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aGameOfThrones
09-03-2013, 11:33 PM
Bryan police say 25-year-old Cesar Saldivar was supposed to get $992.75 on that payday back in March. Instead, he was paid $99,275.

The after-tax amount deposited in Saldivar's account was $53,221.79, according to a police report.

Investigators say Saldivar withdrew the money from his bank account, and he's refusing to give it back. That's why the 25-year-old is facing criminal charges, even though it was his employer's accounting mistake.

"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department.

(WTF!!!)

Police arrested Saldivar Sunday and charged him with felony theft. He was released after posting a $10,000 bond.

If he's convicted, Saldivar could spend up to 10 years in jail.

Texas Steel Conversion has not gotten their money back yet.


http://www.kbtx.com/home/editorspick/Bryan-Man-Arrested-After-99K-Payroll-Error-220600781.html?device=tablet


Other site....



A man was extremely happy when he received a huge amount of money from his employer.

However, his joy did not last too long after he found out that the money did not come as a bonus for his hard work, but rather through an accounting error.

Cesar Saldivar, 25, of Bryan, Texas, was arrested and charged with theft after being mistakenly paid 100 times more than he should have been paid, but he did not return the money to the company.

Saldivar was paid a whopping $99,275 instead of the $992.75 that was owed to him. It was all due to an accounting error at the Texas Steel Conversion where he worked, according to a police report.
When they realized their mistake, the company attempted to recover the money from Saldivar, but was unsuccessful.

According to the police report, Saldivar told employees of the company that he felt he had not done anything wrong, and he had no money left. He also said that he needed more time to figure out what to do.

Out of the $99,275, approximately $38,000 was deducted from federal income taxes and about $6,000 for Social Security. The net amount deposited in the account was $53,221.79 according to the report.

Saldivar opened a new bank account and deposited $53,221 of the money he received. He also withdrew $20,000 on that day and another $25,000 four days later, according to the report. Saldivar did not actually steal the money, but when he did not return the money, which was deposited into his account, he was charged with theft.

In Texas, theft of property valued between $20,000 and $100,000 is a third-degree felony. Saldivar was released from the Brazos County Jail on $10,000 bail.

http://www.yourjewishnews.com/2013/08/w7622.html

Tod
09-03-2013, 11:35 PM
It was pretty lame of him to not give it back, but not nearly as lame as him being charged with theft.

aGameOfThrones
09-03-2013, 11:38 PM
It was pretty lame of him to not give it back, but not nearly as lame as him being charged with theft.

What about what the government stole? Why isn't it being charged with theft? Right, they have a special permit.

Warrior_of_Freedom
09-04-2013, 01:10 AM
wait wtf? almost half of it was taxed away?

thoughtomator
09-04-2013, 01:27 AM
wait wtf? almost half of it was taxed away?

If Woody had applied for a bank license, this would never have happened.

Jackie Moon
09-04-2013, 03:50 AM
wait wtf? almost half of it was taxed away?

I know right? That's what stood out to me.

I think the guy had to have known it wasn't legit and shouldn't have kept it. He shouldn't be charged with theft though.

The real thief and villain in the story is the federal government for stealing half of someone's paycheck.

asurfaholic
09-04-2013, 04:52 AM
Meh, I would have returned it as soon as I saw the error...

Did the govt return the other half?

69360
09-04-2013, 05:02 AM
seems to me like this is a civil matter, not a criminal case.

helmuth_hubener
09-04-2013, 07:05 AM
This is clearly theft. If one should not be charged with theft when one has committed theft, well then when should one be charged with it?

In what way is it "lame" to charge someone with theft who is committing theft, Tod? Do you not think stealing is criminal, 69360?

Basically, what are you all thinking?

presence
09-04-2013, 07:13 AM
This is clearly theft.
Basically, what are you all thinking?

http://www.bargaineering.com/images/in_posts/bank-error-in-your-favor-monopoly.jpg

Icymudpuppy
09-04-2013, 07:41 AM
For those of you who have never paid federal income taxes for your employees as an employer, let me explain how it works...

1. You figure the amounts due to your employees and the amounts due to the feds.
2. You pay your employee and give him a slip explaining how much has been deducted by the employer to pay the feds later.
3. Usually once a month for a large business, quarterly for a medium business, or annually for a really small business, you pay the feds their share of the paycheck + additional amounts for unemployment, business taxes, etc. These amounts are due at earliest 30 days after the paycheck given to the employee.

Thus, the feds hadn't gotten anything yet.

This guy was asked to return it and he refused. Did you read the article. When he refused to return the money is when it became theft. Before that, it was just an error.

I would bet that the business hired a new bookkeeper that was accustomed to an accounting program setting where the decimal point for cents is automatically inserted in every number so if I type "1" it will come out as $0.01. But the business has their program set to place two zeros at the end of every typed number so typing "1" will result in "$1.00"

69360
09-04-2013, 07:50 AM
This is clearly theft. If one should not be charged with theft when one has committed theft, well then when should one be charged with it?

In what way is it "lame" to charge someone with theft who is committing theft, Tod? Do you not think stealing is criminal, 69360?

Basically, what are you all thinking?

Theft is taking another's property without consent. They willing gave him the money. He did not steal it from them. He had gained possession of the money through their voluntary, though mistaken, action. He did not defraud them to gain possession.

Can they file a civil suit for return of the money? Absolutely and they would win. Was a crime committed? I don't think so.

The guy is being stupid and an asshole, but not criminal.

angelatc
09-04-2013, 08:34 AM
Theft is taking another's property without consent. They willing gave him the money. He did not steal it from them. He had gained possession of the money through their voluntary, though mistaken, action. He did not defraud them to gain possession.

Can they file a civil suit for return of the money? Absolutely and they would win. Was a crime committed? I don't think so.

The guy is being stupid and an asshole, but not criminal.

You might disagree with the law, but it is what it is. You might think that morally it isn't theft, but I'm not even sure how you get there. And in any event the law is pretty clear. In most cases you are not entitled to keep found property until a certain amount of time has passed.

helmuth_hubener
09-04-2013, 08:57 AM
Theft is taking another's property without consent. Yes, agreed.

I don't know how it could be any clearer that Cesar Saldivar does, in fact, have Texas Steel Conversion's property, and that he does not, in fact have that company's consent.


They willingly gave him the money. No, they did not. If they had, this would not be happening.

I didn't think I'd need to make an analogy, I thought it was too obvious, but I was wrong. Here you go:

What if, in handing the clerk at the grocery store a 5 dollar bill your ring slips off and into his hand? You ask for it back. He says no. He won't give it back. He never gives it back. He just keeps your ring for the rest of his life. Is he a thief?

Obviously and without a doubt he is a thief! He has committed the crime of theft. Theft is a crime, 69360. I consider it a crime, you consider it a crime, virtually everyone who believes in the concept of crime at all would place theft into the category of crime.


He did not steal it from them. He is stealing it from them right now! It doesn't matter how the property came to be wrongfully in his possession. It really doesn't. A windstorm could have blown it onto his front yard. But it's not his and so he doesn't get to keep it. And he is intentionally keeping it, knowing it is not his, ignoring requests from its owner to return it. That's criminal. Just because the flood waters sweep the neighbor's Ferrari onto your lawn doesn't mean it is yours now.

Schifference
09-04-2013, 09:16 AM
What Cesar should have done was take the money and put it someplace & not spend it. He could have even decided to move to an undisclosed location. He keeps the money until xxx time has passed. If he is found before xxx time passes give back the money if not found by then keep it.

Schifference
09-04-2013, 09:17 AM
What happens when a Corp has employee profit sharing money and then files bankruptcy? Is that theft?

Schifference
09-04-2013, 09:20 AM
What would happen if Cesar was a private contractor LLC or Corp? He did a job was paid. Then went belly up? Does the steel corp have a criminal charge against the individual or the defunct LLC or Corp?

Acala
09-04-2013, 09:28 AM
Yes, agreed.

I don't know how it could be any clearer that Cesar Saldivar does, in fact, have Texas Steel Conversion's property, and that he does not, in fact have that company's consent.

No, they did not. If they had, this would not be happening.

I didn't think I'd need to make an analogy, I thought it was too obvious, but I was wrong. Here you go:

What if, in handing the clerk at the grocery store a 5 dollar bill your ring slips off and into his hand? You ask for it back. He says no. He won't give it back. He never gives it back. He just keeps your ring for the rest of his life. Is he a thief?

Obviously and without a doubt he is a thief! He has committed the crime of theft. Theft is a crime, 69360. I consider it a crime, you consider it a crime, virtually everyone who believes in the concept of crime at all would place theft into the category of crime.

He is stealing it from them right now! It doesn't matter how the property came to be wrongfully in his possession. It really doesn't. A windstorm could have blown it onto his front yard. But it's not his and so he doesn't get to keep it. And he is intentionally keeping it, knowing it is not his, ignoring requests from its owner to return it. That's criminal. Just because the flood waters sweep the neighbor's Ferrari onto your lawn doesn't mean it is yours now.

Correct.

helmuth_hubener
09-04-2013, 09:52 AM
What Cesar should have done was take the money and put it someplace & not spend it. He could have even decided to move to an undisclosed location. He keeps the money until xxx time has passed. If he is found before xxx time passes give back the money if not found by then keep it. Shot-term gain, long-term destruction. This is your advice?

Destroy your character, make yourself into a worthless human being whom no one can respect, whom no one wants to deal with, whom you yourself do not respect, in order to get $50,000? Is that all your character is worth? You gonna live on that 50 grand the rest of your life?

helmuth_hubener
09-04-2013, 09:55 AM
What happens when a Corp has employee profit sharing money and then files bankruptcy? Is that theft? Bankruptcy is always highly questionable, since it means not paying people that you promised to pay. Who those creditors are -- employees with a profit-sharing plan, vendors, investors -- doesn't really affect the essential problem.

Schifference
09-04-2013, 09:55 AM
Shot-term gain, long-term destruction. This is your advice?

Destroy your character, make yourself into a worthless human being whom no one can respect, whom no one wants to deal with, whom you yourself do not respect, in order to get $50,000? Is that all your character is worth? You gonna live on that 50 grand the rest of your life?
Can't hardly live on the 50K the rest of you life. Legally I don't see the problem with that. Which negates your theft premise. He could keep it and be prepared to return it upon request. If that request never comes then he could legally keep and spend it.

helmuth_hubener
09-04-2013, 09:58 AM
What would happen if Cesar was a private contractor LLC or Corp? He did a job was paid. Then went belly up? Does the steel corp have a criminal charge against the individual or the defunct LLC or Corp?Obviously against Cesar, the individual with their money. They can't have a case against an organization which no longer exists, and you stated it no longer exists. If it did still exist, then yes, they have a claim against the LLC or Corp, because that's with whom they had a contract.

What's up with these questions? What point are you trying to get to?

EBounding
09-04-2013, 09:59 AM
I'm confused why people are debating if this is theft. If your grocery store is giving you change and hands you a $50 bill instead of a $5 bill, do you really walk out with it?

erowe1
09-04-2013, 10:00 AM
He's not getting charged with theft just for the mistake happening through no fault of his own.

He's getting charged with theft because he refused to give it back. Seems right to me. He's a thief.

Schifference
09-04-2013, 10:03 AM
Obviously against Cesar, the individual with their money. They can't have a case against an organization which no longer exists, and you stated it no longer exists. If it did still exist, then yes, they have a claim against the LLC or Corp, because that's with whom they had a contract.

What's up with these questions? What point are you trying to get to?
You state that it is illegal / theft. I don't think a defunct corporation can be sued for being overpaid. The purpose of a corp is to protect the individual so I don't think that the individual could be sued because the individual was not paid the corp was.

EBounding
09-04-2013, 10:03 AM
It's a thorny legal issue, all right.
I'll need to refer to the case of Finders v. Keepers.

phill4paul
09-04-2013, 10:04 AM
Results for being honest and upstanding may vary......

http://www.huffingtonpost.com/2013/09/02/billy-ray-harris-home_n_3855898.html

Billy Ray Harris, Homeless Man Who Returned Diamond Ring, Gets A New Home!


Back in February, while panhandling on a Kansas City street, Billy Ray Harris noticed that a woman had accidentally dropped a diamond engagement ring in his cup, KCTV reported. He debated selling it, but decided to hold onto it instead in case the woman returned, a decision that would prove to change the course of his life forever.

So grateful for his honesty and kindness, Darling and her husband, Bill Krejci, decided to launch a fundraiser for their hero. They hoped to raise about $1,000, but as the word spread of the do-gooder’s kindness, donations starting pouring in. They’ve collected more than $190,000.

Schifference
09-04-2013, 10:05 AM
I'm confused why people are debating if this is theft. If your grocery store is giving you change and hands you a $50 bill instead of a $5 bill, do you really walk out with it?

When the grocery store over charges you is that theft? It happens all the time. They scan an item more than once or charge you the wrong price. Who notices those things? If you pay with plastic like most people do today they could have over or under charged and no one even noticed it.

EBounding
09-04-2013, 10:07 AM
When the grocery store over charges you is that theft? It happens all the time. They scan an item more than once or charge you the wrong price. Who notices those things? If you pay with plastic like most people do today they could be over or under charged and even notice it.

It is if I go up to the service counter and they refuse to reimburse me.

phill4paul
09-04-2013, 10:07 AM
When the grocery store over charges you is that theft? It happens all the time. They scan an item more than once or charge you the wrong price. Who notices those things? If you pay with plastic like most people do today they could be over or under charged and even notice it.

Not when you look at the receipt and ask for a refund and it is given.

erowe1
09-04-2013, 10:07 AM
When the grocery store over charges you is that theft?

If you find out and ask for your money back, and they refuse to give it to you? Of course that's theft.

helmuth_hubener
09-04-2013, 10:07 AM
Legally I don't see the problem with that. "Legally"? Who cares about "legally"? Especially in today's legal situation, when the law is invented and changed day-by-day, made by a pack of rabid criminals, you are going to use "legally" as your moral compass? The whole point is that there's more to life than "legally"!

I would not want to deal with a person who took such a course as you advise. In fact, I would not want to deal with you if you are really giving that advice in seriousness and sincerity. I would try to refuse to deal with such persons. Such persons do not have a future. They are anti-social. They can try to keep their actions secret, but ultimately it will shine through. They dig themselves into a dead-end hole.

Schifference
09-04-2013, 10:15 AM
A person leaves for work & comes home late in the afternoon to find that a new roof was just applied to 3/4 of his house. The contractor mistakingly is putting the roof on the wrong house. Does the homeowner have to pay for the roof? Must the contractor finish the roof he started?

helmuth_hubener
09-04-2013, 10:16 AM
You state that it is illegal / theft. I don't think a defunct corporation can be sued for being overpaid. The purpose of a corp is to protect the individual so I don't think that the individual could be sued because the individual was not paid the corp was. Cesar could form a thousand intermediary corporations who pass the money to each other down the line and ultimately to Cesar. It wouldn't change the fact that his action is theft.

It could make it harder to prosecute, especially if many of the corporations were overseas in various jurisdictions uncooperative to US legal demands.

All your points and advice seems to amount to coming up with ways that Cesar could have more effectively gotten away with it. Which is interesting, I suppose, if it's all academic. But do you agree with me that Cesar's action of keeping this money is wrong? Maybe I should back up first and ask: do you believe in right and wrong?

Schifference
09-04-2013, 10:25 AM
Please note I never said that the guy should keep the money once asked for it. All I said is that I thought it would be legal to keep it until asked for it. Have you ever been shorted in your paycheck? Personally I never even look at a pay statement. The money is direct deposited and I get no paper statement. I would have to go online to check. I don't even know when I get paid. I get paid on Thursday every other week. But don't know if it is this or last week. It doesn't matter to me. The money goes into the checking acct and is not a concern because we never spend more than we make so I don't care. True story. I worked at this organization for over a year. One day I scrutinized the paycheck and realized that for the entire year they failed to pay me an evening / night shift differential that was policy. Did I accuse them of theft? If I had not asked for reconciliation would they be thieves? If xxx years went by before I caught the mistake would they pay me for their mistake? I did get paid but it took several months and it was a sizable amount of money. Would I have been paid if I was no longer an employee or would they have found some loophole to not pay? I don't know the answer to these questions. All I do know is that if that happened to me I might not even know I was overpaid.

Schifference
09-04-2013, 10:29 AM
Maybe I should back up first and ask: do you believe in right and wrong?
Once Cesar was asked for the money he should have verified that it was duly owed and made an agreeable repayment arrangement with the entity.

helmuth_hubener
09-04-2013, 10:41 AM
Once Cesar was asked for the money he should have verified that it was duly owed and made an agreeable repayment arrangement with the entity.No, that is wrong. He knew this payment was a mistake, right? Right. Obviously right. He even did huge actions like starting a new bank account as if he were setting out to intentionally prove and make it undeniable that he knew this payment was a mistake.

The honest thing to do, is to not take the money. You tell the company about the mistake. That is the only honest thing to do.

This is Honesty 101. Did you not have parents? Do you not value honesty as a virtue? Do you know nothing about being a respectable human being? And even if you do not, even if you don't accept any morality nor virtue whatsoever, just from a totally practical self-interested point of view, do you know nothing about what it takes to be successful in a commercial culture such as ours? You don't rip people off! That is a road to ruin and exile.

Schifference
09-04-2013, 11:08 AM
No, that is wrong. He knew this payment was a mistake, right? Right. Obviously right. He even did huge actions like starting a new bank account as if he were setting out to intentionally prove and make it undeniable that he knew this payment was a mistake.

The honest thing to do, is to not take the money. You tell the company about the mistake. That is the only honest thing to do.

This is Honesty 101. Did you not have parents? Do you not value honesty as a virtue? Do you know nothing about being a respectable human being? And even if you do not, even if you don't accept any morality nor virtue whatsoever, just from a totally practical self-interested point of view, do you know nothing about what it takes to be successful in a commercial culture such as ours? You don't rip people off! That is a road to ruin and exile.
Please understand that I only read the first C&P and did not know of any great lengths to hide the money. In post 35 I stated that I might not even know if I was paid correctly. However, some responsibility must go to the company that made the mistake. Pretty sloppy bookkeeping. I would return the money period. I am only debating the "legalities" of keeping it. I returned a purse I found recently. I found a wallet lying in the gutter stuffed with cash and returned it. My only point is that it is not "theft". Theft would be hacking into their system and stealing funds. The roof situation mentioned is a true story. It has happened certainly more than once. A long time ago it happened to a home before I purchased it. Let's scrutinize the roof scenario for a minute. If you were off to work and came home to a mostly new roof did you steal the roof? What if you were home and said nothing while the roofers spent the day putting on your roof? Maybe even offering them a drink of water. Maybe you had just prayed for a new roof because every time it rains you get flooded and the next day the roofers show up. You offer them water and give thanks not realizing that the contractor made a mistake. It is plausible.

helmuth_hubener
09-04-2013, 11:27 AM
My only point is that it is not "theft". If they are asking for it and he is not giving it back -- and that is what's happening -- it is theft.

If you just find the wallet and spend the money, that is dishonesty of a different kind. Perhaps you cannot say it is theft, because no one is claiming it, asking you to give it back. But it is still dishonest to not try to give it back to the rightful owner.

Now sometimes it is not realistic. The wallet has identifying cards or characteristics. If you find a penny in the parking lot, it is probably not possible to find the original owner. I found a hundred dollar bill in a field recently. Seriously. It was kind of weird looking from being so weathered, but it was real. But it was not on a trail, there were no houses very near, and it was just a loose bill with no wallet nor nothing that could be used to identify it. So, there was no realistic way to determine whose it had been. So I kept it. But, now you've got me thinking, and I realize I should at least call the police station and see if anyone reported losing a hundred dollars in that vicinity. So I'll do that now. But most likely they will not have heard anything, and there will be no real path forward to returning it. So it's just abandoned and becomes mine.

The roof thing? No one owed anyone else anything in the beginning. Thus, still no one owes anyone anything. It's a mistake. So putting things back how they were in the beginning makes everything right. Physically, there may be difficulties with doing this. That can be worked out. But morally, and philosophically, there is no challenge.

Smart3
09-04-2013, 11:46 AM
There is no honor among thieves.

69360
09-04-2013, 11:55 AM
Yes, agreed.

I don't know how it could be any clearer that Cesar Saldivar does, in fact, have Texas Steel Conversion's property, and that he does not, in fact have that company's consent.

No, they did not. If they had, this would not be happening.

I didn't think I'd need to make an analogy, I thought it was too obvious, but I was wrong. Here you go:

What if, in handing the clerk at the grocery store a 5 dollar bill your ring slips off and into his hand? You ask for it back. He says no. He won't give it back. He never gives it back. He just keeps your ring for the rest of his life. Is he a thief?

Obviously and without a doubt he is a thief! He has committed the crime of theft. Theft is a crime, 69360. I consider it a crime, you consider it a crime, virtually everyone who believes in the concept of crime at all would place theft into the category of crime.

He is stealing it from them right now! It doesn't matter how the property came to be wrongfully in his possession. It really doesn't. A windstorm could have blown it onto his front yard. But it's not his and so he doesn't get to keep it. And he is intentionally keeping it, knowing it is not his, ignoring requests from its owner to return it. That's criminal. Just because the flood waters sweep the neighbor's Ferrari onto your lawn doesn't mean it is yours now.


It most certainly does matter how the money came into his possession because they charged him with the crime of theft. He didn't steal anything and I don't think he will be found criminally liable.

To successfully prosecute him for theft, they will have to prove that he took the money. He didn't take it, they gave it to him erroneously. You can't just say ex post facto he took it. Theft is the act of taking property with out consent. He didn't get possession of it through embezzlement or fraud either which is intentional deception. They gave it to him in error.

If they were smart, the correct action would be a civil suit for the return of their property.

We all know what the guy is doing and know it's wrong morally, but I don't think he'll be found guilty of theft.

mczerone
09-04-2013, 11:57 AM
This is clearly theft. If one should not be charged with theft when one has committed theft, well then when should one be charged with it?

In what way is it "lame" to charge someone with theft who is committing theft, Tod? Do you not think stealing is criminal, 69360?

Basically, what are you all thinking?

It's not (legally) theft. There was no unlawful taking of the money. He was given the money, perhaps mistakenly, but rightfully. He didn't defraud the bank, he didn't defraud his employer or extort him.

Without that element, it's not theft. It's at most "conversion" - the re-appropriation of rightfully possessed property in a manner inconsistent with the true owner's clearly relayed intentions.

Because it's clear that it was a mistake, and the recipient reasonably knew that the money was transferred erroneously, it's likely that the court will impute the knowledge to the employee that the money should be returned to the employer as a condition of possessing the money.

When he opened the second bank account, it could be claimed that he was just placing the funds in escrow until the error was resolved or discovered. But after he refused to return the money it became a conversion, and a civil case would be the rightful remedy for the employer.

Schifference
09-04-2013, 12:11 PM
Honor? I seem to recall that Ron Paul was criticized for accepting money for his state. He rationalized that his state paid in so he should try to get as much back as possible per the prevailing rules. Furthermore I remember the idea to acquire delegates to win the election. Honestly how honest, moral, or reputable is that? The popular vote is totally against you but you have the winning number of delegates so you win according to the prevailing rules. A moral compass always points the way one wants. Sleaze ball tactics are are sleaze ball tactics but that does not necessarily render them illegal. What would you recommend your loved one do that has fallen on hard times and is debt ridden? Would you discourage them from bankruptcy when they have no job or work 2-3 part time jobs at minimum wage and have trouble buying food? What would you do if you had a business and great personal credit and over time the business needed things so you used you personal credit to inject cash or pay for things the business needed. You employ 25 people. Then after several years the business is no longer viable and you have no job but owe $750,000 in unsecured personal debt. Would you file for bankruptcy? How could you ever repay the creditors? You have nothing and your family of 4 sleeps on the floor in a one bedroom mice infested apartment while you try to recover. Who will rent to you with terrible credit? The business you had has lost favor with the economy so your talents are rendered useless. Would you file bankruptcy?

angelatc
09-04-2013, 12:27 PM
It's not (legally) theft. There was no unlawful taking of the money. He was given the money, perhaps mistakenly, but rightfully. He didn't defraud the bank, he didn't defraud his employer or extort him..

You might want to read the definition of theft.

I encourage noticing that the word "or" is used, instead of "and."




Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property; or
Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen.



Without proof of intent to deprive, no criminal act has occurred. There must be an element of dishonesty which may be revealed from the words or actions of the perpetrator. In California, the Supreme Court has held that proof that a defendant intended to take property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfies the intent element of a theft prosecution in California.


There is no deception required for the definition to apply. He got the money, he knew it did not belong to him, and he has clearly stated his intention to deprive the rightful owner of the property.

It might be considered theft by conversion, (http://definitions.uslegal.com/t/theft-by-conversion/) but it is indeed theft.

Schifference
09-04-2013, 12:39 PM
This seems like theft.
http://www.ronpaulforums.com/showthread.php?426410-59-of-the-%91Tuna%92-Americans-Eat-Is-Not-Tuna

angelatc
09-04-2013, 12:50 PM
This seems like theft.
http://www.ronpaulforums.com/showthread.php?426410-59-of-the-%91Tuna%92-Americans-Eat-Is-Not-Tuna

Only to people who only read the headline.

Schifference
09-04-2013, 12:55 PM
Only to people who only read the headline.

