal statutes - criminal charges, and criminal statutes of limitation. That's a distraction, because this is a civil case governed by different statutes.

    The statute of limitations is an affirmative defense. If they sue, the defendants must raise that defense or it is waived. It should not be surprising that they didn't respond to that defense before it was raised, as they would have been hoping that it was not raised.

    The civil complaint contains allegations only of theft, and not of fraud?
All times are GMT -7. The time now is 02:43 PM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved