Threatened to be charged with fraud

The situation:

I took an $8000.00 cheque (earnings for business) into the bank 5-6 months ago and deposited into my corporate bank account. The cheque was drawn by a Corporation (lets call them Corp. A) I do business with and the cheque was payable to my Corp (lets call my corp Corp. B). After depositing the cheque I transfered all the funds out of my corporate account and into another, leaving it at $0.00 (which is common practice for me).

Without my knowledge, the cheque ended up not clearing because the bank of Corp. A closed their account before the cheque could clear for whatever reason.

Since I was roughly $8000.00 up, my Bank sent me the usual notices of me requiring to pay the money back.

To try some stuff out, I proceeded with an administrative process of tendering one of their drawn BOE (will not get into that here cause thats not what I'm posting about).

Since my admin. process began I never received any correspondence whatsoever from the bank, and they eventually closed/froze the account (I can't access it), and outsourced it to a collection agency.

Fast forwarding to the present:

I have this smuck of a collection agent calling my house 3 times a day telling me I owe his company the $8000.00and that if I do NOT pay within 150 some odd days the bank will prosecute me for fraud.

Considering I did NOT write the cheque, and had NO knowledge that the cheque would not clear, I've assumed that I have not commited any fraud (setting aside for a moment, my attempt, whether correct or incorrect, at tendering a BOE).

Am I correct in thinking this or does the bank/collection agency have enough grounds to proceed criminally?

Thanks for any input !

-Avatar

In Canada, once a contract has been sold to a third- party debt collector, the contract is null and void because whoever sold it violated one of the iron-clad rules of contract and that is PRIVITY. The debt-collector is a third party trespasser-intervener to the contract whose signature was not on the original contract.

http://www.accaglobal.com/publicatio...countant/36664

The essential elements of a binding agreement are as follows:

offer;
acceptance;
consideration;
PRIVITY;
capacity;
intention to create legal relations;
there must be no vitiating factors

[AndyK]

The threat of a criminal prosecution is intended to scare you into paying the $8K.

In all likelihood, since you did not commit an overt act of freud, the charges wouldn't even makle it past the prosecutor's office.

You do have a reasonable case against whoever issued the check to you and will probably succeed in collecting if you pursue it through a suit agaiinst them. Even the threat of such a suit should make them cave relatively rapidly since you willl sue them for the original amount plus your costs plus the cost of litigation plus court costs plus compensation for your inconveniences.

That is, assuming the company is still in business and has the funds to pay you.

Back to your bank, you really need to talk, face-to-face, with someone there to get the situation straightened out.

The ‘threat’ alone of a criminal prosecution is enough to void any contract because of criminal harassment .. as they are repeatedly communicating with him against his will.

What is stalking and/or criminal harassment? Is it against the law?

Criminal harassment is the legal term for stalking, which is a form of behaviour. It was introduced into Canada’s Criminal Code in April 1993. The purpose of the legislation is to better protect victims of criminal harassment by responding to harassing behaviour with stiffer penalties before more serious harm results. It is defined in section 264 of the Criminal Code as follows:
(1) Criminal Harassment: No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) Prohibited Conduct: The conduct mentioned in subsection (1) consists of:

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

http://www.metrac.org/new/faq_sta.htm

Originally Posted by Avatar

The situation:

I took an $8000.00 cheque (earnings for business) into the bank 5-6 months ago and deposited into my corporate bank account. The cheque was drawn by a Corporation (lets call them Corp. A) I do business with and the cheque was payable to my Corp (lets call my corp Corp. B). After depositing the cheque I transfered all the funds out of my corporate account and into another, leaving it at $0.00 (which is common practice for me).

Without my knowledge, the cheque ended up not clearing because the bank of Corp. A closed their account before the cheque could clear for whatever reason.

Since I was roughly $8000.00 up, my Bank sent me the usual notices of me requiring to pay the money back.

To try some stuff out, I proceeded with an administrative process of tendering one of their drawn BOE (will not get into that here cause thats not what I'm posting about).

Since my admin. process began I never received any correspondence whatsoever from the bank, and they eventually closed/froze the account (I can't access it), and outsourced it to a collection agency.

Fast forwarding to the present:

I have this smuck of a collection agent calling my house 3 times a day telling me I owe his company the $8000.00and that if I do NOT pay within 150 some odd days the bank will prosecute me for fraud.

Considering I did NOT write the cheque, and had NO knowledge that the cheque would not clear, I've assumed that I have not commited any fraud (setting aside for a moment, my attempt, whether correct or incorrect, at tendering a BOE).

Am I correct in thinking this or does the bank/collection agency have enough grounds to proceed criminally?

Thanks for any input !

-Avatar

One does not employ the services of a debt collector if one has a good case for fraud.

That guy is pulling your leg, in my opinion.

You can, however, send him registered mail to stop contacting you, and he must stop, per the FDCPA.

http://www.ftc.gov/os/statutes/fdcpa/fdcpact.htm

Specifically:

§ 806. Harassment or abuse [15 USC 1692d]
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3)1 of this Act.
(4) The advertisement for sale of any debt to coerce payment of the debt.
(5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.

(6) Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller's identity.


and:



§ 805. Communication in connection with debt collection [15 USC 1692c]
(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt --

(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o'clock antimeridian and before 9 o'clock postmeridian, local time at the consumer's location;
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
(3) at the consumer's place of employment if the debt collector knows or has reason to know that the consumer's employer prohibits the consumer from receiving such communication.

(b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than a consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.
(c) CEASING COMMUNICATION. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

(1) to advise the consumer that the debt collector's further efforts are being terminated;

(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or

(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

If such notice from the consumer is made by mail, notification shall be complete upon receipt.
(d) For the purpose of this section, the term "consumer" includes the consumer's spouse, parent (if the consumer is a minor), guardian, executor, or administrator.

FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and **KNOWINGLY** to appropriate the property of another, without a criminal intent.
2. Illustrations. 1. Every appropriation of the right of property of another is not fraud. It must be unlawful; that is to say, such an appropriation as is not permitted by law. Property loaned may, during the time of the loan, be appropriated to the use of the borrower. This is not fraud, because it is permitted by law. 2. The appropriation must be not only unlawful, but it must be made with a knowledge that the property belongs to another, and with a design to deprive him of the same. It is unlawful to take the property of another; but if it be done with a design of preserving it for the owners, or if it be taken by mistake, it is not done designedly or knowingly, and, therefore, does not come within the definition of fraud. 3. Every species of unlawful appropriation, not made with a criminal intent, enters into this definition, when designedly made, with a knowledge that the property is another's; therefore, such an appropriation, intended either for the use of another, or for the benefit of the offender himself, is comprehended by the term.

4. FRAUD, HOWEVER IMMORAL OR ILLEGAL, IS NOT IN ITSELF A CRIME OR OFFENCE, FOR WANT OF A CRIMINAL INTENT. IT ONLY BECOMES SUCH IN THE CASES PROVIDED BY LAW. Liv. System of Penal Law, 789.

FRAUD, contracts, torts. Any trick or artifice employed by one person to induce another to fall into an error, or to detain him in it, so that he may make an agreement contrary to his interest. The fraud may consist either, first, in the misrepresentation, or, secondly, in the concealment of a material fact. Fraud, force and vexation, are odious in law. Booth, Real Actions, 250. Fraud gives no action, however, without damage; 3 T. R. 56; and in matters of contract it is merely a defence; it cannot in any case constitute a new contract. 7 Vez. 211; 2 Miles' Rep. 229. It is essentially ad hominem. 4 T. R. 337-8.

http://www.constitution.org/bouv/bouvier_f.htm