I read the whole thing and my interpretation is that the fish is mislabeled and fraudulently misrepresented as something other than what it is.

satchelmcqueen
09-04-2013, 03:46 PM
yes morally he should give it back. BUT his company screwed up. they should take him to court and try to win. but since it was their mistake, i think the guy legally can keep it. it happened on peoples court twice lol.

RickyJ
09-04-2013, 04:07 PM
When someone gives you a check for worked performed, that is not theft! It does not matter that they didn't mean to give him that much, what matters is they did. He has a right to keep it if he wants to, although giving it back would be the morally right thing to do, but not legally required.

RickyJ
09-04-2013, 04:12 PM
He got the money, he knew it did not belong to him.

When someone gives you something, it does indeed belong to you.

RonPaulFanInGA
09-04-2013, 04:14 PM
If someone dropped a wallet with their driver's license and a lot of money in it, and its owner located the person who found it and asked for it back, but that person said they were going to keep it because of the money, that would be called....?

RickyJ
09-04-2013, 04:22 PM
If someone dropped a wallet with their driver's license and a lot of money in it, and its owner located the person who found it and asked for it back, but that person said they wanted to keep it because of the money, that would be called....?

Finders keepers, losers weepers. Morally, sure they should give it back, legally, possession is 9/10 of the law. The driver's license would have to returned under law, but not the money. The person who lost the wallet would have no way to prove they had money in it anyway.

erowe1
09-04-2013, 04:31 PM
It does not matter that they didn't mean to give him that much

It matters.

69360
09-04-2013, 04:36 PM
If someone dropped a wallet with their driver's license and a lot of money in it, and its owner located the person who found it and asked for it back, but that person said they were going to keep it because of the money, that would be called....?

It would be called a different situation. The person didn't give the wallet to the person who found it.

VIDEODROME
09-04-2013, 04:36 PM
What if this error was from faulty accounting software? Is the computer programmer who wrote a flawed program the Theif?

MelissaWV
09-04-2013, 04:37 PM
A person leaves for work & comes home late in the afternoon to find that a new roof was just applied to 3/4 of his house. The contractor mistakingly is putting the roof on the wrong house. Does the homeowner have to pay for the roof? Must the contractor finish the roof he started?

The contractor should have to make the homeowner whole again. They left for work and their house had a roof on it. They came home and it had 3/4 of a roof on it. I'm not sure how you think this relates to the matter at hand.


yes morally he should give it back. BUT his company screwed up. they should take him to court and try to win. but since it was their mistake, i think the guy legally can keep it. it happened on peoples court twice lol.


When someone gives you a check for worked performed, that is not theft! It does not matter that they didn't mean to give him that much, what matters is they did. He has a right to keep it if he wants to, although giving it back would be the morally right thing to do, but not legally required.

If you get direct deposit from your company, you might want to reread the conditions. Most companies do state that they can go into your bank account and recover overpayments to your account.

RonPaulFanInGA
09-04-2013, 04:39 PM
It would be called a different situation. The person didn't give the wallet to the person who found it.

Did the owner of the company himself give the money to this guy?

erowe1
09-04-2013, 04:40 PM
What if this error was from faulty accounting software? Is the computer programmer who wrote a flawed program the Theif?

No. The person who keeps the money after being asked to return it is.

69360
09-04-2013, 04:41 PM
Did the owner of the company himself give the money to this guy?

Irrelevant, but probably a bookkeeper who was authorized to sign checks did.

angelatc
09-04-2013, 04:49 PM
When someone gives you something, it does indeed belong to you.

No , not necessarily. "Finders keepers" is not a legal term. Posession does not equal entitlement.

Suppose I rent a cottage to you for the week. Does that give you the right to stay for a month? I agree to pay you $500. That does not give you a right to collect $5000.00.

angelatc
09-04-2013, 04:52 PM
A person leaves for work & comes home late in the afternoon to find that a new roof was just applied to 3/4 of his house. The contractor mistakingly is putting the roof on the wrong house. Does the homeowner have to pay for the roof? Must the contractor finish the roof he started?

Having worked for a contractor, I can assure you that the homeowner is entitled to a roof that is as good as or better than the roof that the contractor stole.

angelatc
09-04-2013, 04:56 PM
Please note I never said that the guy should keep the money once asked for it. All I said is that I thought it would be legal to keep it until asked for it. Have you ever been shorted in your paycheck? Personally I never even look at a pay statement. The money is direct deposited and I get no paper statement. I would have to go online to check. I don't even know when I get paid. I get paid on Thursday every other week. But don't know if it is this or last week. It doesn't matter to me. The money goes into the checking acct and is not a concern because we never spend more than we make so I don't care. True story. I worked at this organization for over a year. One day I scrutinized the paycheck and realized that for the entire year they failed to pay me an evening / night shift differential that was policy. Did I accuse them of theft? If I had not asked for reconciliation would they be thieves? If xxx years went by before I caught the mistake would they pay me for their mistake? I did get paid but it took several months and it was a sizable amount of money. Would I have been paid if I was no longer an employee or would they have found some loophole to not pay? I don't know the answer to these questions. All I do know is that if that happened to me I might not even know I was overpaid.

If you read the definition of theft, you'd already know that the person had to be aware he was in possession of property that he was not entitled to hold.

RickyJ
09-04-2013, 05:08 PM
No , not necessarily. "Finders keepers" is not a legal term. Posession does not equal entitlement.

Suppose I rent a cottage to you for the week. Does that give you the right to stay for a month? I agree to pay you $500. That does not give you a right to collect $5000.00.

When the guy got his check he had no way of knowing that this wasn't a bonus. Sure he probably figured it was a mistake, but he had no way of knowing that unless he asked them. The company should stop making mistakes when writing checks out if they don't want this to happen again. The man should have returned the money he was overpaid, but I don't see how he is legally required to do so. He didn't put a gun to their head and say write me a check for this much money. No theft here legally.

angelatc
09-04-2013, 05:12 PM
When the guy got his check he had no way of knowing that this wasn't a bonus. Sure he probably figured it was a mistake, but he had no way of knowing that unless he asked them. The company should stop making mistakes when writing checks out if they don't want this to happen again. The man should have returned the money he was overpaid, but I don't see how he is legally required to do so. He didn't put a gun to their head and say write me a check for this much money. No theft here legally.

He knows he isn't entitled to the money. That's not even in dispute. It isn't his money, it never was his money, and it will never be his money.

I already posted the legal definition of theft. "Force" isn't a factor.

RickyJ
09-04-2013, 05:17 PM
He knows he isn't entitled to the money. That's not even in dispute. It isn't his money, it never was his money, and it will never be his money.

I already posted the legal definition of theft. "Force" isn't a factor.

Yes it is in dispute. Sure he should know, but that doesn't mean that he does know. He might have thought this was a bonus for a job well done.

RickyJ
09-04-2013, 05:22 PM
I already posted the legal definition of theft. "Force" isn't a factor.

When you give something to someone, then demand they give it back, what is that called? Indian giver.
The company made a mistake, but it is not this man's fault they made a mistake. He shouldn't have to suffer for their mistake.

angelatc
09-04-2013, 05:22 PM
Yes it is in dispute. Sure he should know, but that doesn't mean that he does know. He might have thought this was a bonus for a job well done.

Nobody but you, including him, thought that he ever believed he was entitled to the money. You're just making things up.

angelatc
09-04-2013, 05:24 PM
When you give something to someone, then demand they give it back, what is that called? Indian giver.
The company made a mistake, but it is not this man's fault they made a mistake. He shouldn't have to suffer for their mistake.

Are you 12? Indian giver isn't a legal definition, either.

He wouldn't be suffering if he would give them their money back. As it stands, I hope he gets all 10 years.

RickyJ
09-04-2013, 05:27 PM
Are you 12? Indian giver isn't a legal definition, either.


I didn't say it was.

RickyJ
09-04-2013, 05:35 PM
He wouldn't be suffering if he would give them their money back. As it stands, I hope he gets all 10 years.

A jury will have to decide if he is guilty first. A jury of his peers probably won't find him guilty.

A gift becomes the property of the recipient, and the giver has no more rights to it.

You can't steal something that is given to you. :D

presence
09-04-2013, 08:22 PM
he found out that the money did not come as a bonus for his hard work
from op

guilt can be attributed to an individual who acts "purposely," "knowingly," "recklessly," or "negligently."
https://en.wikipedia.org/wiki/Element_%28criminal_law%29#Concurrence






he felt he had not done anything wrong


Mens rea (https://en.wikipedia.org/wiki/Mens_rea) refers to the crime's mental elements of the defendant's intent (https://en.wikipedia.org/wiki/Intent_%28law%29). This is a necessary element—that is, the criminal act must be voluntary or purposeful. Mens rea is the mental intention (mental fault), or the defendant's state of mind at the time of the offense, sometimes called the guilty mind.






A man was extremely happy when he received a huge amount of money from his employer.

A causal relationship between conduct and result is demonstrated if the act would not have happened without direct participation of the offender.[5] (https://en.wikipedia.org/wiki/Element_%28criminal_law%29#cite_note-brittannica-5)

The act may be a "necessary but not sufficient" cause of the criminal harm.






Saldivar told employees of the company that he felt he had not done anything wrong, and he had no money left. He also said that he needed more time to figure out what to do.

Concurrence

Main article: Concurrence (https://en.wikipedia.org/wiki/Concurrence)
In general, mens rea and actus reus must occur at the same time—that is, the criminal intent must precede or coexist with the criminal act, or in some way activate the act. The necessary mens rea may not continually be present until the forbidden act is committed, as long as it activated the conduct that produced the criminal act. However, for criminal liability to occur, there must be either overt and voluntary action or a failure to act when physically able as required by statute or law. [5] (https://en.wikipedia.org/wiki/Element_%28criminal_law%29#cite_note-brittannica-5)









This is a civil issue. The man has committed no crime.

ivflight
09-04-2013, 08:31 PM
I didn't have time to read all the posts, but I didn't see anyone make the point that he may very well have signed a contract with the company indicating that he agreed to fix such errors. I've seen such clauses in multi-page contracts (like loans) before. They ask you to sign a form saying that if there were any obvious spelling or mathematical errors in the contract you agree to facilitate the fix. The same type of clause would likely have appeared in the bank transfer agreement when he and the employer setup the direct deposit (or even when he opened an account there).

This was clearly a math/computer error and he likely was contractually obligated to help fix it.

MelissaWV
09-04-2013, 08:33 PM
I didn't have time to read all the posts, but I didn't see anyone make the point that he may very well have signed a contract with the company indicating that he agreed to fix such errors. I've seen such clauses in multi-page contracts (like loans) before. They ask you to sign a form saying that if there were any obvious spelling or mathematical errors in the contract you agree to facilitate the fix. The same type of clause would likely have appeared in the bank transfer agreement when he and the employer setup the direct deposit.

This was clearly a math/computer error and he likely was contractually obligated to help fix it.

I mentioned it...

Often when you sign up for direct deposit, the paperwork states they have the right to recover any overpayments to your account.

ivflight
09-04-2013, 08:33 PM
I mentioned it...

Often when you sign up for direct deposit, the paperwork states they have the right to recover any overpayments to your account.

Ok, good. To me that's pretty much the end of the discussion...

presence
09-04-2013, 08:37 PM
Ok, good. To me that's pretty much the end of the discussion...

Certainly not.

If that is "the end" then indeed this is a CIVIL issue not a crime. Let them take him to court and recover their overpayments.

ivflight
09-04-2013, 08:45 PM
Certainly not.

If that is "the end" then indeed this is a CIVIL issue not a crime. Let them take him to court and recover their overpayments.

That money is capital just like any other piece of the equipment that belongs to the business. It was transferred by accident and the man took it and won't give it back even though he (very likely) signed a contract indicating he would. If, while at work, some rolls of copper wire accidentally fell into the bed of his truck and he drove off with them and refused to return them I would call that theft too.

Henry Rogue
09-04-2013, 08:56 PM
I was once at a fast food restaurant before a sporting event. The place was very busy and if i were to guess i would say It was the first day on the job for the person standing in front of me behind the counter. All I had on me was a hundred dollar bill and when I handed it to her, I could tell her stress level just doubled. She made change and i actually got more than a hundred dollars in change. I brought this to her attention and we squared up. It didn't occur to me to keep the mistake.

presence
09-04-2013, 09:11 PM
That money is capital just like any other piece of the equipment that belongs to the business.

very well



It was transferred by accident

yes


and the man took it

You can receive but not take a kiss. This man received what in his eyes was a bonus. He didn't TAKE anything.




and won't give it back

He said he coundn't give it back. That is legally quite different from "I won't give it back"


even though he (very likely) signed a contract indicating he would.

This is conjecture, but either way would make it a civil rather than criminal matter.



If, while at work, some rolls of copper wire accidentally fell into the bed of his truck and he drove off with them and refused to return them I would call that theft too.

If that happened and he had SIGNED paperwork stating the wire was legally his, and he installed the wire into his home in clear conscience; no longer had it in hand... thinking innocently that it was his.... once again you have a civil case on your hands not a criminal matter.

RickyJ
09-04-2013, 09:13 PM
This was clearly a math/computer error and he likely was contractually obligated to help fix it.

He was a forklift operator, it wasn't his job to fix their accounting mistakes, and on top of that, he didn't know for sure it was a mistake.
He will be found not guilty if the judge doesn't throw it out of court before that.

krugminator
09-04-2013, 09:24 PM
He was a forklift operator, he wasn't his job to fix their accounting mistakes, and on top of that, he didn't know for sure it was a mistake.
He will be found no guilty if the judge doesn't throw it out of court before that.

Are you saying forklift operators are mildly retarded and can't tell the difference between $1000 and $100,000? Wasn't sure it was mistake? Does he make 5 million dollars a year? He withdrew the money. Who withdraws $50,000 unless its a transfer to another account?

Clearly it's stealing. He should, of course, be fired. I don't know if he should get 10 years in jail, but he should certainly get prison time. It sounds like it took the company a few months to catch the accounting error. The guy is a thief.

RickyJ
09-04-2013, 09:25 PM
Are you saying forklift operators are mildly retarded and can tell the difference between $1000 and $100,000? Wasn't sure it was mistake? Does he make 5 million dollars a year? He withdrew the money. Who withdraws $50,000.


Clearly it's stealing. He should, of course, be fired. I don't know if he should get 10 years in jail, but he should certainly get prison time. It sounds like it the company a few months to catch the accounting error. The guy is a thief.

We will see what the court says about that. I doubt he will be found guilty.

The Free Hornet
09-04-2013, 09:29 PM
STOP READING THIS THREAD UNTIL YOU HAVE READ THE POST BY NEWBITECH! CLICK TO READ AND DON'T FORGET TO REP HIS ASS UP! (http://www.ronpaulforums.com/showthread.php?426384-Guy-gets-paid-100k-when-he-was-supposed-to-get-1k-gets-charged-with-theft&p=5212502&viewfull=1#post5212502)



Questions *I* would ask...

1) What are the tax implications of the income anamoly as this has already been reported to the IRS as income?

2) How does this get squared away without me being bumped into another bracket or witholding?

3) Is this correction/anamoly an IRS audit red flag (http://tax-taxes.knoji.com/tax-audit-triggers/)? Will the company offer me audit protection for a number of years?

4) Do I need a lawyer? Who will pay? Now that I've been arrested and definitely need a lawyer, what are my options for redress? A false arrest would have me seeking six figures in compensation.

5) Workplace scuttlebutt says Payroll Betty blames me and the boss won't look me in the eye and wants to dump me. Texas is an at-will employer (https://en.wikipedia.org/wiki/At-will_employment), do I need or want a formal employment contract? The police and employer are calling me a thief and its not like I had a lot going. And if I have no employment contract, how can I owe them anything? [Edit, I have no idea if the guy is still working.]

6) How do I return the money since it is not like I took it? If I write a check, what are my obligations? Ought there be a formal arrangement and who pays for that? How is this reflected on my tax return?

7) What about the other people I owe money? Like the mafia or worse, child support? Why is the company first in line?


Some more details from another source:


"(The employee) reportedly talked to Saldivar for over 15 minutes and attempted to convince him to return the money," according to the probable cause statement. "He explained to Saldivar that if he returned the money he could avoid any legal action."

According to the document, "Saldivar stated he felt like he did not do anything wrong, he did not have all of the money and needed some time to figure it out."

Bryan police were willing to help.

http://www.beaumontenterprise.com/news/article/Police-Bryan-worker-gets-accidental-huge-4755680.php

So the company addressed zero of my would-be concerns, spent 15 minutes trying to get the money back, and they let the police "help". Fuck them.

krugminator
09-04-2013, 09:30 PM
We will see what the court says about that. I doubt he will found guilty.

I doubt he will get convicted of a felony. Although hopefully he does.

He clearly did wrong and knew he did wrong. My guess is that he will get some sort of punishment.

The Free Hornet
09-04-2013, 09:52 PM
I doubt he will get convicted of a felony. Although hopefully he does.

He clearly did wrong and knew he did wrong. My guess is that he will get some sort of punishment.

10 years in jail will cost Texas about a quarter million dollars. Texas Steel Conversion (http://texassteelconversion.com/) fucked up not going after this in civil court first. I sure as hell wouldn't trust them to convert my steel!

Ooops! This is Texas always whisper when bad mouthing their precious corporations! (http://caselaw.findlaw.com/us-5th-circuit/1177368.html)

RonPaulFanInGA
09-04-2013, 09:58 PM
Yes it is in dispute. Sure he should know, but that doesn't mean that he does know. He might have thought this was a bonus for a job well done.

A bonus around $98,000? Are you kidding me? What bonus is nearly 100 times the pay? Playing that dumb won't fly in court.

Plus it doesn't matter what he "thought." He knows now it is simply not his money.

RickyJ
09-04-2013, 10:11 PM
A bonus around $98,000? Are you kidding me? What bonus is nearly 100 times the pay? Playing that dumb won't fly in court.

Plus it doesn't matter what he "thought." He knows now it is simply not his money.

Because the company says so a month later? The point is he didn't steal anything.

The Free Hornet
09-04-2013, 10:13 PM
A bonus around $98,000? Are you kidding me? What bonus is nearly 100 times the pay? Playing that dumb won't fly in court.

Plus it doesn't matter what he "thought." He knows now it is simply not his money.

But who will need to play dumb in court now that he has been charged with a crime and there could be slamdunk civil suit for false arrest?

Googling around suggests that in most if not all states, the employee is going to be obligated to repay... but:


Under Texas Law, the employer has at least three years to discover an
overpayment and then sue. Once a judgment has been entered by the
court for the amount of the overpayment the employer can execute it.

http://answers.google.com/answers/threadview/id/709876.html

Did they get a judgement?

Another Texas case:


Employees will be given three repayment options: They may give back earned time off; have regular paycheck deductions for up to two years; or make a one-time payment back to the district.

http://abclocal.go.com/ktrk/story?section=news/local&id=8797991

It doesn't sound like, 'give us the money or go to jail, thief!'. Again, lots of evidence that Cesar may have to repay. I have seen nothing to suggest he gets 10 years in jail or that the process starts with criminal - not civil - court.

If he still needs a job, he should offer to pay back with a portion of his wage at zero interest.

newbitech
09-04-2013, 11:40 PM
why didn't he just tell them that he would work it off? Job security. Bargain with them. I am in the camp that if the money was in his account, it was his. No one put a gun to the companies head and forced them to give him that money.

So they made a mistake, happens all the time. You don't get to prosecute someone as a criminal because of YOUR fuckup. That being said, the guy should return the money if he cared about his relationship with his company.

But, he didn't steal the money. He was given the money. How about holding the company accountable for their mistake? And how about the company not calling the cops on an employee? Anyone investigating the person that made the mistake? Make sure this isn't some embezzlement ruse?

krugminator
09-05-2013, 12:22 AM
why didn't he just tell them that he would work it off? Job security. Bargain with them. I am in the camp that if the money was in his account, it was his. No one put a gun to the companies head and forced them to give him that money.

So they made a mistake, happens all the time. You don't get to prosecute someone as a criminal because of YOUR fuckup. That being said, the guy should return the money if he cared about his relationship with his company.

But, he didn't steal the money. He was given the money. How about holding the company accountable for their mistake? And how about the company not calling the cops on an employee? Anyone investigating the person that made the mistake? Make sure this isn't some embezzlement ruse?

Keeping someone like that employed would be like leaving kids to be babysat with a child molester. Keeping that money isn't optional. He wouldn't haven't been a good samaritan. He would have been the equivalent to someone who doesn't rob a bank. This guy was lucky he got any negotiation. The only reason for the business to be nice at all would be if they are worried about not getting paid because a criminal case would bankrupt him in legal fees.

Otherwise, I would call the police immediately and have him arrested and have his accounts frozen.

newbitech
09-05-2013, 01:15 AM
Keeping someone like that employed would be like leaving kids to be babysat with a child molester. Keeping that money isn't optional. He wouldn't haven't been a good samaritan. He would have been the equivalent to someone who doesn't rob a bank. This guy was lucky he got any negotiation. The only reason for the business to be nice at all would be if they are worried about not getting paid because a criminal case would bankrupt him in legal fees.

Otherwise, I would call the police immediately and have him arrested and have his accounts frozen.


poor analogy, unless you are prone to giving your kids away by mistake. I can see where you are just a bit on the hostile side, so I will not elaborate my position. Suffice to say, you would not call the police and have him arrested immediately because the jackass that gave away your money took a couple of months to figure out there was a problem.

BolDiya
09-05-2013, 05:15 AM
The employer must pay him 20% as reward, if he returns the money.

presence
09-05-2013, 06:02 AM
So they made a mistake, happens all the time. You don't get to prosecute someone as a criminal because of YOUR fuckup.

file under:

"Lack of planning on your behalf does not create an emergency on mine."

helmuth_hubener
09-05-2013, 08:20 AM
When the grocery store over charges you is that theft? It happens all the time. They scan an item more than once or charge you the wrong price. Who notices those things? If you pay with plastic like most people do today they could have over or under charged and no one even noticed it.
It is if I go up to the service counter and they refuse to reimburse me. Exactly. This is why when I buy lots of groceries I always stand there (out of the way, but still in the store) and read through my receipt right after I go through the line. Every once in a while, they have not given the sale price for a certain item. Of course, for this to be effective, you have to have been paying attention to the prices of the items as marked on the shelves as you buy them.

"These avacados said they were 50 cents each."

"Really? The computer says a dollar. Let's go over and look. Oh yeah, sure enough."

Anyway, to answer Schifference's question: no, this overcharge is not theft. It is unintentional. Unintentional things happen. Killing someone in a car crash is different than murder (unless the car crash was intentional on your part). And yes, getting too much pay from your employer is different from stealing from him -- unless your getting too much pay was intentional on your part!

helmuth_hubener
09-05-2013, 08:25 AM
I am in the camp that if the money was in his account, it was his. So, possession is 100% of the law in your book?

So if your neighbor gets drunk one night and accidentally parks his Ferrari in your driveway, when you wake up the next morning and see it, you can please feel free to very quickly sell it for $10,000 before he notices. Then at noon when he wakes up, well, tough luck, buddy! Ha, ha! "Lack of planning on your behalf does not create an emergency on mine."

Right guys?

helmuth_hubener
09-05-2013, 08:32 AM
Because the company says so a month later? The point is he didn't steal anything. He actually did steal something. He stole a lot of money. He knew this payment was a mistake. He opened up a brand new bank account to process this paycheck. He as quickly as possible spent the money / hid the money / sent it to Mexico. He then refused to give the money back when the company let him know they'd made a mistake and asked for it back.

This man is a criminal. If criminals can't get charged as criminals, then who, pray tell, can?

Schifference
09-05-2013, 08:57 AM
If criminals can't get charged as criminals, then who, pray tell, can?

Each and every citizen of the United States!

helmuth_hubener
09-05-2013, 09:03 AM
Honor? Yes, honor. That is the key value missing from a lot of the posters here. Honor.


www.youtube.com/watch?feature=player_detailpage&v=M7oG847gAEo#t=467

newbitech
09-05-2013, 09:24 AM
So, possession is 100% of the law in your book?

So if your neighbor gets drunk one night and accidentally parks his Ferrari in your driveway, when you wake up the next morning and see it, you can please feel free to very quickly sell it for $10,000 before he notices. Then at noon when he wakes up, well, tough luck, buddy! Ha, ha! "Lack of planning on your behalf does not create an emergency on mine."

Right guys?

It's circumstantial but generally yeah, if someone gives you something it's yours. I just went thru this with someone albeit not as much money involved, but a very significant item with irreplaceable sentiment attached. There was no written contract, or path forward. My circumstances depended on both parties being honest. We disagreed on the valuation, so there was an impasse. Never once was it considered that someone was a thief. It was completely a civil matter that needed to be worked out. It took some time, but it got worked out.

I believe this case should have been handled the same way. There was no criminal mischief here, the companies feelings were obviously hurt cause they screwed up big time. Doesn't make the benefactor of their mistake a criminal!

but,

another poor analogy, tbh. Yeah, if neighbor leaves his Ferrari up in my property with the keys in it and unlocked, I'm gonna take it for a spin. And yeah, if he left the thing unlocked with the keys in it and an OPEN TITLE, you bet your ass I am claiming the ABANDONED PROPERTY that was ABANDONED on my property.

Facts are facts. The company for whatever reason gave the guy 100,000. Should the guy recognize the mistake and not take advantage of it? That to me is subjective. I say yes, he should recognize the mistake and try to help correct it. But again, fact is, he didn't make a mistake. I am not sure if he was written a check or if he had some kind of direct deposit agreement. Doesn't matter to me in regards to charging him with the crime of theft, since regardless if he was given a check or had some kind of direct deposit agreement, none of his ACTIONS involved him TAKING the money. He RECEIVED the money.

Better analogy, I had you the keys and title to my house and say here take it, it's yours. You move all your stuff in and then several months later I knock on the door with cops accusing you of stealing my keys and title and kicking me out. The cops arrest you and you go to jail and I proceed to toss all your crap to the curb. You thief!

Just cause this guy is/was an employee of the company AND benefited from their mistake, doesn't make him a criminal. Even after the fact, when everyone seemed to agree about the mistake, doesn't mean that he's a criminal because he immediately refused to remedy their mistake, especially when there was no compensation.

Civil, perhaps. Criminal, kind of an insult to the real victims of theft if you ask me.

helmuth_hubener
09-05-2013, 01:04 PM
another poor analogy, tbh. Yeah, if neighbor leaves his Ferrari up in my property with the keys in it and unlocked, I'm gonna take it for a spin. And yeah, if he left the thing unlocked with the keys in it and an OPEN TITLE, you bet your ass I am claiming the ABANDONED PROPERTY that was ABANDONED on my property. Then you have no honor, sir. You simply have no honor.

If you are making decisions like this all the time, you need to take some time for introspection to think about your moral code. Anyway, you won't care about what I say. But your approach to life disgusts me. If everyone around you seems to be untrustworthy (e.g. the problem with the sentimental item you discussed above) just look in the mirror and there is why. Trustworthy people do not like associating with malignantly untrustworthy and mercenary people.

helmuth_hubener
09-05-2013, 01:14 PM
And all you people are so wrapped up in "civil" vs. "criminal". What does that even mean? In my preferred society, a free society, all justice will be restitution-based, so essentially everything is a "civil" matter. Or maybe nothing is. In any case, it's a system where virtually no one is going to prison; instead everyone is working to pay back damages to their victims.

I do not think that Cesar should go to prison. Him being locked up helps no one. But then I do not think any thief should go to prison, in general (as long as they are not an uncoverable insurance risk if left at large). So if people's concern in saying "this should be civil, not criminal" is that they don't think he should be put in prison for years on end, then I can understand your sentiment and I agree. Otherwise, I do not agree. Theft by keeping and theft by taking are the same thing. Either one could be accidental. And either one could be intentional. This one, Cesar has clearly demonstrated by his actions, was intentional. There is no question about that. He can say "Oh, I don't think I did wrong" all day. But that's just due to his twisted moral code, not a lack of malicious intent. Our own newbitech would say "Oh, I don't think I did wrong" after he steals my misplaced Ferrari, but again, that's just due to his twisted moral code.

helmuth_hubener
09-05-2013, 01:17 PM
And again, in the ideal free society, legally it probably should matter very little (if at all) in the case of money and property transfers whether it was accidental or intentional. The goal is just to make the victim whole. Not to punish slimeballs.

But morally, it matters a lot. And for acceptance in polite society vs. shunning, it should matter a lot.

newbitech
09-05-2013, 01:21 PM
Then you have no honor, sir. You simply have no honor.

If you are making decisions like this all the time, you need to take some time for introspection to think about your moral code. Anyway, you won't care about what I say. But your approach to life disgusts me. If everyone around you seems to be untrustworthy (e.g. the problem with the sentimental item you discussed above) just look in the mirror and there is why. Trustworthy people do not like associating with malignantly untrustworthy and mercenary people.

You question my honor in a hypothetical scenario? WTF is that? Why are you trying to be my psychologist?

If I didn't care about what you say, I wouldn't bother to respond. My approach to life has nothing to do with you, so blaming your disgust on me is irresponsible IMO. What is the deal with you taking my anecdote completely out of context and then proceeding to attack my personal relationships that you really have no clue about?

I think you are a little off the hinges over this issue. I tried to show you how this case could have easily been resolved in a civil way without involving police or imprisoning someone who did not put anyone's life or property in jeopardy.

There are all kinds of other serious questions that need to be asked in a situation like this. We don't have all the details to be jumping to conclusions. Making rash, outlandish, and unsubstantiated accusations against people IS a dishonor to one's self. Taking your idiot neighbors car for a spin around the block after he left it in your driveway, unlocked is not theft. Selling a car in which you possess the title, the keys, and the car is also not theft.

Perhaps people and companies should be more responsible with their own property and not disrupt my life with their stupid mistakes? Perhaps those same people should find more rational and civil ways of dealing with the consequences of their mistakes instead of banging on my door making demands?

ItsTime
09-05-2013, 01:26 PM
For those of you who have never paid federal income taxes for your employees as an employer, let me explain how it works...

1. You figure the amounts due to your employees and the amounts due to the feds.
2. You pay your employee and give him a slip explaining how much has been deducted by the employer to pay the feds later.
3. Usually once a month for a large business, quarterly for a medium business, or annually for a really small business, you pay the feds their share of the paycheck + additional amounts for unemployment, business taxes, etc. These amounts are due at earliest 30 days after the paycheck given to the employee.

Thus, the feds hadn't gotten anything yet.

This guy was asked to return it and he refused. Did you read the article. When he refused to return the money is when it became theft. Before that, it was just an error.

I would bet that the business hired a new bookkeeper that was accustomed to an accounting program setting where the decimal point for cents is automatically inserted in every number so if I type "1" it will come out as $0.01. But the business has their program set to place two zeros at the end of every typed number so typing "1" will result in "$1.00"

Thank you for typing this. I was being lazy and waiting for someone else to explain it haha.

RickyJ
09-05-2013, 01:43 PM
And again, in the ideal free society, legally it probably should matter very little (if at all) in the case of money and property transfers whether it was accidental or intentional. The goal is just to make the victim whole. Not to punish slimeballs.

But morally, it matters a lot. And for acceptance in polite society vs. shunning, it should matter a lot.

Morally the guy is wrong to keep the money, no doubt about it. However legally he did nothing wrong. In a civil case he will have to pay some or all of it back, but in a criminal case it very well could get thrown out by the judge before a jury even gets a chance to hear it. There is only a very small chance he will get convicted of theft here.

angelatc
09-05-2013, 01:47 PM
Morally the guy is wrong to keep the money, not doubt about it. However legally he did nothing wrong. In A civil case he will have to pay some or all of it back, but in a criminal case it very well could get thrown out by the judge before a jury even gets a chance to hear it. There is only a very small chance he will get convicted of theft here.

Often wrong, never in doubt.

What he did is indeed legally wrong. There won't be a civil case. It is already a criminal case.

RickyJ
09-05-2013, 01:49 PM
Often wrong, never in doubt.

What he did is indeed legally wrong. There won't be a civil case. It is already a criminal case.

We will see, how much money are you willing to risk to back up your position?

angelatc
09-05-2013, 01:50 PM
.

Facts are facts. The company for whatever reason gave the guy 100,000. Should the guy recognize the mistake and not take advantage of it? That to me is subjective. I say yes, he should recognize the mistake and try to help correct it. But again, fact is, he didn't make a mistake. I am not sure if he was written a check or if he had some kind of direct deposit agreement. Doesn't matter to me in regards to charging him with the crime of theft, since regardless if he was given a check or had some kind of direct deposit agreement, none of his ACTIONS involved him TAKING the money. He RECEIVED the money.
.

Did you read the legal definition of theft? He didn't need to take it - receiving it, knowing he received it, and refusing to return it meets the definition.

angelatc
09-05-2013, 01:50 PM
why didn't he just tell them that he would work it off??

Why didn't he just give it back? Its not like they came after him years after the fact.

And I would think that the working it off scenario would violate labor laws.

helmuth_hubener
09-05-2013, 01:53 PM
You question my honor in a hypothetical scenario? WTF is that? Why are you trying to be my psychologist? You seemed to be stating, in all seriousness, and with 100% confidence, exactly what you, personally, would definitely do were you faced with such a situation. If you did not mean to be taken so literally, or are now having second thoughts about what you really truly would do if you were to find your neighbor's expensive car parked in your driveway one day, by all means feel free to take back what you said.

"Yeah, if neighbor leaves his Ferrari up in my property with the keys in it and unlocked, I'm gonna take it for a spin. And yeah, if he left the thing unlocked with the keys in it and an OPEN TITLE, you bet your ass I am claiming the ABANDONED PROPERTY that was ABANDONED on my property."

This action, if done, would be an honor-less action. It would disgrace anyone who did it.

Taking your statement at face value, yes, such an attitude is a disgrace to any man and lacks any sense of honor.

helmuth_hubener
09-05-2013, 02:00 PM
Morally the guy is wrong to keep the money, no doubt about it. However legally he did nothing wrong. In a civil case he will have to pay some or all of it back, but in a criminal case it very well could get thrown out by the judge before a jury even gets a chance to hear it. There is only a very small chance he will get convicted of theft here. Ahh, now I understand. So you are just providing color commentary for the court case. Pre-game analysis, as it were. Who will win, who will lose?

Well, you may be right, you may be wrong. I am no lawyer, and the law is so out-of-whack you could be right. I would predict that angelatc is more likely to be right, but who is to say? That's one big problem with this statist monopoly legal system: predictability of the law went out the window a long time ago. In a sensible competitive justice system, any layman would be able to predict with confidence the rough outcome of a case, given the facts. (The outcome in this case would be that the overpaid employee must pay back the money to his employer, by the way. It's just that simple.) Predictability has fallen victim to the ridiculous justice monopoly we call the state.

newbitech
09-05-2013, 02:01 PM
Often wrong, never in doubt.

What he did is indeed legally wrong. There won't be a civil case. It is already a criminal case.

But is legally wrong == criminally wrong? I don't think so. My problem here is that the company called the police and the police actually went through the guy's bank records. Was there a warrant for that?

I'd like to know exactly how the guy was supposed to return this money? Was he supposed to write a check for 50k or whatever?

Was he supposed to go with draw cash and take it to them?

Also, would like to know why the company didn't put a stop payment on the check or attempt to use the FDIC rules for recovering electronic ETF if it was direct deposit. In both cases, the guy's bank account where the money was originally deposited would have overdraft if he moved the money before they tried to take it back.

We know that kind of money doesn't clear the bank immediately, so I'd also like to know how long the company dawdled before they tried to recover that alleged "stolen" property.

We don't really have a time line, and I am not sure of the Texas law, but the Florida law in regards to abandoned property says after 60 days the abandoned property is yours. Of course the way that works is, you have to notify the authorities of the abandoned property. In this case, I am not so sure that the property was even abandoned. I've yet to hear the company explain their mistake. All I have read is that someone from the company actually went to the guys house to try and get the money. That right there seems pretty sketchy to me. Then they got him on the phone, spoke to him for 15 minutes and threatened him with legal action.

Again, what was the guys supposed to do? Write a check? Withdraw the funds? Nothing I have read indicated to me that he has spent the money, only says he moved it around and withdrew the cash. He told folks apparently he needed more time to work it out. Perhaps he was trying to figure out where he stood legally? Perhaps he wanted to make sure that whatever happened to the money it was properly accounted for? Who knows?

But arresting the guy and throwing him in jail and accusing him of stealing doesn't seem to be supported anywhere in anything that I have read, legal or otherwise. Also do note that he posted the 10k bond, so I kind doubt he spent all the money. I wouldn't be surprised if he was taking his time trying to figure out what to do and gain some peace of mind in the situation after being threatened by the company. Perhaps he spent some of the money, but no where do I see any evidence of what he may have bought or done with it.

Best case I think for the company is they get a civil judgement. No way should he be facing criminal charges for keeping something that was given to him. Even if it was given to him by "mistake".

newbitech
09-05-2013, 02:11 PM
You seemed to be stating, in all seriousness, and with 100% confidence, exactly what you, personally, would definitely do were you faced with such a situation. If you did not mean to be taken so literally, or are now having second thoughts about what you really truly would do if you were to find your neighbor's expensive car parked in your driveway one day, by all means feel free to take back what you said.

"Yeah, if neighbor leaves his Ferrari up in my property with the keys in it and unlocked, I'm gonna take it for a spin. And yeah, if he left the thing unlocked with the keys in it and an OPEN TITLE, you bet your ass I am claiming the ABANDONED PROPERTY that was ABANDONED on my property."

This action, if done, would be an honor-less action. It would disgrace anyone who did it.

Taking your statement at face value, yes, such an attitude is a disgrace to any man and lacks any sense of honor.

don't leave your junk on my land. that simple. if you do, don't accuse me of stealing if I decide to do what I want with crap someone else left on my land. Not sure where there is any honor or disgrace from me minding my own business and doing what I want to do on my property.

But, this analogy doesn't come close to what I see happened in this case. You can't sell a car without a signed title. If you leave a signed title in your car and park it in my yard with the keys in it, all I need to do to make it mine is write $1000 on it, pay my $70 tax and sign my name and its mine. That's Florida, but I suspect the laws are similar everywhere in the US.

Perhaps my willingness to take my neighbors actions at face value rather than being inquisitive as to his motivations is what bothers you? I already stated that if something like this happened to me with people I have business relationships with that I would work with those folks to resolve the matter, because I want to keep the relationship.

Perhaps this man did not value his relationship with his employer? Again that is subjective. Maybe the man thinks the company owed him? Maybe he got hurt on the job and was denied his claim? Maybe the company officers were trying to black ball him in his career? Who knows? Does it matter tho? They gave him that money and he believed it was some kind of payment that he felt was rightfully his. By all accounts he had 100% control of the money and the company had to resort to thug tactics by going to his house in person and threatening him with legal action.

At that point, no way in hell am I giving the money back. Instead, i use it to defend myself since the company apparently already has displayed an ineptitude in dealing with financial matters as well as a willingness to resort to strong arm tactics and blame others for their screw ups.

angelatc
09-05-2013, 02:16 PM
But is legally wrong == criminally wrong? I don't think so.

Again, did you read the definition of theft? What he did is indeed considered theft, and theft is a criminal offense. If the money was direct deposited, and he didn't realize his balance had increased dramatically - it wouldn't be theft.

Once he knew about it, and refused to return it, it is indeed theft.

I forget the time involved, but it really makes no difference unless he is asserting that the statute of limitations has expired, which he isn't.

RickyJ
09-05-2013, 02:19 PM
Again, did you read the definition of theft? What he did is indeed considered theft, and theft is a criminal offense. If the money was direct deposited, and he didn't realize his balance had increased dramatically - it wouldn't be theft.

Once he knew about it, and refused to return it, it is indeed theft.

Again you are just plain wrong. He did not refuse to return it, he said that he did not have all the money and needed some time to think about it. They talked to him for only 15 minutes, then called the police.

helmuth_hubener
09-05-2013, 02:20 PM
don't leave your junk on my land. that simple. if you do, don't accuse me of stealing if I decide to do what I want with crap someone else left on my land. Not sure where there is any honor or disgrace from me minding my own business and doing what I want to do on my property. Oh, no, perish the thought that anyone might accuse you of stealing! You find an expensive car in your driveway, what do you do? "Hey, Christmas in September! No worries! Let's go rifle through the glove compartment and see if we can find the title. Whee!"

Is that is truly what you would do, newbitech? Yes, you find the title in the glove box, the guy is too trusting I guess, would you truly quick sell his car?

angelatc
09-05-2013, 02:35 PM
Again you are just plain wrong. He did not refuse to return it, he said that he did not have all the money and needed some time to think about it. They talked to him for only 15 minutes, then called the police.

His employer said they made multiple attempts to get him to return the money. There was literally nothing for him to think about, except how to steal the money while staying out of prison. We already know this man is a thief, so there's no reason to assume he isn't also a liar.

The police don't just go arrest people. They investigated the complaint, including interviewing him and also his co-workers. Then they arrested him.


Investigators say Saldivar withdrew the money from his bank account, and he's refusing to give it back. That's why the 25-year-old is facing criminal charges, even though it was his employer's accounting mistake.


"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department.


Police arrested Saldivar Sunday and charged him with felony theft. He was released after posting a $10,000 bond.



Sure. He had $10,000 laying around for bail, but didn't have any money to give to his former employer.

newbitech
09-05-2013, 02:42 PM
Again, did you read the definition of theft? What he did is indeed considered theft, and theft is a criminal offense. If the money was direct deposited, and he didn't realize his balance had increased dramatically - it wouldn't be theft.

Once he knew about it, and refused to return it, it is indeed theft.

I forget the time involved, but it really makes no difference unless he is asserting that the statute of limitations has expired, which he isn't.

"the" definition? Not sure which definition we are using TBVH. IRS are thieves right? but legally they are not. We use a completely different definition of theft. She stole my heart, but she isn't going to jail.

I found a couple articles on this case. Both very sparse with details. From the details I read, he is asserting he did nothing wrong. In fact, from the meager details I read, sounds like the company is incompetent in more than just accounting.

newbitech
09-05-2013, 02:49 PM
Oh, no, perish the thought that anyone might accuse you of stealing! You find an expensive car in your driveway, what do you do? "Hey, Christmas in September! No worries! Let's go rifle through the glove compartment and see if we can find the title. Whee!"

Is that is truly what you would do, newbitech? Yes, you find the title in the glove box, the guy is too trusting I guess, would you truly quick sell his car?

It's more than just an accusation in this case, they rifled through the guys bank account, that was in the article. You good with that? Didn't see where they had a search warrant either.

You still on with the car analogy? Yeah, someone leaves a car on my property first thing I do when I recognize the car is incompetent drunk ass neighbor from down the street is open the door and look for the keys. And yeah if the title is signed by my neighbor and in the car, I'm taking it. If he wants it back, he can first of all begin by explaining what the hell he is doing. Then he can beg me to give it back to him and pay my storage fee of whatever amount I deem appropriate.

If he don't like it, he can feel free to sue me, I will gladly take that to court. But, call the cops and accuse me of stealing? Don't think so. Only an incompetent sheriff would take me to jail over that. Or a sheriff who was a brother of the drunk down the street.

newbitech
09-05-2013, 03:02 PM
Why didn't he just give it back? Its not like they came after him years after the fact.

And I would think that the working it off scenario would violate labor laws.

Maybe he had no way to give it back? Maybe he didn't have a check? Maybe he didn't want to risk getting arrested for carrying around 20k in cash while the spot light was on him, hell he'd already been threatened? Maybe he believe the money was owed to him? Maybe he didn't know who to make the check out to?

Who knows why he didn't "comply" with the door knock visit or drop everything he was doing to straighten out this incompetent company's financial shenanigans. Why didn't the company reverse the direct deposit? Why didn't the company cancel the check?

All kinds of questions the story didn't answer. Regardless of all that, I don't think a thief is someone who receives his loot from his victims from their own free will.

angelatc
09-05-2013, 03:04 PM
"the" definition? Not sure which definition we are using TBVH. IRS are thieves right? but legally they are not. We use a completely different definition of theft. She stole my heart, but she isn't going to jail.

I found a couple articles on this case. Both very sparse with details. From the details I read, he is asserting he did nothing wrong. In fact, from the meager details I read, sounds like the company is incompetent in more than just accounting.

I cited a legal definition of criminal theft. The IRS is legally allowed to take our money. We might disagree that they should be allowed to, but at this point what they're doing isn't illegal because there is a law that says they can.

LIke it or not, people make mistakes. Except maybe you, I guess. I have never over paid an employee, but I've shorted a couple. I've also paid invoices to vendors twice, and made tons of other mistakes over the course of my professional career. I have left my wallet on the supermarket checkout. (Note that the store did not assert they were entitled to keep my cash because I willingly deposited it there.)

I have also found embezzlers, and fixed mistakes that other people have made. Fortunately for all of us, there's no law against making mistakes.

Note that when he signed his direct deposit agreement, he acknowledged such a thing might happen and even gave the company written permission to retrieve their funds in the unlikely event that it happened.

I understand that he is asserting that he did nothing wrong. I never met anybody who was stealing that confessed what they were doing was wrong. Criminals always plead innocence as a matter of course. But he is wrong. He took money that did not belong to him, and won't give it back. That's a criminal offense. I get that you think that he has a moral right to keep the money, and that it should not be a criminal offense. I disagree, but even so, the point remains that it is indeed a criminal offense.

EBounding
09-05-2013, 03:07 PM
Do we really want to live in a world where if you accidentally overpay someone, you have no recourse to get your money back?

RickyJ
09-05-2013, 03:07 PM
His employer said they made multiple attempts to get him to return the money. There was literally nothing for him to think about, except how to steal the money while staying out of prison. We already know this man is a thief, so there's no reason to assume he isn't also a liar.

The police don't just go arrest people. They investigated the complaint, including interviewing him and also his co-workers. Then they arrested him.



Sure. He had $10,000 laying around for bail, but didn't have any money to give to his former employer.

15 minutes on the phone and then calling the police is not "multiple attempts" unless you are counting each minute as an attempt.

The Free Hornet
09-05-2013, 03:10 PM
STOP READING THIS THREAD UNTIL YOU HAVE READ THE POST BY NEWBITECH! CLICK TO READ AND DON'T FORGET TO REP HIS ASS UP! (http://www.ronpaulforums.com/showthread.php?426384-Guy-gets-paid-100k-when-he-was-supposed-to-get-1k-gets-charged-with-theft&p=5212502&viewfull=1#post5212502)




Again, did you read the definition of theft? What he did is indeed considered theft, and theft is a criminal offense. If the money was direct deposited, and he didn't realize his balance had increased dramatically - it wouldn't be theft.

Once he knew about it, and refused to return it, it is indeed theft.

I forget the time involved, but it really makes no difference unless he is asserting that the statute of limitations has expired, which he isn't.

It *WAS* direct deposit ("received his direct deposit paycheck in February (http://www.beaumontenterprise.com/news/article/Police-Bryan-worker-gets-accidental-huge-4755680.php)"). Per your prior posting, the definition was:


1 Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
2 Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property; or
3 Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen.

3 is out. 2 is out as no deception was used. 1 is left? Nothing was unauthorized. Nor did he deprive the owner. They deprived themselves. Not returning money might be considered deprivation at some point but - AFAIK - they need a formal judgement of exactly what is to be returned. Hell, I wouldn't even know how to calculate what the amount should be (money goes to SS, 401k, and my checking - maybe a dental thing too). Spending 15 minutes on the phone to untangle this tells me the company is not that serious about getting their money back. This will likely cost them more if they are sued for incompetence and defamation. More so, Texas Steel Conversion (http://texassteelconversion.com/) may lose the trust of their existing employee and customer base.

Besides, this is TX not CA. Too bad the CA illegal alien lawyer isn't nearby!

This is the applicable definition (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.31.htm):


PENAL CODE

TITLE 7. OFFENSES AGAINST PROPERTY

CHAPTER 31. THEFT

[CLICK LINK BELOW - IT WAS TOO LONG TO POST]

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.31.htm

The state of Texas is looking to deprive (YIKES! THEFT!) the taxpayers of the quarter million to imprison, plus what the lawyers, judge, and police get during this ordeal. Think of the hungry parole officers with nothing to do but badger people who get unexpected windfalls from stupid employers. If we don't stop this now, who knows where this can lead. It might happen again in 5 years, 10 years, but can we take that chance??? Never again! Always remember! What slogan do I need to know to prosectute this guy?

A private company is using the police instead of the civil court system. If you think this ends with Cesar, think again.

A few people here were suckered by a false, inappropriate analogy given by the police of all people:


"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department.

First, the money is not "on the register" but in his private bank account. If a physical thing is needed, imagine finding the money on your kitchen table. Second, "you know it's not yours". How do you know since it was given to you and is now in your possession? Some found things can be kept (like if he was sent 100k in gold coins unsolicited in the mail - "If you open the package and like what you find, you may keep it for free. In this instance, 'finders-keepers' applies unconditionally." (https://postalinspectors.uspis.gov/investigations/MailFraud/fraudschemes/othertypes/UnsolicitedFraud.aspx)), others not. Third, "find the owner" - LOL - the owner knows who they are and has detailed records of who the money went to and why. Anything you tell them is something they already have knowledge of.

But for a good definition of theft,


theft
noun \ˈtheft\
Definition of THEFT
1
a : the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it
b : an unlawful taking (as by embezzlement or burglary) of property

http://www.merriam-webster.com/dictionary/theft


steal
verb \ˈstēl\
stole sto·len steal·ing
Definition of STEAL
intransitive verb
1
: to take the property of another wrongfully and especially as a habitual or regular practice

http://www.merriam-webster.com/dictionary/stealing

Those things didn't happen. If Cesar was annoying Payroll Betty while she typed the numbers, then maybe there would be some intent. There is nothing! The a-hole employer needed to get a civil judgement. Since Cesar left the job after this, he might have been owed his vacation time as pay (if it was company policy to pay out and if he had any accumulated) and that would affect the amount returned.

RickyJ
09-05-2013, 03:13 PM
Do we really want to live in a world where if you accidentally overpay someone, you have no recourse to get your money back?

Do we really want to live in a world where someone can claim they overpaid someone and then have them charged with theft if they don't get it immediately? A claim is just that, a claim, it is not a fact. Civil courts are used to settle disputes like this, not criminal courts. No one is saying there is not a legal way for the company to get the money back.

The Free Hornet
09-05-2013, 03:14 PM
Do we really want to live in a world where if you accidentally overpay someone, you have no recourse to get your money back?

There is recourse. It happens frequently enough. If it is not worked out among the parties involved, you go to the courts, not the cops. If there is a union or existing employment contract, you might hammer out the details with emloyees or their representatives.

YOU are begging "to live in a world" where the recourse to a civil dispute is that the corporation, company, rich guy calls the cops and you are jailed.

aGameOfThrones
09-05-2013, 03:17 PM
I cited a legal definition of criminal theft. The IRS is legally allowed to take our money. We might disagree that they should be allowed to, but at this point what they're doing isn't illegal because there is a law that says they can.



Show Me The Law?


Haha

angelatc
09-05-2013, 03:21 PM
Do we really want to live in a world where someone can claim they overpaid someone and then have them charged with theft if they don't get it immediately? A claim is just that, a claim, it is not a fact. Civil courts are sued to settle disputes like this, not criminal courts. No one is saying there is not a legal way for the company to get the money back.

Civil courts are for contract disputes. When you steal, you don't get to whine about which court the victim chooses to pursue restitution. The guy isn't claiming that he was not overpaid, so thats a moot point anyway. He is just trying to keep money that wasn't owed to him.


Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:


(1) it is without the owner's effective consent;



The bookkeeper did not ever own the money. The owner of the company did not consent to give the employee that much money. Therefore the money was unlawfully appropriated. But it only became a crime when he refused to give the money back, because then he was intentionally depriving the owner of the property.

The Free Hornet
09-05-2013, 03:21 PM
Note that when he signed his direct deposit agreement, he acknowledged such a thing might happen and even gave the company written permission to retrieve their funds in the unlikely event that it happened.

You have no proof of this. Even if you did, that would be for the civil court. And more so, I have evidence it doesn't mean shit!:


I also authorize Career Connections to make withdrawals from this account in the event that acredit entry is made in error.

http://www.careerconnections.info/Direct_Deposit_Agreement_Form.pdf

All you authorize is for withdrawals to be made! There is jack-shit to suggest you keep the money there for that purpose. Nor are you promising to return payroll errors. If anything, you are suggesting another reason it is not theft.

newbitech
09-05-2013, 03:22 PM
I cited a legal definition of criminal theft. The IRS is legally allowed to take our money. We might disagree that they should be allowed to, but at this point what they're doing isn't illegal because there is a law that says they can.

LIke it or not, people make mistakes. Except maybe you, I guess. I have never over paid an employee, but I've shorted a couple. I've also paid invoices to vendors twice, and made tons of other mistakes over the course of my professional career. I have left my wallet on the supermarket checkout. (Note that the store did not assert they were entitled to keep my cash because I willingly deposited it there.)

I have also found embezzlers, and fixed mistakes that other people have made. Fortunately for all of us, there's no law against making mistakes.

Note that when he signed his direct deposit agreement, he acknowledged such a thing might happen and even gave the company written permission to retrieve their funds in the unlikely event that it happened.

I understand that he is asserting that he did nothing wrong. I never met anybody who was stealing that confessed what they were doing was wrong. Criminals always plead innocence as a matter of course. But he is wrong. He took money that did not belong to him, and won't give it back. That's a criminal offense. I get that you think that he has a moral right to keep the money, and that it should not be a criminal offense. I disagree, but even so, the point remains that it is indeed a criminal offense.


you also said this.


http://www.ronpaulforums.com/showthread.php?426384-Guy-gets-paid-100k-when-he-was-supposed-to-get-1k-gets-charged-with-theft&p=5210055&viewfull=1#post5210055

So perhaps you are making a legal and a moral argument? I think you are on slippery moral slope already if you can justify locking someone up as a thief simply for receiving an item from someone who gave it on their own free will and refusing to give it back under duress. I don't think it matters if that person gave that item by mistake or not. If the relationship between the two parties was better, this wouldn't be a story. From the sparse details I have read, the employer seems to be the party responsible for putting the strain on the relationship.

As for legal, I think you are also on slippery slope because you are applying a definition to case that you have scant facts on. You are making a prejudicial conclusion without any evidence.

First thing you need to check before you can be on the right legal course is, did the "investigators" have a search warrant? I suspect the banking institutions themselves were complicit in turning over this man's bank records as part of a fraud investigation initiated by the company when someone besides the accountant discovered the missing cash.

He very well could be a thief and it could be much more than him simply not returning money that was deposited to him by mistake. You don't know either way. So kind of hard to even consider any legal implications without even really knowing the nature of the case.

Sure he was arrested and jailed for grand theft. What was the probable cause? That he said "no" i believe I have a right to this money that was placed at will into my bank account? Come on.


edit: oops sorry, I didn't realize who I was responding to. Yeah, I am a little confused if the argument is legal or moral, sorry about that. Please accept my apology. trying to keep up :(

newbitech
09-05-2013, 03:25 PM
Do we really want to live in a world where if you accidentally overpay someone, you have no recourse to get your money back?

1.) stop check
2.) FDIC rules on etf for direct deposit

Both of which the person's whose bank account was rifled through has no way to reverse. It sounds to me like not only was the company incompetent with their accounting, they also failed to take the appropriate prescribed methods for refunding their mistake. Perhaps a little more going on here than meets the eye in this less than fact filled account.

Accidents do happen, and generally the people responsible for them pays the consequences.

krugminator
09-05-2013, 03:28 PM
There is recourse. It happens frequently enough. If it is not worked out among the parties involved, you go to the courts, not the cops. If there is a union or existing employment contract, you might hammer out the details with emloyees or their representatives.

YOU are begging "to live in a world" where the recourse to a civil dispute is that the corporation, company, rich guy calls the cops and you are jailed.

If I stole, I would expect to go to jail. It's infuriating that there is any debate. There is no difference between this guy and any other thief. He withdrew money that wasn't his. He knew it was wrong. He didn't do anything to make things right.

Calling the police is the way civilized people deal with these things. That is much more preferable than taking a baseball bat to Cesar and burying him the desert.

The Free Hornet
09-05-2013, 03:37 PM
The bookkeeper did not ever own the money. The owner of the company did not consent to give the employee that much money. Therefore the money was unlawfully appropriated. But it only became a crime when he refused to give the money back, because then he was intentionally depriving the owner of the property.

Can you find a single instance where a payroll error correction hinges on whether or not it was an owner or bookkeeper that made the error? AFAIK, it doesn't matter if the owner typed in the wrong number.

I think what you want to say is that Cesar "did wrong". I agree (absent some facts to suggest he was due that much money). However doing wrong ought not equate to being charged with a crime, as I'm sure you would agree.

I posted the link to the text of the law (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.31.htm) if you care to find the exact section he violated. I'm fairly certain it is correct as it even references the same amount as the articles (amounts between $20,000 & $100,000).


Sec. 31.03. THEFT. (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation of property is unlawful if:

(1) it is without the owner's effective consent;

I don't think direct deposit counts as appropriation but spending the money might. Also, I'm not sure what "owner's effective consent" means but if one out of twelve on a jury thinks a non-forged payroll check qualifies (e.g., we get these even though we're on direct deposit), then he walks.

newbitech
09-05-2013, 03:39 PM
Civil courts are for contract disputes. When you steal, you don't get to whine about which court the victim chooses to pursue restitution. The guy isn't claiming that he was not overpaid, so thats a moot point anyway. He is just trying to keep money that wasn't owed to him.


The bookkeeper did not ever own the money. The owner of the company did not consent to give the employee that much money. Therefore the money was unlawfully appropriated. But it only became a crime when he refused to give the money back, because then he was intentionally depriving the owner of the property.

By the bookkeeper.

How about another analogy. Someone steals my 10,000 diamond ring and pawns it off. I find the ring at the pawn shot. Are they stealing if they don't give it back when I demand they return it?

aGameOfThrones
09-05-2013, 03:42 PM
Calling the police is the way civilized people deal with these things. That is much more preferable than taking a baseball bat to Cesar and burying him the desert.


Right. That job is for the cops.

angelatc
09-05-2013, 03:43 PM
He very well could be a thief and it could be much more than him simply not returning money that was deposited to him by mistake. You don't know either way. So kind of hard to even consider any legal implications without even really knowing the nature of the case.

Sure he was arrested and jailed for grand theft. What was the probable cause? That he said "no" i believe I have a right to this money that was placed at will into my bank account? Come on.

Maybe you missed my post on the defintion of theft, but in any event, the guy isn't a moron. He knew damned well that his employer made a mistake and he wasn't entitled to the money. That's why he moved it immediately, then pulled the cash out entirely. He was assuming he'd only get fired, and maybe even sued. What he didn't know was that it was a criminal act not to return it.

Probable cause would be required to get a warrant to dig through the guys bank accounts, and the affidavit from the employer and/or the bookkeeper about the transaction would suffice. The Fed gives the banks a lot of leeway when investigating errors, and we all agree to those terms when we open the accounts.

If he is a thief, and the bookkeeper was in on it, that would be the headline.

angelatc
09-05-2013, 03:46 PM
By the bookkeeper.

How about another analogy. Someone steals my 10,000 diamond ring and pawns it off. I find the ring at the pawn shot. Are they stealing if they don't give it back when I demand they return it?

Can't we just talk about the scenario that exists instead of making up another one that doesn't really apply?

But since you asked, in Michigan at least, pawn shops get some special protections in that regard. But in most instances, receiving stolen property does not mean you have title. If the police find you with stolen property, and you refuse to return it, they likely would indeed charge you with theft.

angelatc
09-05-2013, 03:52 PM
Can you find a single instance where a payroll error correction hinges on whether or not it was an owner or bookkeeper that made the error? AFAIK, it doesn't matter if the owner typed in the wrong number.

I think what you want to say is that Cesar "did wrong". I agree (absent some facts to suggest he was due that much money). However doing wrong ought not equate to being charged with a crime, as I'm sure you would agree.

I posted the link to the text of the law (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.31.htm) if you care to find the exact section he violated. I'm fairly certain it is correct as it even references the same amount as the articles (amounts between $20,000 & $100,000).



I don't think direct deposit counts as appropriation but spending the money might. Also, I'm not sure what "owner's effective consent" means but if one out of twelve on a jury thinks a non-forged payroll check qualifies (e.g., we get these even though we're on direct deposit), then he walks.

You can think all you want, but the definition specifically includes money as well as monetary instruments in their definition of property. The owner consented to pay the guy $997. He did not consent to pay him $99700.

He only became guilty of the crime when he refused to return it, not when he received it. I'm perfectly fine with that.

The Free Hornet
09-05-2013, 03:54 PM
If I stole, I would expect to go to jail.

If I had that expectation, I wouldn't have stolen. If I got caught, I'd plea out (having expected that particular risk).


It's infuriating that there is any debate.

Infuriating is that you want to lock up a guy when you can't find or link to the text of the law or parse a sentence or understand basic definitions (like steal (http://www.merriam-webster.com/dictionary/steal)).


There is no difference between this guy and any other thief.

a) Luck - most thieves aren't this lucky
b) Attention - most thieves wouldn't want to be 'caught' like this
c) Not Guiltly - the evidence doesn't yet suggest he is a thief, I'd wager he walks


Calling the police is the way civilized people deal with these things.

No. Although civil processes can be served by the sheriff's office, I see no evidence that was attempted. What you are witnessing is an attempt to recreate the 'debtor's prison (https://en.wikipedia.org/wiki/Debtors%27_prison)' via argumentation and redefinition of theft. You may favor those things or you may not, but you ought not deny that is what is happening. You could be in the same situation over a car rental agreement and smug a-holes here will yak about how you're a "thief" and will go to jail and cost taxpayers hundreds of thousands of dollars and you ought to have read the twenty pages of rental car agreement while you stood in a parking lot after a six hour flight and you just wanted to get to your hotel.

No, a civil court is the civilized way. Calling the cops is for assholes.


That is much more preferable than taking a baseball bat to Cesar and burying him the desert.

Preferable to whom? The police are increasingly not that much better and if this accidental deposit thing is such a widespread huge-ass problem, then maybe your barbaric solution is more cost effective than the hundreds of thousands it will cost Texas with your "civilized" solution.

newbitech
09-05-2013, 03:55 PM
If I stole, I would expect to go to jail. It's infuriating that there is any debate. There is no difference between this guy and any other thief. He withdrew money that wasn't his. He knew it was wrong. He didn't do anything to make things right.

Calling the police is the way civilized people deal with these things. That is much more preferable than taking a baseball bat to Cesar and burying him the desert.

of course it could have been his since it was in his account and under his control. How do we know how much money he had in the bank? The report about the investigation in this article seems fishy to me to say the least.

The only actual date reported was the Feb. 5th date that he withdraw money which was "4 days later". So he got a direct deposit on Feb. 1st. from what I gather. How did he open a bank account for 50k and then make large cash withdraws 4 days after a direct deposit?

I could be wrong, but I don't think those kinds of transactions clear that quickly. I had to go thru all kinds of hell just to move around 10k a couple years back to a new account from an accumulation of funds. This was one big ass lump payment.

And again, I have to wonder if the cops got a warrant to investigate. Probably not. Probably a fraud alert. It is not inconceivable that if the guy didn't take action with this account then he could have had his accounts frozen by the banks for this entire time. I've seen that happen with my own accounts where money got locked down because of mistakes made my merchants. Am I able to call the cops on that merchant or the bank for stealing my money since they didn't give it back when I demanded? Rhetorical. But no, we have no proof he stole anything.

Where is the money now? If he spent it, where is the 50k merch he spent it on? Where are the purchase receipts? If he buried it in his back yard, is this just simply a case of denying the man his right to due process and trying to force him to turn over something that he feels belongs to him?

Seems like this is a perfect case to file a civil lawsuit over. This doesn't seem like the guy is guilty of unlawful appropriation without the owners consent. Or any other definition of thievery.

newbitech
09-05-2013, 04:06 PM
Maybe you missed my post on the defintion of theft, but in any event, the guy isn't a moron. He knew damned well that his employer made a mistake and he wasn't entitled to the money. That's why he moved it immediately, then pulled the cash out entirely. He was assuming he'd only get fired, and maybe even sued. What he didn't know was that it was a criminal act not to return it.

Probable cause would be required to get a warrant to dig through the guys bank accounts, and the affidavit from the employer and/or the bookkeeper about the transaction would suffice. The Fed gives the banks a lot of leeway when investigating errors, and we all agree to those terms when we open the accounts.

If he is a thief, and the bookkeeper was in on it, that would be the headline.

I found the working definition in this thread. But yeah I did miss the one you were talking about. I mixed up in the legal vs moral issue. I still don't think there is enough to establish any kind of legal case much less a conclusion from anything in this article.

As far as the headline, that could change once his defense comes out. We'll see, but probably not. We just know he thought the money was his. Maybe he had a great idea that saved or made the company millions and someone told him that his idea was golden. All kinds of things could be going on that would make a jury decide to not only acquit, but on civil matters award him the funds. We just don't know.

I entered this thread cause I don't think from what I read that the guy stole anything. Nothing has really convinced me otherwise. Even the "evidence" presented regarding the withdraws and new account doesn't really mean much considering we have no idea what was going on in his account other than what the cops said was going on. Regardless, if he was flat broke, and if he was trying to hurry up and secure the money to keep the employer from reversing the etf, I still believe that the money was in his possession legally and he is/was within his rights to dictate the pace of the return.

That kind of BS happens all the time in the financial realm and no one goes to jail because they refuse to comply with some thugs knocking on the door or some voice over the phone demanding return.

I mean what should he have done? Asked them, "how would you like those bills?"

I probably would moved the money out of the account and split it up to, just to make sure the account didn't get frozen with a fraud alert. I would have definitely demanded something in writing before I even spoke to anyone in that scenario.

But it really depends on the relationship between the two parties. That kind of mistake from the company is not without consequences.

newbitech
09-05-2013, 04:08 PM
Can't we just talk about the scenario that exists instead of making up another one that doesn't really apply?

But since you asked, in Michigan at least, pawn shops get some special protections in that regard. But in most instances, receiving stolen property does not mean you have title. If the police find you with stolen property, and you refuse to return it, they likely would indeed charge you with theft.

sure, the bookkeeper misappropriated the funds into the guys account. The guy did what he wanted to with the misappropriated funds and now he is being accused of being the one who misappropriated the funds without the owners consent. That is a false accusation.

angelatc
09-05-2013, 04:15 PM
I don't think direct deposit counts as appropriation but spending the money might. Also, I'm not sure what "owner's effective consent" means but if one out of twelve on a jury thinks a non-forged payroll check qualifies (e.g., we get these even though we're on direct deposit), then he walks.

For the purpose of the law, appropriate means

4) "Appropriate" means:

(A) to bring about a transfer or purported transfer of title to or other nonpossessory interest in property, whether to the actor or another; or
(B) to acquire or otherwise exercise control over property other than real property.


(5) "Property" means:
(A) real property;

(B) tangible or intangible personal property including anything severed from land; or
(C) a document, including money, that represents or embodies anything of value.



Direct deposit means he acquired control over the money.

angelatc
09-05-2013, 04:17 PM
sure, the bookkeeper misappropriated the funds into the guys account. The guy did what he wanted to with the misappropriated funds and now he is being accused of being the one who misappropriated the funds without the owners consent. That is a false accusation.



Not according to the law. See my post above, which cites Texas statute and defines appropriate as acquiring control of the property.

angelatc
09-05-2013, 04:20 PM
I found the working definition in this thread. But yeah I did miss the one you were talking about. I mixed up in the legal vs moral issue. I still don't think there is enough to establish any kind of legal case much less a conclusion from anything in this article.

As far as the headline, that could change once his defense comes out. We'll see, but probably not. We just know he thought the money was his. .

NO, he thought that the company had made a mistake and he could profit from it. That isn't the same as thinking the money was his.

The Free Hornet
09-05-2013, 04:27 PM
STOP READING THIS THREAD UNTIL YOU HAVE READ THE POST BY NEWBITECH! CLICK TO READ AND DON'T FORGET TO REP HIS ASS UP! (http://www.ronpaulforums.com/showthread.php?426384-Guy-gets-paid-100k-when-he-was-supposed-to-get-1k-gets-charged-with-theft&p=5212502&viewfull=1#post5212502)



He only became guilty of the crime when he refused to return it, not when he received it.

He didn't refuse. His claim is not having "ALL" the money and needing time.


According to the document, "Saldivar stated he felt like he did not do anything wrong, he did not have all of the money and needed some time to figure it out."

http://www.beaumontenterprise.com/news/article/Police-Bryan-worker-gets-accidental-huge-4755680.php

In a case I posted, the issue was addressed via future payroll deductions. That is what I would advise because

a) the money is gone
b) the money is gone
c) any money this guy makes is going elsewhere
d) the money is gone

Cesar may not be worth employing but I would suggest this route regardless if it means they could get back certain portions (e.g., the payroll taxes that were deducted automatically). THAT is the money to go after first. But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.

Maybe an accountant can speak to the ease of converting the after-tax amount to a type of payroll loan with no tax implications.

Texas Steel Conversion is a small company but should look into payroll controls. Where I work, checks over a few grand require two signatures, but I can't speak to payroll controls. I don't do payroll, but having done it, I did balance the hours and noted comparisons to prior pay periods. The $100,000k extra would have stood out.

This may be a very expensive lesson and if some asshole is paid $100k to teach it... well, it is likely cheaper than Anderson Consultants (http://www.accenture.com/us-en/pages/index.aspx).

They should have walked gingerly here but I could be wrong. Maybe Cesar will cough up $40k and this will satisfy all parties the police included.

If a *jury* convicts him of thievery in this instance, please mock me mercilessly for my misinterpretations and stupidity.

angelatc
09-05-2013, 04:39 PM
In.

That kind of BS happens all the time in the financial realm and no one goes to jail because they refuse to comply with some thugs knocking on the door or some voice over the phone demanding return.

I mean what should he have done? Asked them, "how would you like those bills?" .

He should have called the payroll department the morning after the deposit hit. That's what most people do, actually.

The only time I've seen something similar involved a customer who got money that wasn't theirs. When the brokerage finally tracked it down, they asked for the money back but he refused because he claimed he had already spent it. Company sued, and got a judgment against him for the amount plus legal fees.

Then it got good. He tried to file bankrutcpy , but the company lawyers fought it, claiming that he was using the bankruptcy process specifically to avoid paying that debt, and they won partly because the guy hadn't even fought the original lawsuit. He just let them win by default, apparently figuring that he could just go bankrupt.

So as far as I know, he's still paying the original amount, plus interest, plus legal fees. He would have been better off just doing the right thing.

angelatc
09-05-2013, 04:48 PM
He didn't refuse. His claim is not having "ALL" the money and needing time.



In a case I posted, the issue was addressed via future payroll deductions. That is what I would advise because

a) the money is gone
b) the money is gone
c) any money this guy makes is going elsewhere
d) the money is gone

Cesar may not be worth employing but I would suggest this route regardless if it means they could get back certain portions (e.g., the payroll taxes that were deducted automatically). THAT is the money to go after first. But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.

Maybe an accountant can speak to the ease of converting the after-tax amount to a type of payroll loan with no tax implications.

Texas Steel Conversion is a small company but should look into payroll controls. Where I work, checks over a few grand require two signatures, but I can't speak to payroll controls. I don't do payroll, but having done it, I did balance the hours and noted comparisons to prior pay periods. The $100,000k extra would have stood out.

This may be a very expensive lesson and if some asshole is paid $100k to teach it... well, it is likely cheaper than Anderson Consultants (http://www.accenture.com/us-en/pages/index.aspx).

They should have walked gingerly here but I could be wrong. Maybe Cesar will cough up $40k and this will satisfy all parties the police included.

If a *jury* convicts him of thievery in this instance, please mock me mercilessly for my misinterpretations and stupidity.

He did refuse. Having a reason doesn't make it a non-refusal.

Why would anybody loan money to a guy they know is a thief, much less keep him on the payroll?

I am assuming that if Texas Steel is like any other company I've ever worked for, they will indeed be revising their procedures in response to this.

I suspect that Cesar will indeed cough up the money, and the DA will then drop the charges. But I'm having a hard time believing that a jury wouldn't agree that he was not in any way entitled to keep the money, and that he clearly knew it.

RickyJ
09-05-2013, 04:58 PM
If I stole, I would expect to go to jail. It's infuriating that there is any debate. There is no difference between this guy and any other thief. He withdrew money that wasn't his. He knew it was wrong. He didn't do anything to make things right.

Calling the police is the way civilized people deal with these things. That is much more preferable than taking a baseball bat to Cesar and burying him the desert.

How would they get their money back if they killed him? How are they going to get their money back by trying to claim he stole it and prosecute him for it? They won't ever get it back like that. They can sue him and get a judgment against him, but putting him in jail over a dispute is not in their authority nor should it be. The police screwed up here, this is not a criminal case.

newbitech
09-05-2013, 04:59 PM
A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages. The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law. The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code,Section 42.001(b)(1) (http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.42.htm#42.001)). The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025 (http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.154.htm#154.025), which prohibits a county from issuing a warrant (in the Orange Countycase, a paycheck warrant) to an individual who is indebted to the county. One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote. In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply. The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made. The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way. Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm (http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm))). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage. However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement (http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html) and sample wage overpayment/underpayment policy (http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html) at the end of the "A - Z" (http://www.twc.state.tx.us/news/efte/table_of_contents-az.html) section of this book).

A sample policy regarding wage overpayments (http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html) (and an employee's duty to return them to the employer) appears in the sample forms and policies section of this book (section II of the A - Z of Personnel Policies (http://www.twc.state.tx.us/news/efte/table_of_contents-az.html#aztoc-appendix.html)).

http://www.twc.state.tx.us/news/efte/deduction_problems_under_tpl.html#wageoverpayments


sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the law offers in recovering that money is through deductions from payroll.

Sample policy that the company would have had to have had the employee sign in order to be in compliance with the law.

http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html



WAGE OVERPAYMENT / UNDERPAYMENT POLICY

The Company takes all reasonable steps to ensure that employees receive the correct amount of pay in each paycheck and that employees are paid promptly on the scheduled paydays.

In the unlikely event that there is an error in the amount of pay, the employee should promptly bring the discrepancy to the attention of the General Manager or Payroll Manager so that corrections can be made as quickly as possible. If the employee has been underpaid, the Company will pay the employee the difference as soon as possible. If the employee has been paid in excess of what he or she has earned, the employee will need to return the overpayment to the Company as soon as possible. No employee is entitled to retain any pay in excess of the amount he or she has earned according to the agreed-upon rate of pay. If a wage overpayment occurs, the overpayment will be regarded as an advance of future wages payable and will be deducted in whole or in part from the next available paycheck(s) until the overpaid amount has been fully repaid. Each employee will be expected to sign a wage deduction authorization agreement authorizing such a deduction.

I understand this policy and agree to its terms. ________________________________

We ask that employees realize that pay errors are not intentional and that employees be understanding if such an event occurs.

So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

I don't think the guy or the company signed anything that said he would be considered a thief if he didn't agree to his loan repayment terms.

Glad I could sort that out for ya'll. I really hope to see some graceful exiting from this debate as I believe from the legal standpoint there is not a criminal case here as presented. But, I don't expect it. I will just refer to the law instead and welcome the pivot to the moral side of the debate.

The Free Hornet
09-05-2013, 05:01 PM
For the purpose of the law, appropriate means


Direct deposit means he acquired control over the money.

By your definitions, he was thief prior to spending the money because

a) he had control of it (direct deposit = appropriated per your opinion)
b) it was given without the "owner's effective consent" (per your opinion)

Had he died upon seeing his deposit, he would still be a thief per your interpretation. (!)

But you also argue he is a thief for not returning the money but there is little yet to suggest he has that obligation. No civil judgement and the direct deposit agreement sited only gives permission for one party to withdrawal incorrect amounts. It doesn't force the other party to return incorrect amounts.

So, to attempt being reasonable, the direct deposit could not be the approriation. Withdrawing the money could be and that does better demonstrate that "mens rea (https://en.wikipedia.org/wiki/Mens_rea)" thing internet lawyers like to talk about. There was a case where I guy with cancer left a job, stayed on payroll for a year, said nothing, did nothing. He returned the money upon being asked and things didn't "get ugly". There was no suggestion he was a thief and I'm not aware of attempts to prosecute him. In fact, all the people that have not been prosecuted for this, ought to make defense a piece of cake. Is the DA going to say, 'yeah but this guy is sort of ethnic looking, got a DUI, and drove a fork truck'???

There has to be some clear point in the timeline at which he broke the law in question.

1) When getting the money is out of the question - he did NOTHING to acquire it!

2) When withdraing money is a possibility (note not "the money", but "money" - the shit is fungible)

3) When not supplying a requested amount of money is a possibility ("a requested amount", not the whole amount as we know some of it was intended to be paid - which dollars are innocent and which are guilty, we'll never know).

The odd thing about #3 is that if you owe me $100 due to our civil interactions, I can't call you a thief for not paying right away. I can certainly think of you as one but the process at that point is civil or debt collection - not criminal. We have had customers owe us tens of thousands of dollars. Not a single one has ever been charged with a crime because they filed for bankruptcy. Even if they were scum - they aren't - we can't have them treated like thiefs. I'm sure the cops would point us towards a collection agency or other civil solution. OWING MONEY IS NOT A CRIME!

The odd thing about #2 is that it is his money, at the time, and there has been no notification of the error. Had he been notified and then he spent or withdrew the money, maybe you would have something. He withdrew the money and only later did the employer want it back when they changed their mind about how much they wanted to pay him.

When in the timeline is he a thief? It cannot be when money was appropriated (direct deposited). It cannot be when money was withdrawn or spent unless we admit the naked truth that bank accounts aren't really our money (lol - besides company didn't yet want the money back). It cannot be when money wasn't returned because that will be a civil action or some other law they didn't reference.

The Free Hornet
09-05-2013, 05:14 PM
sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the offers in recovering that money is through deductions from payroll.

...

So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

Thank you a million times for this! (click to rep newbitech) (http://www.ronpaulforums.com/reputation.php?do=addreputation&p=5212310) I owe you TWENTY PLUS+REPs. Now.... I don't have the plus+reps on me now, but please trust me that I'm good for them.

I can't thank you enough. This thing stank and now we know why. They ignored their own damn laws. Like this is the first time a payroll dispute arose...

angelatc
09-05-2013, 05:21 PM
By your definitions, he was thief prior to spending the money because

a) he had control of it (direct deposit = appropriated per your opinion)
b) it was given without the "owner's effective consent" (per your opinion).

My opinion is backed up with the verbage of the Texas State Penal Code, and was offered up only in response to the shrieking that there was no legal definition that could justify the actions of the police. Because he was arrested and charged, it appears that my opinion is shared by at least one Texas DA.

And I specifically clarified , several times in fact, that the statute that defines theft clearly indicates that if he did not know the money was in the account, it would not be considered theft. It became theft when he both became aware of the error and refused to give the money back.

Scroll back up if you doubt me - I"m too lazy to keep looking up the same crap over and over.

angelatc
09-05-2013, 05:26 PM
A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages. The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law. The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code,Section 42.001(b)(1) (http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.42.htm#42.001)). The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025 (http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.154.htm#154.025), which prohibits a county from issuing a warrant (in the Orange Countycase, a paycheck warrant) to an individual who is indebted to the county. One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote. In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply. The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made. The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way. Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm (http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm))). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage. However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement (http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html) and sample wage overpayment/underpayment policy (http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html) at the end of the "A - Z" (http://www.twc.state.tx.us/news/efte/table_of_contents-az.html) section of this book).

A sample policy regarding wage overpayments (http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html) (and an employee's duty to return them to the employer) appears in the sample forms and policies section of this book (section II of the A - Z of Personnel Policies (http://www.twc.state.tx.us/news/efte/table_of_contents-az.html#aztoc-appendix.html)).

http://www.twc.state.tx.us/news/efte/deduction_problems_under_tpl.html#wageoverpayments


sounds to me like the police aided and abetted the company in breaking Texas Law. Also sounds like if the employee was fired as a result of this incident, or if the company even attempted to take the funds out of his account they are also in violation of this law.

Even sounds to me like if the company did in fact have the employee sign the overpayment policy, the best the law offers in recovering that money is through deductions from payroll.

Sample policy that the company would have had to have had the employee sign in order to be in compliance with the law.

http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html



So the employer absolutely had no right to go to this guys house and try to collect, absolutely had no right to harass him over the phone, and absolutely had no right to threaten him with legal action, and absolutely had no right to fire him.

As the guy said, he did nothing wrong. He is not a thief. Perhaps he was uncooperative in coming to terms with repaying his advance, perhaps he was not shown these laws by the company.

Arrested for what? Not repaying the full amount of the 100,000 loan right away? Ha!

edit: oh and Texas law apparently requires a signature to even attempt deductions here is that sample for as well

http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html

So doesn't look like they can simply dip into his bank records either.

Only way this could have gotten as far as it did and be any kind of legal is if there is some more charges coming down the pipe that involves another employee, like embezzlement or fraud.

I don't think the guy or the company signed anything that said he would be considered a thief if he didn't agree to his loan repayment terms.

Glad I could sort that out for ya'll. I really hope to see some graceful exiting from this debate as I believe from the legal standpoint there is not a criminal case here as presented. But, I don't expect it. I will just refer to the law instead and welcome the pivot to the moral side of the debate.


This is a different situation. Just reading what you posted, it appears to be case against making a repayment arrangement. I'll read more and argue about that later, but an advance requires consent. There was no consent. (A clerical error is not consent.)

Federal law overrides Texas law, and federal law says they have 5 days to take the money back, but they have to inform the employee. After that, they still have a right to try to collect their money. There is no "Finders Keepers" law.

He took money that he was not entitled to. If that doesnt make him a thief, what does?

NOte that the documents on the Texas page are sample documents. I'm not convinced (yet) that because they law says that accidental overpayments can be treated as advances that they MUST be treated as advances.

But can we at least now set aside the notion that he is allowed to keep the money?

krugminator
09-05-2013, 05:29 PM
But now I hope Cesar sues their ass off for turning the matter from civil to criminal. Or he sues the police department too.



That is literally the dumbest thing I've ever read on this site. Literally. That's number one.

There are some pretty dumb things: the Alex Jones stuff, 9-11 conspiracies, voting machine conspiracies, thinking that Ron Paul actually won, etc.

newbitech
09-05-2013, 05:38 PM
My opinion is backed up with the verbage of the Texas State Penal Code, and was offered up only in response to the shrieking that there was no legal definition that could justify the actions of the police. Because he was arrested and charged, it appears that my opinion is shared by at least one Texas DA.

And I specifically clarified , several times in fact, that the statute that defines theft clearly indicates that if he did not know the money was in the account, it would not be considered theft. It became theft when he both became aware of the error and refused to give the money back.

Scroll back up if you doubt me - I"m too lazy to keep looking up the same crap over and over.

It never became theft tho, that's the problem here. The so called mistake is actually well documented in labor law at the Federal and State levels. The funds are in fact considered a loan or pay advance. Refusing to repay the entirety of the loan immediately after it is loaned or at any other point is not theft. It just simply is not.

The company is probably in violation of several consumer protection laws however for their loan sharking collection techniques. Unless some other evidence turns up that there was fraud or embezzlement, it is not legal possible to support any claim of theft in this dispute. In fact the police and DA are both complicit in breaking those collection laws.

Fact is, it is impossible to assert that the funds were legally misappropriated without the owners consent in this case since the legal definition of what happened in this case is an advance of wages or loan. That is something that apparently any employer in the state of Texas must abide to and in fact as far as Federal labor laws, all employers in any state without some other explicit definition must abide to. As far as I can tell, the laws are all careful to protect employees from unlawful deductions of wages for any reason.

For the purpose of that definition, wage overpayments are in fact considered advances or loans, and this is to protect the business from wage garnishment laws as well as minimum wage laws.

Unfortunately for the company, their mistake was costly. Sort of like if they accidentally purchased 100,000,000 boxes of red pens when they meant to purchase 100,000,000 boxes of blue pens and had a supplier agreement of no refunds after delivery.

Sucks for the employer cause now they are likely to also face Federal Consumer Protection lawsuit if the guy uses that loan to hire a good lawyer. They probably should have just complied with the law in the first place, sucked up their mistake like every one else with a good moral compass would do and work it out with their employee in accordance to the law.

Basically what they did when they gave this guy an advance like this was ensure that he remain an employee until the debt was repaid. By becoming hostile towards him with their collection effort, calling the cops, and firing him, they just followed up a bad financial mistake with an even worse legal mistake. Maybe they are encouraged now that the "State DA" and cops are with them, but even a sophomore public defender will eat this criminal charge for lunch, and once that acquittal comes, it will likely be more than 100k on the line for the company.

screw up and overpaid an employee and decided to act like a thug in the process of recovering? own the consequences.

newbitech
09-05-2013, 05:47 PM
This is a different situation. Just reading what you posted, it appears to be case against making a repayment arrangement. I'll read more and argue about that later, but an advance requires consent. There was no consent. (A clerical error is not consent.)

Federal law overrides Texas law, and federal law says they have 5 days to take the money back, but they have to inform the employee. After that, they still have a right to try to collect their money. There is no "Finders Keepers" law.

He took money that he was not entitled to. If that doesnt make him a thief, what does?

NOte that the documents on the Texas page are sample documents. I'm not convinced (yet) that because they law says that accidental overpayments can be treated as advances that they MUST be treated as advances.

But can we at least now set aside the notion that he is allowed to keep the money?

Not really a different situation at all. It's what documents like the Overpayment/Underpayment policy are designed for. There is no other applicable laws. Federal law actually does defer to state law in this case, but when you get around to reading you will see that the Texas Supreme court has referred to FSLA W\H opinion since there is not an explicit Texas law.

Yes, they have a right to collect as you say, not a right to knock on his door, threaten him, harass him and have the cops arrest him. Texas law is explicit in that the way the company may go about recovering the advance is thru deductions. Absent that, there is a plethora of documentation from HR advisers on how to handle collection activity for debt incurred by ex-employees for wage debt.

There is nothing in the law that says there must be consent for an overpayment mistake as you have called it to be considered an advance. In fact, in the Sample Policy it explicitly says that mistakes can happen and those are considered loans or advances, and both parties agree on that, please understand yada yada...

You cannot make the legal assertion that he "took the money he was not entitled to". He was entitled to it by virtue of the company putting it in his bank account in the form of a wage advance. That certainly doesn't make him a thief because its just not legally true.

What would make him a thief is if he conspired with payroll to send that money to his account with the intent on never repaying the loan/advance.

I never said he was allowed to keep the money, but yeah he isn't allowed to keep it. Now can we set aside the notion that this is a criminal matter and that the guy is a thief? (absent some other evidence)?

newbitech
09-05-2013, 05:49 PM
That is literally the dumbest thing I've ever read on this site. Literally. That's number one.

There are some pretty dumb things: the Alex Jones stuff, 9-11 conspiracies, voting machine conspiracies, thinking that Ron Paul actually won, etc.

He should hold the company and the police and the DA accountable. If he gets money out the deal, more power to him. Maybe the people in his state will feel the pain of having rouge companies and rouge police and rouge state lawyers trampling over folks right to be free from harassment and thugish quasi-fascist collection tactics.

angelatc
09-05-2013, 05:58 PM
OK - I am going to hack this apart sentence by sentence, noting that these cases all seem to be against government entities, and not private employers.




A type of wage deduction that defies easy classification is that of a deduction to offset an overpayment of wages, which was specifically found in the case of Benton v. Wilmer-Hutchins I.S.D., 662 S.W.2d 696 (Tex.App. - Dallas 1983; overruled in part in Orange County v. Ware, 819 S.W.2d 472, 474 (Tex. 1991)), to violate the restriction in the Texas Constitution on garnishment of current wages.

That sentence says that in Wilmer-Hitchens, the court found a deduction to offset an over payment of wages violated the Texas Constitution.



The Texas Supreme Court's Orange County decision held that self-help by a creditor-employer, i.e., the offsetting of mutual debts between an employer and employee, did not amount to a garnishment that would be covered by the Texas Constitution, but acknowledged that it might be limited by some other form of law.


That sentence says that the Orange County decision said it might be ok constitutionally, but there might be other laws that made it illegal.


The only other generally applicable and potentially relevant law in this situation would be the statute regarding attachment of current wages in the Texas Property Code (V.T.C.A., Property Code, Section 42.001(b)(1) (http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.42.htm#42.001)).

That code defines what can't be garnished to recover liens and debts:

Sec. 42.001. PERSONAL PROPERTY EXEMPTION. (a) Personal property, as described in Section 42.002, is exempt from garnishment, attachment, execution, or other seizure if ....:




The Texas Supreme Court did not mention that statute, but cited a specific provision of the Local Government Code, Section 154.025 (http://www.statutes.legis.state.tx.us/Docs/LG/htm/LG.154.htm#154.025), which prohibits a county from issuing a warrant (in the Orange County case, a paycheck warrant) to an individual who is indebted to the county.

This isn't an attempt to collect a government fine, so I don't think this applies.


One might assume that the Texas Supreme Court would be aware of the Property Code provision cited above, and thus that the Court felt that the specific Local Government Code provision overrode the more general Property Code section. Unfortunately, the Orange County decision raised more questions than it clearly answered, and three justices dissented from the majority vote.

That's two sentences. Caught me. But this would seem to make a case that a repayment agreement is anything except cut and dry.


In the absence of a specific provision such as the one that applied in Orange County, it would be most prudent to expect the Property Code provision to apply.


Again, an argument that a repayment agreement might not be the simple option we were assuming it would be.


The Benton court emphasized that its problem with the wage deduction to offset a previous wage overpayment stemmed from the employer's unilateral action in making the offset, i.e., without a clear prior agreement from the employee that such a deduction could be made.



Again, even if the employee agreed that such deductions could be made, does that mean that the employee is bound to use that as their only recourse? If the employee had gained 9 million dollars instead of just 50k, then it would seem ridiculous to assert that the employee could ever be expected to repay the amount over the course of his lifetime.


The implication is that if an employer complies with the Texas Payday Law and obtains the employee's written authorization to make such a deduction from wages, neither the Benton case, nor Section 42.001(b)(1) of the Property Code, would stand in the employer's way.

This page indicates that they believe that payroll deduction to recover overpayments is illegal if there is consent. It does not seem to obligate the employer to use that method.



Concerning the FLSA, minimum wage would not be a problem, since the wage overpayment would fall into the same category as loans or wage advances (confirmed in a DOL letter ruling dated March 20, 1998 (1998 WL 852662) and in a similar ruling dated October 8, 2004 (see opinion letter FLSA2004-19NA at http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm)). Thus, as long as the employer is able to document the employee's receipt of such wages in advance of the date the wages were due, it should have no FLSA problem in making that sort of wage offset, even if it takes the employee's pay below minimum wage.


Meaning that there could be yet another issue with the repayment plan...the minimum wage law might come into play, even if they don't think it will.


However, since it represents a deduction from wages, it would need to be authorized in writing by the employee in order to be valid under the Texas Payday Law. In addition, every employer should cover this subject in a written policy (see the sample wage deduction authorization agreement (http://www.twc.state.tx.us/news/efte/wage_deduction_authorization_agreement.html) and sample wage overpayment/underpayment policy (http://www.twc.state.tx.us/news/efte/wage_overpayment_policy.html) at the end of the "A - Z" (http://www.twc.state.tx.us/news/efte/table_of_contents-az.html) section of this book).

Standard fare - they can't hold back any of your wages without an agreement.

Summation - I don't see how this applies.

newbitech
09-05-2013, 06:03 PM
"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department.

actually it's kind of like when your employer makes a mistake and overpays you 100,000 grand and it's considered an advanced and/or loan according to Texas and Federal Labor laws/State supreme court decisions/legal etc.. etc..

In order to claim mens rea, you'd first have to exhibit that this guy was ignorant of labor laws, which would be silly cause the next thing you'd have to do is show that employee was in compliance with the Texas Payday Laws which would have the stipulation that overpayment mistakes are in fact loans/advances. So when I get a loan or an an advance, I spend it. Big deal. Guy didn't act like someone who stole money, he acted like someone who wanted to spend his payroll advance.

Make an attempt to find the owner? Not in this case, he was the owner and he knows exactly where the money came from, his labor.

newbitech
09-05-2013, 06:15 PM
OK - I am going to hack this apart sentence by sentence, noting that these cases all seem to be against government entities, and not private employers.



That sentence says that in Wilmer-Hitchens, the court found a deduction to offset an over payment of wages violated the Texas Constitution.




That sentence says that the Orange County decision said it might be ok constitutionally, but there might be other laws that made it illegal.


That code defines what can't be garnished to recover liens and debts:

Sec. 42.001. PERSONAL PROPERTY EXEMPTION. (a) Personal property, as described in Section 42.002, is exempt from garnishment, attachment, execution, or other seizure if ....:





This isn't an attempt to collect a government fine, so I don't think this applies.



That's two sentences. Caught me. But this would seem to make a case that a repayment agreement is anything except cut and dry.



Again, an argument that a repayment agreement might not be the simple option we were assuming it would be.



Again, even if the employee agreed that such deductions could be made, does that mean that the employee is bound to use that as their only recourse? If the employee had gained 9 million dollars instead of just 50k, then it would seem ridiculous to assert that the employee could ever be expected to repay the amount over the course of his lifetime.



This page indicates that they believe that payroll deduction to recover overpayments is illegal if there is consent. It does not seem to obligate the employer to use that method.




Meaning that there could be yet another issue with the repayment plan...the minimum wage law might come into play, even if they don't think it will.



Standard fare - they can't hold back any of your wages without an agreement.

Summation - I don't see how this applies.

This is the legal basis for the definition of overpayment mistake. overpayment mistake != theft. refusing the unreasonable terms of the repayment != theft. Hell the employer didn't even want to deal with it. Apparently the mindset is that the money was "stolen" from the company when in fact there is no legal basis for that because 1.) The company made the overpayment mistake legally known as a payment advance or loan
and 2.) The company and the police violated the Texas Labor law by attempting an unlawful collection of the advance

Yes standard fare and it applies to all types of wage deductions including wage deduction in compliance with Texas law in regards to mistake overpayments aka loans aka advances.

Can't get any more clear than that really.

I'd like to see some precedence for a criminal conviction in a similar case where the company made an overpayment mistake aka loan aka advance and the employee was tried and convicted for refusing to comply with door knocks and harassing phone calls in regards to the only Texas Labor Law legal avenue for recouping overpayment mistakes aka loan aka advance.

angelatc
09-05-2013, 06:41 PM
This is the legal basis for the definition of overpayment mistake. overpayment mistake != theft. refusing the unreasonable terms of the repayment != theft.

I don't think it is. I think this is guidance for employers who might be considering a loan repayment agreement as a remedy to a wage over payment. I don't see any law that indicates it is the only acceptable course of action.


Hell the employer didn't even want to deal with it. Apparently the mindset is that the money was "stolen" from the company when in fact there is no legal basis for that because 1.) The company made the overpayment mistake legally known as a payment advance or loan
and 2.) The company and the police violated the Texas Labor law by attempting an unlawful collection of the advance....

Again, I'm not seeing the statue that says the overpayment has to be considered as advance.


Yes standard fare and it applies to all types of wage deductions including wage deduction in compliance with Texas law in regards to mistake overpayments aka loans aka advances.

But since the employer has shown no indication that they want to handle this as a loan to be recovered, then it doesn't apply.


Can't get any more clear than that really.

I'd like to see some precedence for a criminal conviction in a similar case where the company made an overpayment mistake aka loan aka advance and the employee was tried and convicted for refusing to comply with door knocks and harassing phone calls in regards to the only Texas Labor Law legal avenue for recouping overpayment mistakes aka loan aka advance.

I still don't see the law saying that the overpayment is required to be handled as an advance. It seems to be warning employers that such an agreement is risky.

angelatc
09-05-2013, 06:44 PM
N. Texas law is explicit in that the way the company may go about recovering the advance is thru deductions.

That's the part I'm disputing. Can you give me that statute?

The Free Hornet
09-05-2013, 07:05 PM
That is literally the dumbest thing I've ever read on this site. Literally. That's number one.

There are some pretty dumb things: the Alex Jones stuff, 9-11 conspiracies, voting machine conspiracies, thinking that Ron Paul actually won, etc.

Maybe you have never received a bonus before (especially at a smallish company). Lemme clue you in. There is no fucking paperwork that says, "this is a bonus and we are super serious about you keeping this money!". It is just a bigger paycheck. Sometimes it is a second paycheck. Sometimes it is a line item on the regular payroll check. Sometimes it is simply a BIGGER paycheck. And there is no paperwork internal to the company or in my possession that says "we are super serious about giving the Free Hornet guy this money!".

IT IS JUST A BIGGER PAYCHECK! (err, direct deposit)

You are proposing is a world where

a) a bonus is given

b) the company changes its mind (or someone higher up decides differently and someone lower down says, 'uh that was a mistake - blame the guy with the bad bonus money') months or up to 3 three years later (Texas law)

c) the bonus recipient now faces CRIMINAL accusations instead of a civil court

You are now engaged in assymetric warfare for the bonus check you thought they were super serious about giving. Give them $100k or risk going to fucking jail.

I'd have to hold onto bonuses for years or obtain letters saying they were "super serious" about the bonus money.

If you or Angela had any integrity in this discussion you would at least propose that the board or owner of Texas Steel Conversion should be on trial for thievery too. Because if Cesar is NOT guilty of theft, they sure as fuck are guilty of attempted theft. By your own logic, you don't want this adjudicated in a civil court, and you don't want the incorrect party to not go to jail.

Tell the Steel CEO, "OK we'll charge him thievery but if he is found not guilty, then it is your ass in jail!". Let's see how much you and your types like calling the cops with a level playing field.

To recap,

a) You don't know shit.

b) I'm a fucking saint for not calling you a dumb-ass motherfucker

presence
09-05-2013, 07:14 PM
http://smallbusiness.chron.com/DM-Resize/photos.demandstudios.com/65/245/fotolia_1838883_XS.jpg?w=410&h=410&keep_ratio=1

Laws Regarding Overpayment of Salary

by Marie Wolf, Demand Media


As a small business owner, accidentally overpaying an employee can hurt your bottom line. Whether it's due to an error in payroll computing or an employee's mistake in reporting work or vacation hours, an overpayment is a loss you'll want to recoup. The laws of the state in which your business operates will determine whether you can get your money back by adjusting your employee's future paychecks or whether a courtroom may be in your future.

http://smallbusiness.chron.com/laws-regarding-overpayment-salary-13166.html


No mention of free fascist armed thugs from the local swat team for the employer class.





much more on this subject...

google keyword:

"overpayment employment law state" ...not in quotes.

You'll find that and employer who signs his name to an erroneous obligation is obliged to collect in a CIVIL manner.




Yes, they have a right to collect as you say, not a right to knock on his door, threaten him, harass him and have the cops arrest him. Texas law is explicit

Which is the real reason why this is even "news" to begin with.

newbitech
09-05-2013, 07:23 PM
That's the part I'm disputing. Can you give me that statute?

sure, have a look

http://www.twc.state.tx.us/twcinfo/rules/ch821.pdf


§821.29. Wage Advances.(a) A wage advance occurs when an employer advances to an employee a monetary sum that
represents wages not yet earned, or wages that have been earned but are not yet due for payment.
(b) An employer may recoup the wage advance from the employee's next regularly scheduled
paycheck directly following the advance if:
(1) the employer provides the employee with notice that the amount is an advance that will be
recovered from the next paycheck; and
(2) the employee agrees to the amount to be recouped.
(c) If the wage advance is not recouped in the next regularly scheduled paycheck following the
advance, the employer shall comply with §61.018 of the Act.
The provisions of this §821.29 adopted to be effective September 20, 2010, as published in the Texas
Register, September 17, 2010, 35 TexReg 8506.


Also, as noted in the Texas Wage Commissions recommended policy guide for Wage Overpayment,


General information about wage overpayments: as noted in the article "The Texas Payday Law - Basic Issues", the U.S. Department of Labor considers wage overpayments to be in the same category as wage advances or loans, and thus finds no minimum wage problem with deductions from future wages to recoup such overpayments.

So common law precedence as well as Department of Labor Wage and Hour Opinion does not distinguish mistake wage over payment from a loan or an advance.

first question. That was part of what you went line by line on

http://www.dol.gov/whd/opinion/FLSANA/2004/2004_10_08_19FLSA_NA_recoup.htm

In fact there is no law that I can find anywhere that makes me a thief if anyone at anytime deposits money in my account then asks for it back and I refuse. I'd like to see those laws.

You got anything besides the misappropriations that I think really don't apply since its pretty clear the guy here wasn't the one doing the misappropriating. Another case would be nice too since I really think common law is pointing to this mistake being the responsibility of the employer not the employee. Clearly not criminal from where I sit.

All the HR material that I have come across including links from ADP payroll company are saying the legal recourse is to file a civil suit and seek judgement and lien.

presence
09-05-2013, 07:30 PM
All the HR material that I have come across including links from ADP payroll company are saying the legal recourse is to file a civil suit and seek judgement and lien.

Sounds like the honorable thing to do.

newbitech
09-05-2013, 07:45 PM
Sounds like the honorable thing to do.

and legal for that matter. In all the documentation I have read for "government employees of the state" (which is VERY explicit on how to handle this situation), the policy is to take the employee to collections. Those policies are sure to point out that the collection process must not deprive the employee or former employee of due process.

I haven't looked in to this company at all, but something tells me there is more here than meets the eye from the articles. Also would like to know more about the relationship between employer and employee. Like how long did he work there, who did he know there. I get the sense that he knew the owner on a personal level or at least knew some of the officers on a personal level.

I am thinking that someone in management level might have drunkenly told the guy that he had a big raise or bonus coming. I don't think the guy looked at the money in the account and said, oh crap I better hide this quick! or anything like that. I think maybe he felt that was his money since it was in his account to do whatever he wanted to do with it. I would have done the same thing with that much money hitting my account at once.

Split it up as soon as it cleared. This makes sure that all the money doesn't get seized if bank shenanigans go down. I've seen it happen to a small business. He had some marketing success and a break through with one of his products, sales soared and his bank froze money from clearing out of his account until the payments could be cleared. He ended up getting locked out for a month and had to scramble because tight margins meant he needed that revenue to replace inventory. It took him almost 6 months to recover his cash flow, cause even when the bank did release funds they did so "in the order in which it was received" with about a month time lag. It was the most ridiculous thing I had ever seen with banking at the time.

Anyways, I digress. Had the company followed the law, I think the guy would have figured out the right thing to do. They didn't and now he's gonna spend his advance on a defense lawyer. Irony.

aGameOfThrones
09-05-2013, 08:11 PM
A few years ago My bank deposited some money into my account without my knowledge, when I saw it I thought it was like a bonus for being a good customer, I also thought it could be a mistake on their part, but I didn't put too much thought in it(small amount) since I didn't need to make a withdrawal. After a few days I checked my account and the money was gone, so realized it was a mistake and not for being a good customer :(. But they did it without even contacting me, the thieves.

angelatc
09-06-2013, 08:56 AM
Sounds like the honorable thing to do.

Yeah, when someone tries to take advantage of me, I always make sure that I make sure to treat them much more honorably than they're treating me.

angelatc
09-06-2013, 09:39 AM
Again, this isn't a law. These are guidelines for employers, giving the employers guidance on what is and isn't allowed. This doesn't set the collection procedures in stone.

And government employees have their own set of rules, which wouldn't apply here regardless.

http://www.twc.state.tx.us/laws/tuca/enabling-state-statutes.html#texasLaborCode - That's the link to the Texas Labor Law. The cold hard statutes, not the fluffy little guide for employers that you're citing. Go ahead and show me the part that says the only way to collect the money is through payroll deduction. I read through it, and couldn't find it.


sure, have a look

http://www.twc.state.tx.us/twcinfo/rules/ch821.pdf



I hate trying to quote quotes, but I see the word "may." I do not see to words "must" "shall" and in the context of the pamphlet, the subsection is dealing with reasons that you as an employer might be allowed to dock a paycheck. Nowhere in the statutes does the law say that the employer MUST treat them as such.

It also clearly say that the employee must agree to the arrangement, which means that that it isn't a slam dunk for the employer.





Also, as noted in the Texas Wage Commissions recommended policy guide for Wage Overpayment,

General information about wage overpayments: as noted in the article "The Texas Payday Law - Basic Issues", the U.S. Department of Labor considers wage overpayments to be in the same category as wage advances or loans, and thus finds no minimum wage problem with deductions from future wages to recoup such overpayments

Dude, I do payroll. This is out of context. This relates to garnishments that could effectively leaving the employee bringing home an amount less than the federal minimum wage. The DOL says that employers are allowed to lend money to an employee with the agreement the agreement that the employer will take payments directly from the paycheck even if that means the net take home will be less than he would have earned if he only made minimum wage. That's not true with all garnishments. And it has zero to do wit the circumstance we're talking about here.






In fact there is no law that I can find anywhere that makes me a thief if anyone at anytime deposits money in my account then asks for it back and I refuse. I'd like to see those laws.

Except for the statutes that define what he did as theft, you mean.

I understand that the law probably wasn't written with this exact scenario in mind, but the fact that this scenario fits the definition is why they write the laws the way they do.




You got anything besides the misappropriations that I think really don't apply since its pretty clear the guy here wasn't the one doing the misappropriating. Another case would be nice too since I really think common law is pointing to this mistake being the responsibility of the employer not the employee. Clearly not criminal from where I sit.


I gave you the definition of appropriation that the statute uses, which means that appropriation in this instance means gaining control. He has control of the money, so the law considers that he has appropriated it. Again, apparently a district attorney somewhere agrees with me, or else they would not have filed charges.

What would it take to convince you?

And you're quite mistaken about common law. As far a banking goes, it generally holds that you can't profit from someone else's mistake. Show me the law that says if someone accidentally deposits money into your account that you're entitled to keep it. You can't, because it doesn't exist. On the other hand, I can show you a bunch of laws and regulations that entitle people to reverse deposits that were made in error.

The way the world works and the way you think it should work are two different matters. In the example of your Ferrari, suppose I bought it, and it was accidentally delivered to your house. You might think that the mistake somehow entitles you to the property, but I can assure you that it absolutely does not. There is no Finders Keepers law. Keeping money you find on the street isn't even generally legal until after you've made an effort to find the owner. Possession does not simply equate to ownership.




All the HR material that I have come across including links from ADP payroll company are saying the legal recourse is to file a civil suit and seek judgement and lien.


So you just spent 4 paragraphs telling me that the law dictates that the only method to recover the money is through payroll deduction, then trumped your own hand with a statement saying that ADP advises a civil suit?

Well, that's why the lawyers are a always better place to get legal advice than HR and payroll companies. Apparently the police and the prosecutor felt that a different recourse was appropriate in this case, probably because the amount of money was so significant. Again, let me point this out: if the guy owed $50 million instead of $50 thousand, it would be ridiculous to assert that he should work it off via payroll deduction. Ignoring the ADP position, and using your first assertion that they're bound to use only payroll deductions ...there is no possible way the guy would ever be able to work off that much.

And even at $50,000...that's roughly his salary for a year. If the employer decided to take the money back over the next 4 years, charging him no interest, you think a guy who makes $50k would be willing to live on a 25% paycut for the next four years?

So of course that's not true, and there is no law that states that is the only method an employer can use. You eve already know that ADP advises civil suits.

The Texas law says only the employer could do that if the employee and the employer agreed, but no place does it say that is the only recourse.

This may set a precedent, and I have no problem with prosecuting thieves. But a quick Google search found another example of a guy who was sent to jail for essentially same thing: http://947thewave.cbslocal.com/2011/06/23/man-jailed-for-spending-money-wrongfully-deposited-in-bank-account-does-the-punishment-fit-the-crime/ His family ended up loaning him the money to make restitution to keep him out of prison.

It might be a Texas precedent, but it isn't a national precedent.

angelatc
09-06-2013, 09:58 AM
I am thinking that someone in management level might have drunkenly told the guy that he had a big raise or bonus coming. I don't think the guy looked at the money in the account and said, oh crap I better hide this quick! or anything like that.

"Oh crap I better hide this quick" is exactly what he did. He pulled it out of his regular bank account and moved it to a different bank, then correctly decided that wasn't safe either so he pulled it all out in cash.

angelatc
09-06-2013, 10:01 AM
Laws Regarding Overpayment of Salary


by Marie Wolf, Demand Media

As a small business owner, accidentally overpaying an employee can hurt your bottom line. Whether it's due to an error in payroll computing or an employee's mistake in reporting work or vacation hours, an overpayment is a loss you'll want to recoup. The laws of the state in which your business operates will determine whether you can get your money back by adjusting your employee's future paychecks or whether a courtroom may be in your future

http://smallbusiness.chron.com/laws-regarding-overpayment-salary-13166.html


No mention of free fascist armed thugs from the local swat team for the employer class.

.

Really, you missed the part about the courtroom? Or maybe you think that he's going to turn himself in. I mean, he's already clearly demonstrated that he's a man of integrity.

If they had any sense, they would have set his bail at $50,000.

.

angelatc
09-06-2013, 10:17 AM
To recap,

a) You don't know shit.

b) I'm a fucking saint for not calling you a dumb-ass motherfucker

Dude, I do payroll. I've passed out weekly, quarterly and annual bonuses based on production, seniority, personal profitability, department profitably attendance, and several other factors. I've given them to CEOs and part time mail sorters. But I've never passed out one to a guy who didn't know he was getting one. And I never passed out one to a forklift driver for an amount that was twice his annual salary.

Could it happen? Sure. Does it? Uh, no.

If you want to question my integrity, you'll have better luck doing it in a thread where you're not forced to make up scenarios to defend a guy who stole $50,000 from his employer.

Seriously, when your forced to resort to fantasy to defend your scenario, you should really step back and think that maybe - just maybe - you're wrong. Not gonna happen of course, but it should.

angelatc
09-06-2013, 10:22 AM
And there is no paperwork internal to the company or in my possession that says "we are super serious about giving the Free Hornet guy this money!".


There's no internal paperwork that says your employees are getting bonuses? Your boss just walks in and verbally instructs your payroll clerks to stick extra cash in the envelope? Nobody discusses the tax implications of putting it on separate checks?

So your bookkeeper could just hand out money, then claim that the boss wandered in and told her to give out the money as bonuses?

I'm going to to out on a limb here and guess that's not true.

And in the very least, if there's not a separate line item that says "Bonus" on the stub, someone is doing payroll wrong. But we already know in our hearts that the guy didn't have a stub that said "Bonus," don't we? He had a stub that said he either worked 4000 hours, or that his hourly wage went up to $2500.00 an hour.

newbitech
09-06-2013, 10:28 AM
Again, this isn't a law. These are guidelines for employers, giving the employers guidance on what is and isn't allowed. This doesn't set the collection procedures in stone.


Well for starters, it is the law in this case because the the relationship between the two parties is employee/employer. The form is a guideline, but I linked the statute that the guidelines are supported by.

I think the disagreement here really boils down to, "is the mistaken overpayment a payroll advance?". Can we agree on this premise and go from there?

1.) overpayment == advance == no crime of theft
OR
2.) overpayment == ??? == he is a theif

I am just wanting to know what you think ??? is.

I think you have to answer that question because I have shown where in this of relationship of employer/employee, State and Federal laws are pretty clear the employers act of mistakenly overpaying an employee is treated as a loan or payroll advance.

I appreciate the link for a similar situation. It is similar but not the same, since the two parties had no relationship at all. In that case, I do see where the man who allegedly "stole" the money was also sentenced to jail time but I was unable to determine if that was a plea deal or see the docket of the case etc..

I'd like to see some precedence where the relationship is employer/employee.

The reason I pointed out the state employee reference is because those policies are inline with State and Federal laws as well and go into greater detail on the actual process of what to do in that situation.

So, I think it is debatable on whether or not a mistaken overpayment should be considered an advance or a loan. What I don't think is debatable is that the State of Texas and the DOL interpretation if FLSA treats mistaken overpayments in the same regard as advances/loans.

newbitech
09-06-2013, 10:33 AM
"Oh crap I better hide this quick" is exactly what he did. He pulled it out of his regular bank account and moved it to a different bank, then correctly decided that wasn't safe either so he pulled it all out in cash.

There are perfectly legitimate reason to spread out money and deal in cash. There is no mens rea based on those actions. Also, just wanted to point out in the other case that you brought to my attention, the bank and the guys account both advised the man to treat the 110k as a gift. So, I am almost shocked he was sentenced. I wouldn't be surprised in the slightest if an overzealous prosecutor and a hostile judge coerced a plea deal. 60 days for grand theft? Sounds like the DA and judge needed to pad some stats.

georgiaboy
09-06-2013, 10:57 AM
decided to click on this thread to see how such an obvious title could garner 170+ posts. hoo-boy. the things folks will try to defend.

angelatc
09-06-2013, 11:01 AM
Well for starters, it is the law in this case because the the relationship between the two parties is employee/employer. The form is a guideline, but I linked the statute that the guidelines are supported by.


No you didn't. You showed me that one of the things an employer is allowed to deduct from pay is a loan repayment, and that the employer is allowed to consider wage over payment as a loan to be recovered. I don't want to teach a payroll class in this thread,, but some things, like child support, can be garnished from just about any money you have coming in. Other things can't be withheld from certain types of income. This is clarifying to the employer that the wage garnishment reached by mutual agreement for an overpayment can be considered a loan for purposes of determining which income can be attached.



You also showed me that the loan repayment can only be recovered in that manner if the employee agrees to it. I have not ever said that payroll deduct wasnt an option.

You have not shown me where the law states that is the only method that is legally permissible, and in fact, actually showed me an example of an alternative method.



I think the disagreement here really boils down to, "is the mistaken overpayment a payroll advance?". Can we agree on this premise and go from there?

1.) overpayment == advance == no crime of theft
OR
2.) overpayment == ??? == he is a theif

I am just wanting to know what you think ??? is.


The book you quoted does not state that a wage overpayment is an advance. It states that an employer can choose to recover a wage overpayment by treating it as an advance.

And I've already showed you the criminal statutes and the definitions therein that indicate that there is a case to be made for prosecuting this case as theft. I understand that you don't agree that the word "appropriate" means "control" even though the statute clearly says it means exactly that. There's nothing I can do about that.




I think you have to answer that question because I have shown where in this of relationship of employer/employee, State and Federal laws are pretty clear the employers act of mistakenly overpaying an employee is treated as a loan or payroll advance.

No, you have not shown any such thing. As I have explained over and over, you have discovered that employers are allowed to treat wage overpayment as an advance. Congratulations. That is not the same as requiring them to be treated as an advance.

And in fact, you even pointed out that ADP advises civil court, this contradicting your own contention.




I appreciate the link for a similar situation. It is similar but not the same, since the two parties had no relationship at all. In that case, I do see where the man who allegedly "stole" the money was also sentenced to jail time but I was unable to determine if that was a plea deal or see the docket of the case etc..

Google is your friend. I promise you that if you Google his name you'll find out that he's a twerp that talks about himself in the third person, has a mother that is an actor, and that the family gave him cash to make restitution in order to keep him out of prison. He had no legal right to the money.




I'd like to see some precedence where the relationship is employer/employee.

The reason I pointed out the state employee reference is because those policies are inline with State and Federal laws as well and go into greater detail on the actual process of what to do in that situation.

So, I think it is debatable on whether or not a mistaken overpayment should be considered an advance or a loan. What I don't think is debatable is that the State of Texas and the DOL interpretation if FLSA treats mistaken overpayments in the same regard as advances/loans.

I don't know why you think that I don't know payroll. I do payroll. I know payroll.

Federal law gives the employer the right to reverse payroll errors. The employee must be notified of that, which is why they make you sign a direct deposit from when signing up. (Please don't go off into the "maybe he didn't sign it! Maybe it was the best bonus ever! realm. If that was the case, the prosecutor would likely have remanded this to civil court.) That seems to again refute your contention that they must be handled as advances.

The sample form you linked to clearly says that the employee has no right to keep the money, which would jibe with the laws. The guy has absolutely no legal right to keep the money. If you want to see those precedents, I can show you suit after suit after suit where people lose claims for money found under similar circumstances.

You guys are hoping theres a loophole that will allow this guy to keep the money. There isn't.

angelatc
09-06-2013, 11:06 AM
There are perfectly legitimate reason to spread out money and deal in cash. There is no mens rea based on those actions. Also, just wanted to point out in the other case that you brought to my attention, the bank and the guys account both advised the man to treat the 110k as a gift. So, I am almost shocked he was sentenced. I wouldn't be surprised in the slightest if an overzealous prosecutor and a hostile judge coerced a plea deal. 60 days for grand theft? Sounds like the DA and judge needed to pad some stats.

So getting legal advice from a bank and an accountant isn't your best plan either.

Oh sure. But you said he didn't do that. You made it sound like he left it in his bank until he decided to spend it, but that's not what he did. He moved it out ASAP. First to another bank, then to cash.

newbitech
09-06-2013, 11:12 AM
and that the employer is allowed to consider wage over payment as a loan to be recovered.

before i go into any further, I think you are wrong about this.

It's not "the employer is allowed to consider"

it's

"DOL interpretation of FSLA and Texas Wage Commission considers"

newbitech
09-06-2013, 11:20 AM
So getting legal advice from a bank and an accountant isn't your best plan either.

Oh sure. But you said he didn't do that. You made it sound like he left it in his bank until he decided to spend it, but that's not what he did. He moved it out ASAP. First to another bank, then to cash.

I suppose these days its worth it to hire a lawyer to watch over every relationship transaction to avoid going to jail over someone else's mistake.

But I was talking about the other case you mentioned. In this case we don't have that kind of detail.

newbitech
09-06-2013, 11:21 AM
decided to click on this thread to see how such an obvious title could garner 170+ posts. hoo-boy. the things folks will try to defend.

its actually a pretty good study.

angelatc
09-06-2013, 11:24 AM
Newbitech, this letter is from 1999, and is related to California cases, but it clearly states that under California law, wage over payments could not be deducted from payroll. The employer had to seek remedy in the court system.
http://www.dir.ca.gov/dlse/opinions/1999-09-22-1.pdf


Again, let me ask you to think with logic for a second. If the guy had received $50 million instead of $50,000 - would it make any sense at all to limit the employer to seeking restitution only through payroll deduction?

angelatc
09-06-2013, 11:26 AM
I suppose these days its worth it to hire a lawyer to watch over every relationship transaction to avoid going to jail over someone else's mistake.



If you don't seek to profit from other people's mistakes, I think you'll be alright.

angelatc
09-06-2013, 11:30 AM
before i go into any further, I think you are wrong about this.

It's not "the employer is allowed to consider"

it's

"DOL interpretation of FSLA and Texas Wage Commission considers"

And again, I do payroll. I know exactly what they're saying. The employer might wish to consider this to be handled like child support, meaning essentially that it they can attach everything and anything to recover the money. This limits the employer to using the same rules as a payroll advance, *if* they have the consent of the employee to pay it back that way.

The employer is not prohibited from using other legal methods of collection. And so far nothing you've shown me indicates that it is illegal for them to pursue criminal charges.

newbitech
09-06-2013, 11:36 AM
Newbitech, this letter is from 1999, and is related to California cases, but it clearly states that under California law, wage over payments could not be deducted from payroll. The employer had to seek remedy in the court system.
http://www.dir.ca.gov/dlse/opinions/1999-09-22-1.pdf


Again, let me ask you to think with logic for a second. If the guy had received $50 million instead of $50,000 - would it make any sense at all to limit the employer to seeking restitution only through payroll deduction?

Ok, I think you are hung up on the payroll deduction part. But to answer your question, No.
I don't think it makes sense to limit the employer to RESTITUTION only thru payroll deduction.

There are some other things that I don't think make sense either.

1.) the company not using FDIC laws to reverse the transaction
2.) the company making that big a mistake in the first place
3.) knocking on the guys door to try to collect $50k
4.) harassing and threatening legal action over the phone
5.) the guy being charged as a criminal for grand theft

But, I am not going to ask you to logically think about those things because I don't think we are going to agree on some basic premise. For instance, you already think the guy had the intent to deprive the owner of his property. You already think that I am looking for a reason for the guy to keep the money.

So just those couple of things I will have to convince you to set aside in your mind first before I can ask you to pursue the logical path that I am on.

1.) I don't know why the guy acted the way he did, and absent that knowledge or some evidence that makes it obvious, I won't conclude anything about his motive.
2.) I don't think he should keep the money, never did.

newbitech
09-06-2013, 11:44 AM
And again, I do payroll. I know exactly what they're saying. The employer might wish to consider this to be handled like child support, meaning essentially that it they can attach everything and anything to recover the money. This limits the employer to using the same rules as a payroll advance, *if* they have the consent of the employee to pay it back that way.

The employer is not prohibited from using other legal methods of collection. And so far nothing you've shown me indicates that it is illegal for them to pursue criminal charges.

You cannot attempt to collect a debt by hiring a strong man to go to someones house and put a gun to their face and threaten them with kidnapping and caging them!

You cannot attempt to collect a debt by making harassing and threatening phone calls!

They may pursue criminal charges all they want, but if they want a conviction, they have to prove the guy stole the money!

The criminal defense in this case is easy, given the evidence we have. The money was a payroll advance. Case closed.

Again we can debate whether or not a mistaken overpayment *should* be considered a payroll advance, but its pretty clear that Federal and State laws views it as such.

now as far as how the company should proceed since their criminal case is essentially DOA, at least if the system is sane, they obviously can't deduct the funds from payroll, so they will want to pursue a civil case and place liens.

That is about it.

Apparently they thought that the best course of action to take was using force against him. We'll see how that works out.

angelatc
09-06-2013, 11:46 AM
http://workforcesecurity.doleta.gov/unemploy/pdf/uilawcompar/2004/overpayments.pdf

You'll have to click on this to see the whole context, but this document deals with overpayments. Nowhere in it does it say that employers are required to use payroll deduction to collect the debt.


RECOVERY PROVISIONS

—All state laws provide for recovering be nefits paid to workers who later are found not to be entitled to them. In addition to direct repayment, states utilize several tools to recoup these funds. States may, at the discretion of the agency, recover overpayments by deducting from future benefits payable (benefit offset).

The way I read it, this is what Texas says


TX; Class B misdemeanor if the value of the amount of money obtained or sought to be obtained is less than $300, Class A misdemeanor if the money is $300-$1,000, 3rd degree felony if value of the money is $1,000 - $5,000, or a 2nd degree felony if the value of money exceeds $5,000,


Also, reading some cites that aren't credible enough to be linked, I've seen people be told that while it isn't illegal to not tell the employer about the mistake, any attempt to hide the money and the refusal to return it can and will result in criminal prosecution. So I"m thinking there are precedents out there - I just don't have a subscription to a legal database to pull them up.

newbitech
09-06-2013, 11:49 AM
http://workforcesecurity.doleta.gov/unemploy/pdf/uilawcompar/2004/overpayments.pdf

You'll have to click on this to see the whole context, but this document deals with overpayments.

The way I read it, this is what Texas says

I did see a lot of info on unemployment compensation overpayments. I didn't pursue that path because I didn't think it would really fit in this case, since it's not unemployment benefits we are talking about.

newbitech
09-06-2013, 11:58 AM
http://workforcesecurity.doleta.gov/unemploy/pdf/uilawcompar/2004/overpayments.pdf

You'll have to click on this to see the whole context, but this document deals with overpayments. Nowhere in it does it say that employers are required to use payroll deduction to collect the debt.

The way I read it, this is what Texas says



Also, reading some cites that aren't credible enough to be linked, I've seen people be told that while it isn't illegal to not tell the employer about the mistake, any attempt to hide the money and the refusal to return it can and will result in criminal prosecution. So I"m thinking there are precedents out there - I just don't have a subscription to a legal database to pull them up.

I've seen that too. To me, that is a threatening way for a company to deal with a mistake that the company made, and I think it's wrong to threaten people when the consequences of my mistake are my responsibility and my responsibility alone.

I am sure there is legal recourse, and I am sure that mistakes like this are quite common with the advent of direct deposit and automated payroll systems prone to computer errors. I just don't think it is common or standard practice, and maybe even unlawful to make those types of threats, considering labor laws treat these types of mistakes as loans or advances.

I mean put the shoe on the other foot. Think about the situations where a company is held responsible for underpaying employees overtime. That was big news and you probably know about. See anyone marched off to jail over that? Don't think so.

angelatc
09-06-2013, 12:07 PM
Ok, I think you are hung up on the payroll deduction part. But to answer your question, No.
I don't think it makes sense to limit the employer to RESTITUTION only thru payroll deduction.

There are some other things that I don't think make sense either.

1.) the company not using FDIC laws to reverse the transaction
2.) the company making that big a mistake in the first place
3.) knocking on the guys door to try to collect $50k
4.) harassing and threatening legal action over the phone
5.) the guy being charged as a criminal for grand theft

But, I am not going to ask you to logically think about those things because I don't think we are going to agree on some basic premise. For instance, you already think the guy had the intent to deprive the owner of his property. You already think that I am looking for a reason for the guy to keep the money.

So just those couple of things I will have to convince you to set aside in your mind first before I can ask you to pursue the logical path that I am on.

1.) I don't know why the guy acted the way he did, and absent that knowledge or some evidence that makes it obvious, I won't conclude anything about his motive.
2.) I don't think he should keep the money, never did.

1.) the company not using FDIC laws to reverse the transaction

The FDIC doesn't make the recovery laws. There's an electronic clearing house that sets the regulations - I don't remember their initial right off the top of my head though. The employer has only 5 days to reverse a deposit that was made in error. Since your boy took the money out, that wasn't a possibility.


2.) the company making that big a mistake in the first place

That mistake was small. One single misplaced decimal point. The consequences were big. ( But my mind boggles that the same people who can't conceive of this have no problem thinking that perhaps a 100x increase in salary was actually some sort of an intentional bonus.)

3.) knocking on the guys door to try to collect $50k

Indicates that perhaps he stopped showing up to work, don't you think? And in any event - you find it objectionable to try talk to people before getting the cops involved?

4.) harassing and threatening legal action over the phone No court in the world would count a single phone conversation as harassment, and offering the guy the chance to avoid getting entangled in the legal system is a bad thing?

5.) the guy being charged as a criminal for grand theft - I wouldn't have expected it, but I don't blame them for pursuing that avenue. The guy stole their money.

angelatc
09-06-2013, 12:11 PM
I did see a lot of info on unemployment compensation overpayments. I didn't pursue that path because I didn't think it would really fit in this case, since it's not unemployment benefits we are talking about.

LOLz - you're 100% right. Says right there in the first line - UI benefits. I glossed right over that. Sorry for the diversion.

angelatc
09-06-2013, 12:22 PM
I mean put the shoe on the other foot. Think about the situations where a company is held responsible for underpaying employees overtime. That was big news and you probably know about. See anyone marched off to jail over that? Don't think so.

??? The DOL has lots of criminal penalties on the books for wage violations. Accidentally violate child labor laws and you're potentially facing serious prison time.

And I've certainly seen several brokers marched off to jail for using money that wasn't theirs, even once when the check was indeed made out to them personally.

newbitech
09-06-2013, 12:43 PM
1.) the company not using FDIC laws to reverse the transaction

The FDIC doesn't make the recovery laws. There's an electronic clearing house that sets the regulations - I don't remember their initial right off the top of my head though. The employer has only 5 days to reverse a deposit that was made in error. Since your boy took the money out, that wasn't a possibility.


2.) the company making that big a mistake in the first place

That mistake was small. One single misplaced decimal point. The consequences were big. ( But my mind boggles that the same people who can't conceive of this have no problem thinking that perhaps a 100x increase in salary was actually some sort of an intentional bonus.)

3.) knocking on the guys door to try to collect $50k

Indicates that perhaps he stopped showing up to work, don't you think? And in any event - you find it objectionable to try talk to people before getting the cops involved?

4.) harassing and threatening legal action over the phone No court in the world would count a single phone conversation as harassment, and offering the guy the chance to avoid getting entangled in the legal system is a bad thing?

5.) the guy being charged as a criminal for grand theft - I wouldn't have expected it, but I don't blame them for pursuing that avenue. The guy stole their money.


on point 1.) I think you might want to check out what was available to the company regarding erroneous EFT's
http://www.fdic.gov/regulations/laws/rules/6500-500.html#fdic65001005.11

I am pretty sure direct deposit is and Electronic Funds Transfer, so FDIC is the governing body. Correct me if I am wrong please.

2.) Yeah, i was referring to the consequences. I understand how a decimal point error could be made. Not sure if the error only impacted this one employee or not tho. I really can't make any assumptions about what the guy thought when the money showed up in his account. The story didn't really cover those details. We just know that the law puts overpayment mistakes in the same category as loans and advances. AND if the guy did sign that recommended policy as the Texas Wage Commission suggests, or a similar policy, then it's pretty much in black and white that what showed up in his account was a loan or advance. So just taking the situation at face value, he had no reason to believe his salary was increase 100x's or he got a bonus. It was just an advance, according to the documentation that are available.

3.) Well, it sounds to me like it was probably someone trying to do some CYA to be honest. I have no idea if he stopped showing up to work. The only time I have ever known a representative of a company to show up at anyone's house it was because there was a relationship established beyond the work environment. The article indicates that the employer rep showed up to collect money, not to question if the guy was coming back to work.

And in this case, I find it objectionable to get the cops involved, period.

4.) Right, but showing up at the door + phone calls is harassment. Regardless if he pursue Consumer Protection Act legal definition of harassment, I think the company displayed the tendency to harass. And, as you said, 1 phone call. All we know that happened on that one phone call is that he was threatened with legal action and he refused the collection terms. (that is his right by the way according to the Texas Payday Law). So now he's a thief?

5.) I blame them for pursuing that avenue because there was a better option, and potentially an option that didn't put them at risk of violating the law themselves. He didn't steal their money. THEY GAVE IT TO HIM.

newbitech
09-06-2013, 12:46 PM
??? The DOL has lots of criminal penalties on the books for wage violations. Accidentally violate child labor laws and you're potentially facing serious prison time.

And I've certainly seen several brokers marched off to jail for using money that wasn't theirs, even once when the check was indeed made out to them personally.

Right, but there is not a wage violation here. I think we agree on that. So since we know that the DOL has criminal code for labor disputes, why don't they have a criminal code for this type of dispute? Perhaps the end result of this debate is that they should?

Currently, there is no criminal law in this case that says a mistake by the payroll department in overpaying/underpaying an employee has criminal consequences for anyone. Are you aware of any that fit this case?

for example

http://www.lexology.com/library/detail.aspx?g=21f6878d-914a-41ed-890f-ef924c9cd771

Do you think that when confronted by employees that the Hutco said oh sure we owe you that money here let us make out that 2 million check right away?

no they didn't. They refused to pay those employees what was owed to them. In the mean time, Hutco moved that money all over the place doing whatever they wanted to do with it.

Anyone from Hutco go to jail? Nerp...

The Free Hornet
09-06-2013, 01:11 PM
Dude, I do payroll. I've passed out weekly, quarterly and annual bonuses based on production, seniority, personal profitability, department profitably attendance, and several other factors. I've given them to CEOs and part time mail sorters. But I've never passed out one to a guy who didn't know he was getting one. And I never passed out one to a forklift driver for an amount that was twice his annual salary.

Could it happen? Sure. Does it? Uh, no.

If you want to question my integrity, you'll have better luck doing it in a thread where you're not forced to make up scenarios to defend a guy who stole $50,000 from his employer.

Seriously, when your forced to resort to fantasy to defend your scenario, you should really step back and think that maybe - just maybe - you're wrong. Not gonna happen of course, but it should.

A) He sure as hell didn't steal the money. It is doubtful it meets even the sketchiest definition of theft.

B) I've done payroll too. I *SUMCHECK* the hours. I note the $TOTALS$. The mistake in question seems sketchy ("$992.75 ---> $99,275"). In payroll I've seen for hourly workers, you type in the hours and the other totals autocomplete. If "80.25" hours was miskeyed as "8025" hours, that would make more sense (or the wage like you suggest $11.15-->$1115). Either way, I cannot excuse payroll from an extreme degree of liability here. Putting it all on Cesar is bullshit. You believe in personal responsibility, right? Where is Texas Steel taking responsibility here?

You seem to agree that the official story doesn't match how payroll is typically done:


And in the very least, if there's not a separate line item that says "Bonus" on the stub, someone is doing payroll wrong. But we already know in our hearts that the guy didn't have a stub that said "Bonus," don't we? He had a stub that said he either worked 4000 hours, or that his hourly wage went up to $2500.00 an hour.

It doesn't make sense. What kind of weird ass software are they using? If it was a manual process, then they *SAW* the check and hand signed or hand stamped it. It it was an automatic process, the error ought to have occurred differently.

C) YES, I question the integrity of people wanting the police involved via needless escalation to a criminal matter. This is a sub-six-figure mistake on Cesar's end (after tax) and even in total (he was due, unquestionably, some of the money). The false arrest is a six figure mistake. Ten years imprisonment will cause the actual THEFT from Texas citizens about $250,000:

http://www.libertarianprepper.com/wp-content/uploads/2012/07/ron-paul-do-not-steal.jpg

Doesn't anybody complain about the state stealing money anymore?

D) YES, I question your integrity since you didn't call on the Texas Steel Conversion CEO to be charged with theft as well. If Cesar isn't guilty, they sure as hell - by your reasoning - are.

E) Re bonuses. Where I'm at, workers know they're getting a bonus when it is on their check not before. Highly compensated people are commissioned (they would have the most paper to back up their checks). The ownership/management knows about their bonus, but there is no paper trail that I'm aware of to confirm the company was "super serious" about the money. The CHECK is the communication of intent. If you don't intend to give them the money, then you don't fucking give them the money. This isn't fantasy, it is truth.


There's no internal paperwork that says your employees are getting bonuses? Your boss just walks in and verbally instructs your payroll clerks to stick extra cash in the envelope? Nobody discusses the tax implications of putting it on separate checks?

Not really and nothing the bonus receiver will see. There are no payroll clerks. Ownership takes check generation seriously (multiple signatures are required for large checks and this is enforced by the bank which will call to confirm if a signature is missing). Separate checks have separate deductions for witholding, SS, 401, etc. No biggie.

F) Guy driving fork truck. Maybe you believe a guy driving a fork truck can't get a huge ass bonus. I believe in America, not in laws that say who earns how much or in a predjudicial system that says this job or ethnicity is worth X amount of dollars.

G) If I come to your house and hand you a check for $60,000 it doesn't matter what it is for. Maybe you sold a $6 candybar and I just tip really really well or suck at math. It becomes your damn money and me getting it back requires a CIVIL court action. That he had a job and could even be in a position to earn a bonus or get an advance - for which $98,000 is not unusual enough to be evidence of anything - are more reasons to consider it not theft.

angelatc
09-06-2013, 01:32 PM
on point 1.) I think you might want to check out what was available to the company regarding erroneous EFT's
http://www.fdic.gov/regulations/laws/rules/6500-500.html#fdic65001005.11

I am pretty sure direct deposit is and Electronic Funds Transfer, so FDIC is the governing body. Correct me if I am wrong please.

Seriously, dude? I mean, what would it possibly matter if I were to tell you that the group that sets the law about reversing the direct deposits is actually the NACHA?





2.) Yeah, i was referring to the consequences. I understand how a decimal point error could be made. Not sure if the error only impacted this one employee or not tho. I really can't make any assumptions about what the guy thought when the money showed up in his account. The story didn't really cover those details. We just know that the law puts overpayment mistakes in the same category as loans and advances.

AND if the guy did sign that recommended policy as the Texas Wage Commission suggests, or a similar policy, then it's pretty much in black and white that what showed up in his account was a loan or advance. So just taking the situation at face value, he had no reason to believe his salary was increase 100x's or he got a bonus. It was just an advance, according to the documentation that are available.

No, that's not true and you should stop saying it like that. We know that overpayment mistakes can be treated as a loan for purposes of payroll deduction, but that's at the sole discretion of the employer.

I love you to death, but it's absurd to think that the guy believed that his employer just decided to loan him, interest free and without any application process or repayment agreement, a gross sum roughly equal to 100 weeks of his net salary.







3.) Well, it sounds to me like it was probably someone trying to do some CYA to be honest. I have no idea if he stopped showing up to work. The only time I have ever known a representative of a company to show up at anyone's house it was because there was a relationship established beyond the work environment. The article indicates that the employer rep showed up to collect money, not to question if the guy was coming back to work.

And in this case, I find it objectionable to get the cops involved, period.

So, what was the right way to try to talk to him? You object to them sending the cops, you object to them sending an employee out, and you object to them phoning him, and you apparently object to them trying to recover their money at all, even though I've already established that he has no legal right to keep it.




4.) Right, but showing up at the door + phone calls is harassment. Regardless if he pursue Consumer Protection Act legal definition of harassment, I think the company displayed the tendency to harass. And, as you said, 1 phone call. All we know that happened on that one phone call is that he was threatened with legal action and he refused the collection terms. (that is his right by the way according to the Texas Payday Law). So now he's a thief?


The way I remember it, he wasn't even man enough to talk to them face to face, so they called him. That's not harassment. And with regard to the second half, he was morally a thief the minute he decided to keep someone else's money. But legally, he wasn't a thief until he refused to give the money back. I suspect that legally he would have been better off if he had not talked to them at all.


5.) I blame them for pursuing that avenue because there was a better option, and potentially an option that didn't put them at risk of violating the law themselves. He didn't steal their money. THEY GAVE IT TO HIM.

"They" didn't "give him" anything. The bookkeeper made a mistake that resulted in a large sum of money landing in his bank account. It could of been anybody that got the money, but it just happened to be him. That's not a gift.

I disagree that the option to recover the money via payroll deduction was better for the victim, for reasons that I outlined above.

angelatc
09-06-2013, 01:54 PM
[QUOTE]
It doesn't make sense. What kind of weird ass software are they using? If it was a manual process, then they *SAW* the check and hand signed or hand stamped it. It it was an automatic process, the error ought to have occurred differently.

It makes perfect sense. And it wasn't a check. It was direct deposit. If they were using a third party system, the home office never sees the stubs. They are delivered in an overnight envelope the day before payday, all sealed up in envelopes to be passed out by a supervisor.

The bookkeeper should have noticed that the payroll was for far more than it should be, but that' doesn't give the guy any legal right to keep the money. None, nada, zero, zip.



C) YES, I question the integrity of people wanting the police involved via needless escalation to a criminal matter. This is a sub-six-figure mistake on Cesar's end (after tax) and even in total (he was due, unquestionably, some of the money). The false arrest is a six figure mistake. Ten years imprisonment will cause the actual THEFT from Texas citizens about $250,000:

You have no idea if it was a needless escalation. But I'd say someone who is holding $50,000 of my money, made an effort to hide it, and has indicated he has at minimum no plan to return it should expect that the police would become involved at some point.






D) YES, I question your integrity since you didn't call on the Texas Steel Conversion CEO to be charged with theft as well. If Cesar isn't guilty, they sure as hell - by your reasoning - are.

No, because they are not in possession of his property. They stole nothing from him.




E) Re bonuses. Where I'm at, workers know they're getting a bonus when it is on their check not before. Highly compensated people are commissioned (they would have the most paper to back up their checks). The ownership/management knows about their bonus, but there is no paper trail that I'm aware of to confirm the company was "super serious" about the money. The CHECK is the communication of intent. If you don't intend to give them the money, then you don't fucking give them the money. This isn't fantasy, it is truth.

.....nothing the bonus receiver will see.


And yet these people did not intend to give him the money, and yet the money ended up in his bank account. That's the truth.

And I don't know what kind of payroll software you are using, but bonus wages are reported on the stub under the category "Bonus." They are taxed differently if they are issued on a separate check than if they are added to the regular paycheck, too.

There is zero evidence to support any indication that this payment appeared on his stub as a bonus.




F) Guy driving fork truck. Maybe you believe a guy driving a fork truck can't get a huge ass bonus. I believe in America, not in laws that say who earns how much or in a predjudicial system that says this job or ethnicity is worth X amount of dollars.

The laws of economics dictate wages. IF this guy was getting a bonus, which he wasn't, he would not be getting a bonus that was equal to 10x's his annual salary unless he saved the owner's daughter from drowning or something. It's nice that you are still young enough to believe in fairy tales, but trust me on this: Not. Gonna. Happen. Ever.




G) If I come to your house and hand you a check for $60,000 it doesn't matter what it is for. Maybe you sold a $6 candybar and I just tip really really well or suck at math. It becomes your damn money and me getting it back requires a CIVIL court action. That he had a job and could even be in a position to earn a bonus or get an advance - for which $98,000 is not unusual enough to be evidence of anything - are more reasons to consider it not theft.

You could not be any more wrong. If you agree to pay me $60.00 then accidentally send me a check for $6000.00 you do indeed have legal recourse to collect the overpayment, and I have absolutely no legal right to keep the money. If I refuse to give you the money, you can seek to use the legal system to recover it. I don't get to choose which court you're going to go to.

This guy isn't the first person ever to be convicted for criminal theft for refusing to return money that was paid in error. I cited a case above. Here's another one.
(http://www.millercanfield.com/publications-alerts-144.html) You can screech all you want about how unfair it is, but that's just your opinion. But the fact is that there are legal precedents, and apparently the DA in Texas is aware of them even though you and the thief in Texas are not.

The Free Hornet
09-06-2013, 02:01 PM
You could not be any more wrong. If you agree to pay me $60.00 then accidentally send me a check for $6000.00 you do indeed have legal recourse to collect the overpayment, and I have absolutely no legal right to keep the money. If I refuse to give you the money, you can seek to use the legal system to recover it. I don't get to choose which court you're going to go to.

Stop lying! I said there is legal recourse. I have said that repeatedly.

You do it in a civil court of law. The paragraph you quoted, I mention this:


G) If I come to your house and hand you a check for $60,000 it doesn't matter what it is for. Maybe you sold a $6 candybar and I just tip really really well or suck at math. It becomes your damn money and me getting it back requires a CIVIL court action. That he had a job and could even be in a position to earn a bonus or get an advance - for which $98,000 is not unusual enough to be evidence of anything - are more reasons to consider it not theft.

The fundamental issue is involving the police, prematurely, in what ought to be a civil dispute. I also acknowledged in an earlier post that sometimes the local sheriff's office is involved serving/collecting on behalf of civil court actions.

I'll even acknowledge that someone disobeying or disregarding a civil court judgement can fun afoul of the law (criminal contempt). None of this has been denied. Stop misrepresenting the issue.

newbitech
09-06-2013, 02:50 PM
Seriously, dude? I mean, what would it possibly matter if I were to tell you that the group that sets the law about reversing the direct deposits is actually the NACHA?


No, that's not true and you should stop saying it like that. We know that overpayment mistakes can be treated as a loan for purposes of payroll deduction, but that's at the sole discretion of the employer.

I love you to death, but it's absurd to think that the guy believed that his employer just decided to loan him, interest free and without any application process or repayment agreement, a gross sum roughly equal to 100 weeks of his net salary.








So, what was the right way to try to talk to him? You object to them sending the cops, you object to them sending an employee out, and you object to them phoning him, and you apparently object to them trying to recover their money at all, even though I've already established that he has no legal right to keep it.





The way I remember it, he wasn't even man enough to talk to them face to face, so they called him. That's not harassment. And with regard to the second half, he was morally a thief the minute he decided to keep someone else's money. But legally, he wasn't a thief until he refused to give the money back. I suspect that legally he would have been better off if he had not talked to them at all.



"They" didn't "give him" anything. The bookkeeper made a mistake that resulted in a large sum of money landing in his bank account. It could of been anybody that got the money, but it just happened to be him. That's not a gift.

I disagree that the option to recover the money via payroll deduction was better for the victim, for reasons that I outlined above.

1.) seriously I don't know. From what I could read and see, the direct deposit is an EFT. In my experience, and erroneous EFT is handled by contacting the bank and showing evidence of the error. I have gone through this process and have had the funds provisionally credited to my account until the outcome of the investigation was resolved. What did suck was that until the specific FDIC mandated time period had elapsed for investigative purposes, the existing funds in my account that had nothing to do with the error were frozen. That was my personal experience with EFT. I have also seen deposit accounts get frozen in much the same manner, because of "usual account activity" when there was a surge in incoming EFT's.

I do not see how this is much difference from paying a stop check fee to prevent a check from clearing, except it appears that with EFT there are protections in place in the FDIC rules that govern EFT's to make sure an erroneous EFT can be challenge despite of the near instantaneous clearing of the transaction.

I'd like to see what NACHA has to say about it. Will you link me to the source of that?

2.) You are saying that the law does not consider overpayment mistakes from employer->employee in the same category as a loan or as an advance. I showed you where it does. In fact the Texas Wage Commission has put together a sample company policy for handling Wage Overpayment/Underpayment. There is a distinction between that policy and the sample policy they created for authorized deductions. Why do you think that is? Not only that, the guidance on the link that I pointed out as well as the verbatim text from the Texas Wage Commission explains WHY there is a distinction between the policies. It's actually a way for the employer to protect themselves.

I get that in this case, the law falls short of protecting the employer from themselves. At the same time, what I have said in this regard is in fact true.

3.) I am not sure what the company policy is in the matter, but I have looked at policy and procedure published publicly for government entities that makes sure those entities are in compliance with state and federal laws. I would recommend the company speak to their legal council and I believe the correct course of action would have been to start civil proceedings which would include sending documentation to the employee explaining IN WRITING the company's position. It is not clear if that did or did not happen.

I agree he has no legal right to keep it. It was an advance/loan/overpayment mistake that must be repaid. I do not object to the company establishing in writing these facts and presenting those facts in a legal AND civil way (typically in writing through a lawyer). It is not clear yet whether the path that the company took is legal, nor is it clear that the company provided the employee in writing the facts of what happened. For all we know, someone in the company told him the week before that he had a great idea and he would be compensated for it.

4.) Or maybe he wasn't home or maybe he didn't recognize who was at the door or maybe he was in the shower or maybe he was out back banging his billy goat. They still tried to come to his house to collect a debt. That is possibly a violation of the consumer protection act. http://en.wikipedia.org/wiki/Fair_Debt_Collection_Practices_Act

I know you have already prosecuted the man in your mind, but I think you can't do that if I am able to establish that the legal status of the money in his account is/was a payroll advance. Agree?

5.) we actually don't know who made the mistake. They refers to the company as a whole. Whoever did make the mistake was acting on behalf of "them". "them" being everyone at the company that participated in the entire incident.

No, I don't think it's a gift, I think the correct legal status of those funds is "a payroll advance".

I still think you are hung up on the deductions part. There is a clear distinction between deductions and wage overpayment/underpayment. We can work on clearing that up if we need to.

helmuth_hubener
09-07-2013, 10:54 AM
The fundamental issue is involving the police, prematurely, in what ought to be a civil dispute.Once again, what difference does it make if this is "criminal" or "civil"? This seems like an artificial and not inherently useful distinction. In a free society, would some things be "civil" and others be "criminal"? What's the difference? Are not the police involved in "civil" disputes? Of course they are, even in current-day USA, and certainly they would be in a free society as well. Forcible judgements need to be enforced.

X wrongs Y. If that wrong is one that libertarianism says can be rightly addressed by using violence, then force and violence and all of that jazz can be brought to bear against X. The goal being to make Y whole. In this situation, clearly X (Cesar) has wronged Y (steel company), and so whatever force and violence is necessary can (provided Y agrees, is not a pacifist or something) be brought to bear in order to remedy the situation. Is that civil? Is that criminal? Whatever you call it, it is using force to make Cesar comply and do the right thing, since he won't do it himself. That's what happens sometimes when you won't do the right thing. You get to do the right thing with a gun to your head.

So, in conclusion, let me say that it appears everyone here largely agrees with each other. Everyone thinks that Cesar should not have kept the money, and that the company should get it back:


2.) I don't think he should keep the money, never did.

I said there is legal recourse. I have said that repeatedly.

[M]e getting it back requires a CIVIL court action.

No one is saying there is not a legal way for the company to get the money back.

The main hang-up seems to just be over this civil vs. criminal thing. Free Hornet, newbitech, RickyJ, and a few others seem to:

a) be giving Cesar the benefit of the doubt as to good intentions, not being dishonest and despicable, etc. Now this is ridiculous because clearly he did act dishonestly and despicably, but I can understand the instinct to always take the side of the little guy, the "underdog".

b) Have a dislike for cops and don't like them kicking in doors, or indeed being involved in anything. Of course, this is the correct attitude and how all decent and informed people feel.

c) have an aversion to locking people in cages. I share that aversion, and perhaps angelatc does not, but whether or not incarceration is part of a civilized society is really a different issue than whether this man has dishonestly gotten this money from the company and needs to have it forcibly taken from him and returned to the company -- at gunpoint, if necessary. On that latter issue, we all seem to agree. The money is not his, and the company can legally get it back. "Legally" means: "with a gun".

angelatc
09-07-2013, 10:59 AM
c) have an aversion to locking people in cages. I share that aversion, and perhaps angelatc does not, but whether or not incarceration is part of a civilized society is really a different issue than whether this man has dishonestly gotten this money from the company and needs to have it forcibly taken from him and returned to the company -- at gunpoint, if necessary. On that latter issue, we all seem to agree. The money is not his, and the company can legally get it back. "Legally" means: "with a gun".

The problem is that he likely does not have all the money. A gun won't help that.

As for the rest of it, I'm not an anarchist. I believe that some people will agress, and the state should be an organization to defend against them.

I don't think they state wants him to be locked up. I think they will drop the charges when he pays the money back. I'm fine with that.

But I'm not against using force to make people do the right thing, and that's what this is.

As for the civil vs criminal - it's a game of cat and mouse. If the company had a lawyer that advised them that criminal charges could be levied instead of just pursuing some weak-sauce judgement against a guy with no assets who will likely change jobs every time they get a new order to attach his wages, then I say bully for them.

If he doesn't pay the money back, should he be sentenced and imprisoned as a thief? Well, it's either that or cut off his hand, I guess.

angelatc
09-07-2013, 11:18 AM
1
I know you have already prosecuted the man in your mind, but I think you can't do that if I am able to establish that the legal status of the money in his account is/was a payroll advance. Agree?


No.

I am not going to keep rehashing the same points over. You're mistaken in your interpretation of the employer's handbook section, but I can't seem to commuicate effectively on that subject, so I'm going to just have to live with the fact that you're wrong.

There is absolutely no law that says a payroll advance MUST be repaid by garnishment. In Texas, there are laws that say it can be.

US law views wage over payment in the same way it views a payday loan or advance ONLY in the respect that federal rules do not prohibit the employer from deducting the money from an employee's subsequent earned wages.

helmuth_hubener
09-07-2013, 11:26 AM
But I'm not against using force to make people do the right thing, and that's what this is. Anarchists (of the libertarian variety) are not against that either. I was not saying that forcing Cesar to do things -- at gunpoint, if necessary -- is bad. It isn't. I apologize if it came across that way. Defensive force-using, defensive coercion, defensive gun-pointing, all of that is allowed under libertarianism.


If he doesn't pay the money back, should he be sentenced and imprisoned as a thief? Well, it's either that or cut off his hand, I guess. Well, him being in prison doesn't get back the money either, in that case, and neither does the severing of his hand.

In a libertarian society, restitution to the victim is the number 1 priority of justice. So the agents of the law may do whatever is necessary to get that money back. If that means locking him up until he divulges the secret location of the cash, fine. It could also mean forced labor. Now Cesar will probably be more productive out of prison than in, so he would likely be put at large rather than kept in prison. That would be in the victim's best interests. He might be outfitted with a tracking bracelet or implant or something. Perhaps a spine-clamp which also serves to identify him as a criminal and the nature of his crime. Certainly detectives could feel free to violate his privacy and track down where the money went.

So you're right, slimeballs are slippery and should not be allowed to slip away. A free market in the provision and enforcement of justice would be far more likely to prevent him from slipping away. Because they actually have an incentive to do so. A monopolist does not have that incentive.

angelatc
09-07-2013, 11:46 AM
1.) seriously I don't know. From what I could read and see, the direct deposit is an EFT. In my experience, and erroneous EFT is handled by contacting the bank and showing evidence of the error. I have gone through this process and have had the funds provisionally credited to my account until the outcome of the investigation was resolved. What did suck was that until the specific FDIC mandated time period had elapsed for investigative purposes, the existing funds in my account that had nothing to do with the error were frozen. That was my personal experience with EFT. I have also seen deposit accounts get frozen in much the same manner, because of "usual account activity" when there was a surge in incoming EFT's. .


As a consumer, you have 60 days from the receipt of your statement to challenge money taken out of your account via ACH. That's a different rule. Reversing a deposit made in error must be done in 5 days. No bank visit required - the same software that generated the transfer can generate the reversal.

If you doubt my word that te NACHA writes the rules for reversals, I encourage you to check the FDIC regulations, http://www.fdic.gov/regulations/information/ebanking/66FR15187.pdf




2(m) Unauthorized Electronic Fund Transfer


Certain payments often are made to a
consumer’s account through the ACH,
such as direct deposits of payroll or
government benefits. NACHA rules
permit reversal of payments made in
error in limited circumstances.
Comment 2(m)–5 is added, with some
modifications from the proposal, to
clarify that reversals of certain direct
deposits that were made in error are not
‘‘unauthorized’’ EFTs. The last sentence
in paragraph (iii) of the proposed
comment, referring to a dispute about
whether the account holder is entitled
to a certain amount, has been deleted

If you want to read the NHCHA rules, they're here: http://www.achrulesonline.org/achrules.aspx User name Ron Paul, password RonPaul

angelatc
09-07-2013, 12:19 PM
Well, him being in prison doesn't get back the money either, in that case, and neither does the severing of his hand.

There's a distinct chance they'll never get the money back.


In a libertarian society, restitution to the victim is the number 1 priority of justice. So the agents of the law may do whatever is necessary to get that money back. If that means locking him up until he divulges the secret location of the cash, fine. It could also mean forced labor. Now Cesar will probably be more productive out of prison than in, so he would likely be put at large rather than kept in prison. That would be in the victim's best interests. He might be outfitted with a tracking bracelet or implant or something. Perhaps a spine-clamp which also serves to identify him as a criminal and the nature of his crime. Certainly detectives could feel free to violate his privacy and track down where the money went.

Too much power for the state. It is fine on paper, but once they start adding court costs, attorney fees, interest....eventually you have an actual incentive to barnd people as theives to force them into perennial indentured labor.


So you're right, slimeballs are slippery and should not be allowed to slip away. A free market in the provision and enforcement of justice would be far more likely to prevent him from slipping away. Because they actually have an incentive to do so. A monopolist does not have that incentive.

There's certainly no perfect system. But have I mentioned I've done payroll? :) Civil judgements are the worst possible solution, imho.

The Free Hornet
09-07-2013, 02:55 PM
Once again, what difference does it make if this is "criminal" or "civil"? This seems like an artificial and not inherently useful distinction.

Civil proceedings are required to determine who owes what or if nobody owes anything. So that $53,221.79 he got after tax, adjudication must decide (assuming they don't come to an agreement themselves):

- how much is pay Cesar is due?
- was there an employment contract? what did it say?
- how much is vacation Cesar may be due (depending on the company's internal policy)?
- how much is extra pay or bonus? [subpoena the records to find out how much ownership, top management, and other employees have been given at Texas Steel Conversion]
- how much is compensation for legal difficulties and costs caused by Texas Steel Conversion?
- how much is compensation for accounting costs and time lost caused by Texas Steel Conversion?
- how much is compensation for a false arrest and police report?

More so, a civil proceeding will look at the details if Cesar owes money:

- is this a payroll advance or loan, ought Cesar to return to work or make regular payments?
- if a loan, what is the interest rate?
- is $X due immediately?
- how much does Cesar have in assets now, what is to be paid?
- if Texas Steel Conversion owes Cesar additional money, what are their payment terms?

To sum:

CRIMINAL - donut munching cop makes piss poor analogy and doesn't know shit:
"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department. This route could cost Texas taxpayers $250,000 if Cesar serves 10 years and I doubt it gets any money back for Texas Steel Conversion.

CIVIL - Tax, payroll, accounting experts and bar-certified Judge weigh the law, the facts at hand and come to a hopefully reasonable solution to accomodate all sides with minimal additional expense (as that only hurts the pockets of Texas Steel Conversion and Cesar).



So, in conclusion, let me say that it appears everyone here largely agrees with each other. Everyone thinks that Cesar should not have kept the money, and that the company should get it back:

No, I think a Judge or Jury needs to decide if the two sides can't come to an agreement. Texas Steel Conversion admits to owing him a paycheck. The size of that paycheck is one of the issues as well as the costs of their screwups.

"Ought Cesar have kept the money?" The issue - IMO! - is if the money is to be returned, how ought to be returned and what sum. I would have at least an accountant and maybe a lawyer as well in my service and would expect Texas Steel Conversion to pay for those.

I'm not going to slosh around $53,221.79 without some damn solid paperwork explaining the implications.

This is a large payroll error and not like returning a lost scarf.


In a libertarian society, restitution to the victim is the number 1 priority of justice.

Not when you fuck yourself.

Not when you don't bother to use a civil court, tax or legal experts.

Not when NOBODY initiated violence against you or engaged in fraud.

If I'm solving crimes, victims of violence are at the top ("number 1 priority of justice") and people that give away their money and later regret it are among the least of my priorities. But, hey, that's just me.

angelatc
09-07-2013, 04:20 PM
CRIMINAL - donut munching cop makes piss poor analogy and doesn't know shit:
"It's kind of like if you saw money sitting on the register, you know it's not yours. If you don't make attempts to find the owner, then you're committing theft," said Officer Kelley McKethan, Bryan Police Department. This route could cost Texas taxpayers $250,000 if Cesar serves 10 years and I doubt it gets any money back for Texas Steel Conversion..

Riiiiight. Maybe you don't know this, but most police departments have financial crime divisions. It's pretty likely they investigated this and determined that there were sufficient grounds to file a criminal instead of a civil case. Hence the use of the word "Investigators" in their statement.


Not when you don't bother to use a civil court, tax or legal experts.

It's pretty hysterical to see you assuming they don't have any expert legal advice just because they're not handling this case the way you think they should. Even though we're not experts, we've shown you several other cases of unreimbursed deposit errors being prosecuted criminally.

newbitech
09-08-2013, 12:23 PM
As a consumer, you have 60 days from the receipt of your statement to challenge money taken out of your account via ACH. That's a different rule. Reversing a deposit made in error must be done in 5 days. No bank visit required - the same software that generated the transfer can generate the reversal.

If you doubt my word that te NACHA writes the rules for reversals, I encourage you to check the FDIC regulations, http://www.fdic.gov/regulations/information/ebanking/66FR15187.pdf




If you want to read the NHCHA rules, they're here: http://www.achrulesonline.org/achrules.aspx User name Ron Paul, password RonPaul

Thanks for the links, in trying to understand these rules, I wanted to know what the definition of "Settlement Date" was. I came across a rather interesting discussion.

http://www.bankersonline.com/technology/guru2006/gurus_tech070306c.html

NACHA's Settlement Date or Reg E's Statement Date? (Reg E of the Electronic Funds Transfer Act)

While this specific case is different, the question I believe still remains. What is the appropriate rules/laws to apply and more importantly WHEN?

Nacha appears to be the industry "rule book", while EFTA is the legal basis for which those rules are written. In terms of liability, I think that EFTA is the appropriate law to source.

You are right tho, from what I could read in the NACHA rules and from what I gathered in the discussion I linked, the company had 5 days after the funds what "cleared"? to process a reversal.

So obviously if that mistake took more than 5 days after the reversal to be recognized, NACHA was not going to help the company out in reversing and recovering from their mistake.

So now, the question becomes that of the EFTA which states that if the company properly notifies the bank within 60 days of the unauthorized transactions they have ZERO liability.

EFTA also goes on to state that there is liability proportional to the amount of time greater than 60 days to the time of notification. Since this particular transactions is considered an erroneous entry that 60 days is furthered extended to included the amount of time it takes to recognize the error on a regular periodic statements.

I draw your attention to the Comptrollers Handbook, Consumer Compliance Examination, which analyzes Regulation E of the ETFA.

Section V. Consumer Liability and Error Resolution.

http://www.occ.gov/publications/publications-by-type/comptrollers-handbook/efteare.pdf

So still maintain that this case is governed by that law. The NACHA rules would have been helpful if the company was aware of their mistake quickly enough to reverse the transaction, but clearly that is not the case. NACHA has no provisions for actually liability, however the company is still able to 100% indemnify themselves under Federal for a time period between 60 and 90 days after their mistake.

After 90 days, it is quite clear that the law places liability on the company.

So if they didn't discover their error more than 90 days (assuming 30 day mailing cycles for statements) or if they simply failed to notify the bank of the erroneous and unauthorized amount the law makes it clear that they will be liable for the loss of a portion, up to ALL of those funds.

That is because they have to provide documentation and the burden of proof is on the financial institution to show that the transaction was authorized. If the company does not provide any evidence that the transaction was unauthorized, then the financial institution and the EFTA considers that transaction to be valid and authorized.

So I have a couple questions/observations
1.) If the concern was to recover their alleged stolen property, why did the not go to the bank, since the bank controls those funds for them?
2.) They had 90 days from the time the direct deposit cleared to notify the bank and have 0 ZERO liability for the erroneous transaction.
3.) In fact, even if there was some extenuating circumstances 90 days from Feb 1 is May 1. So even if they went to the bank right now, they could recover a huge chunk of their mistake.
4.) The bank would have provisionally credited their account already had they made this inquiry within 90 days.
5.) There was absolutely no reason to approach the employee or go to the police to recover these misappropriated funds which the company is 100% at fault for misappropriating.
6.) Two sets of laws Employment laws with regards to overpayment in the category of a loan/advance, and Finance law wrt EFT both seem to indicate that the liability for this mistake is 100% in the company's hands. No where so far have I seen anything that have nullified any of those laws in this case.
7.) The best criminal law we have is the theft by misappropriation. I think it's pretty clear that the company did the misappropriating in this case.
8.) Perhaps they did go to the bank and have already recovered their money and now they are trying to punish the former employee for daring to control the funds in his account?


We could go on and on about this. I think you've made some great points and showed me some things that I wouldn't have known about since you are in payroll and ***edit *I have no knowledge* have no knowledge of any of that stuff.

I can't really cast any judgement on the guy cause I don't have all the facts. Knowing what I know about banking (worked in the "engine room" for a bank for 4 years), there was a very easy path for a responsible company to correct this error. A path that didn't involve publicizing their ignorance, and a path that didn't involve sending an employee to jail.

I don't think the guy is a thief. So far, his legal status is in fact NOT a thief. If the law decides to eventually label him as a thief, I think it will be a dangerous precedent and/or reinforcement of a dangerous set of rulings that will give someone who owes me money a legal option for screwing me over with the assistance of lawful violence and coercion at the hands of the state.

angelatc
09-08-2013, 12:26 PM
Once again, what difference does it make if this is "criminal" or "civil"

I had a thought about this while I was washing dishes. The rules of evidence make getting a criminal conviction much harder, and the "reasonable doubt" standard doesn't apply in civil court.

If the justice system would not allow the company to pursue the civil matter if the criminal case failed, this could have been a blessing in disguise for that thief.

angelatc
09-08-2013, 12:36 PM
Thanks for the links, in trying to understand these rules, I wanted to know what the definition of "Settlement Date" was. I came across a rather interesting discussion.

http://www.bankersonline.com/technology/guru2006/gurus_tech070306c.html

NACHA's Settlement Date or Reg E's Statement Date? (Reg E of the Electronic Funds Transfer Act)

While this specific case is different, the question I believe still remains. What is the appropriate rules/laws to apply and more importantly WHEN?

Nacha appears to be the industry "rule book", while EFTA is the legal basis for which those rules are written. In terms of liability, I think that EFTA is the appropriate law to source.

You are right tho, from what I could read in the NACHA rules and from what I gathered in the discussion I linked, the company had 5 days after the funds what "cleared"? to process a reversal.

So obviously if that mistake took more than 5 days after the reversal to be recognized, NACHA was not going to help the company out in reversing and recovering from their mistake.

So now, the question becomes that of the EFTA which states that if the company properly notifies the bank within 60 days of the unauthorized transactions they have ZERO liability.

EFTA also goes on to state that there is liability proportional to the amount of time greater than 60 days to the time of notification. Since this particular transactions is considered an erroneous entry that 60 days is furthered extended to included the amount of time it takes to recognize the error on a regular periodic statements.

I draw your attention to the Comptrollers Handbook, Consumer Compliance Examination, which analyzes Regulation E of the ETFA.

Section V. Consumer Liability and Error Resolution.

http://www.occ.gov/publications/publications-by-type/comptrollers-handbook/efteare.pdf

So still maintain that this case is governed by that law. The NACHA rules would have been helpful if the company was aware of their mistake quickly enough to reverse the transaction, but clearly that is not the case. NACHA has no provisions for actually liability, however the company is still able to 100% indemnify themselves under Federal for a time period between 60 and 90 days after their mistake.

After 90 days, it is quite clear that the law places liability on the company.

So if they didn't discover their error more than 90 days (assuming 30 day mailing cycles for statements) or if they simply failed to notify the bank of the erroneous and unauthorized amount the law makes it clear that they will be liable for the loss of a portion, up to ALL of those funds.

That is because they have to provide documentation and the burden of proof is on the financial institution to show that the transaction was authorized. If the company does not provide any evidence that the transaction was unauthorized, then the financial institution and the EFTA considers that transaction to be valid and authorized.

So I have a couple questions.
1.) If the concern was to recover their alleged stolen property, why did the not go to the bank, since the bank controls those funds for them?
2.) They had 90 days from the time the direct deposit cleared to notify the bank and have 0 ZERO liability for the erroneous transaction.
3.) In fact, even if there was some extenuating circumstances 90 days from Feb 1 is May 1. So even if they went to the bank right now, they could recover a huge chunk of their mistake.
4.) The bank would have provisionally credited their account already had they made this inquiry within 90 days.
5.) There was absolutely no reason to approach the employee or go to the police to recover these misappropriated funds which the company is 100% at fault for misappropriating.


We could go on and on about this. I think you've made some great points and showed me some things that I wouldn't have known about since you are in payroll and have no knowledge of any of that stuff.

I can't really cast any judgement on the guy cause I don't have all the facts. Knowing what I know about banking (worked in the "engine room" for a bank for 4 years), there was a very easy path for a responsible company to correct this error. A path that didn't involve publicizing their ignorance, and a path that didn't involve sending an employee to jail.

I don't think the guy is a thief. So far, his legal status is in fact NOT a thief. .

So far his legal status is an accused thief.


The NACHA won't help collect money, period. They are a legislative body, not an enforcement arm. If the company had tried to reverse the money within the 5 days only to find out that he had already moved it, the company would still be out of luck. They can't chase him from bank to bank. Unless they get a court order to garnish his bank account, he has the money.


1.) If the concern was to recover their alleged stolen property, why did the not go to the bank, since the bank controls those funds for them?
2.) They had 90 days from the time the direct deposit cleared to notify the bank and have 0 ZERO liability for the erroneous transaction.
3.) In fact, even if there was some extenuating circumstances 90 days from Feb 1 is May 1. So even if they went to the bank right now, they could recover a huge chunk of their mistake.
4.) The bank would have provisionally credited their account already had they made this inquiry within 90 days.
5.) There was absolutely no reason to approach the employee or go to the police to recover these misappropriated funds which the company is 100% at fault for misappropriating.




You're confusing consumer rights to challenge a charge or withdraw from your own account with the right of a firm to reverse a direct deposit within 5 days. And even if they did try to reverse the deposit (which they may have) they can't if the money is already gone. Which it was.

There was not an easy way to correct this. There was no easy way to pull the money back out. He already appropriated it from his account.

He wanted nothing more for them to try to chase the money. They put a quick end to that game.

Most of the time, the police investigate these things and tell the complainant that it's a civil matter. They investigated this one and concluded it was a criminal matter.

newbitech
09-08-2013, 12:41 PM
I had a thought about this while I was washing dishes. The rules of evidence make getting a criminal conviction much harder, and the "reasonable doubt" standard doesn't apply in civil court.

If the justice system would not allow the company to pursue the civil matter if the criminal case failed, this could have been a blessing in disguise for that thief.

I think it matters because of the penalties imposed. As far as blessings in disguise, lol, someone puts 50k in your bank account and calls the cops on you and you go to jail. Feel blessed?

I can see the scenario where the guy doesn't go to jail and just sort of gives up his rights to be informed about the mistake in his bank account, one big ass hassle cause by the company screw up.

How about some accountability for the people that actually CAUSED all this to happen in the first place? What kind of crime can we accuse them of? I think they committed wire fraud. I think the overpayment was intentional and was an attempt to find a reason to deprive the man of his liberty. So far its working out for them yeah?

newbitech
09-08-2013, 12:41 PM
So far his legal status is an accused thief.


The NACHA won't help collect money, period. They are a legislative body, not an enforcement arm. If the company had tried to reverse the money within the 5 days only to find out that he had already moved it, the company would still be out of luck. They can't chase him from bank to bank. Unless they get a court order to garnish his bank account, he has the money.





You're confusing consumer rights to challenge a charge or withdraw from your own account with the right of a firm to reverse a direct deposit within 5 days. And even if they did try to reverse the deposit (which they may have) they can't if the money is already gone. Which it was.

There was not an easy way to correct this. There was no easy way to pull the money back out. He already appropriated it from his account.

He wanted nothing more for them to try to chase the money. They put a quick end to that game.

Most of the time, the police investigate these things and tell the complainant that it's a civil matter. They investigated this one and concluded it was a criminal matter.

People make false accusations all the time. Actually, I am not confusing them. I wasn't sure about the ability to reverse the EFT, which is why I asked you about it. I am 100% sure about the ability of the company to go to their bank and file an erroneous transaction claim. I gave a couple examples of that already from my experience.

Yes there was an easy way to correct it. Company realizes they screwed up their bank account. Go to the bank. Done.

Yeah, police are morons half the time with no knowledge of the actual law they are investigating. Forgive me if I have no respect for a police investigation until the facts come out in an actual court room. You know, where we get to hear both sides of the story and hear a proper explanation of the charges and discovery and motions based on the law, etc etc.

You see the quote from the cop in the OP? After all we have discussed, do you really think that explanation of what happened has any relevancy at all?

RickyJ
09-08-2013, 12:45 PM
I had a thought about this while I was washing dishes. The rules of evidence make getting a criminal conviction much harder, and the "reasonable doubt" standard doesn't apply in civil court.

If the justice system would not allow the company to pursue the civil matter if the criminal case failed, this could have been a blessing in disguise for that thief.

Which is exactly why the company was dumb to call the police about this. They should have sued him.

newbitech
09-08-2013, 12:47 PM
Which is exactly why the company was dumb to call the police about this. They should have sued him.

or just gone to the bank and explain their fuck up, like responsible people do.

newbitech
09-08-2013, 01:01 PM
So here are the possible things that the company could have done.

0.) hire competent people
1.) reverse the direct deposit error within 5 business days (what probably should have happened)
2.) Work with the guy in an employee/employer relations and process automatic payroll deductions to recover the funds (what i think would have been best)
3.) file an erroneous transfer claim at their bank (this could have and still can happen at any point)
4.) Harass the guy and hire a strong arm to collect the money gangster style while accusing the guy of stealing (the preferred method for folks who refuse to take personal responsibility for their own screw ups)

I still think they should have worked it out with the guy in lieu of correcting the error at their bank. I still doubt the company has any kind of strong case as long as they continue to procrastinate and push for criminal prosecution in what seems to be a cut and dry civil case.

Any other options anyone can think of? And how would you characterize those options?

angelatc
09-08-2013, 01:19 PM
So here are the possible things that the company could have done.

0.) hire competent people

Making a single, isolated typo is not evidence of incompetence. Although your revision to label this as point zero amuses the hell out of me.



1.) reverse the direct deposit error within 5 business days (what probably should have happened)

We don't know that it didn't. We have no reason to think that the guy waited 5 whole days before he appropriated the cash out to open a new bank account, presumably to keep the employer from withdrawing it.



2.) Work with the guy in an employee/employer relations and process automatic payroll deductions to recover the funds (what i think would have been best)

We have seen zero evidence that the guy wants to give any of the money back. And no possible way is this the best solution because the amount of money is so much. So far the company can probably count on getting at least $10,000 back, because they'll put a lien on the bail money he presented.

We know nothing about this guy, except that he has two prior arrests. He may been there for 10 years, or he may have still been on his 90 day probationary period.

The people who actually do know him didn't seem to think that payroll deduct was their best bet. And since they had to go find the guy to talk to him, it's seems pretty logical to assume perhaps he wasn't even interested in being an employee any more.


3.) file an erroneous transfer claim at their bank (this could have and still can happen at any point)

They can't do that after the 5 days have passed. And I don't know why you won't believe me when I tell you that the money is gone. The thief already pulled the money out. Not only are they legally prohibited from pulling the money back out, there is no money to pull back out.


4.) Harass the guy and hire a strong arm to collect the money gangster style while accusing the guy of stealing (the preferred method for folks who refuse to take personal responsibility for their own screw ups)

There are degrees of responsibility. Obviously their internal controls need some tweaking, but revamping them is the extent of their responsibility. Did you read the NACHA documents? They are pretty clear that making a mistake does not entitle anybody to any less protections. You can write your PIN on your ATM card, and you'll still get the money back if a thief grabs it and uses it. And he'll still get charged with theft.



I still think they should have worked it out with the guy in lieu of correcting the error at their bank. I still doubt the company has any kind of strong case as long as they continue to procrastinate and push for criminal prosecution in what seems to be a cut and dry civil case.

You have no proof that they procrastinated. You have no proof that they are "pushing" for a criminal prosecution. If it was not a criminal case, the police would have advised them to take it to civil court.

Its amazing that with your extensive background in financial services that you still seem to think that the money is in the bank, and that a piece of paper can make it appear back into their account. He took the cash out. And I'm sure you already know that the NACHA agreements spell out that the banks are in no way liable for this.





Any other options anyone can think of? And how would you characterize those options?

Turn it over to Corporate Counsel, let them consult with law enforcement, then consent when they advise arresting the guy for grand theft. I think that's the best option, if for no other reason than it at least got them $10,000 back already.

angelatc
09-08-2013, 01:31 PM
or just gone to the bank and explain their fuck up, like responsible people do.

They don't have to go to the bank. They can reverse a deposit from a PC in their office.

But if they been totally ignorant, and thought they could dispute this using the consumer protection laws, the bank would have said, "Gee! We'd love to help you but the guy already appropriated the money from his account. Good luck finding it! "

angelatc
09-08-2013, 01:35 PM
Which is exactly why the company was dumb to call the police about this. They should have sued him.

If the criminal case falls apart, they can still sue him.

newbitech
09-08-2013, 03:08 PM
Making a single, isolated typo is not evidence of incompetence. Although your revision to label this as point zero amuses the hell out of me.




We don't know that it didn't. We have no reason to think that the guy waited 5 whole days before he appropriated the cash out to open a new bank account, presumably to keep the employer from withdrawing it.




We have seen zero evidence that the guy wants to give any of the money back. And no possible way is this the best solution because the amount of money is so much. So far the company can probably count on getting at least $10,000 back, because they'll put a lien on the bail money he presented.

We know nothing about this guy, except that he has two prior arrests. He may been there for 10 years, or he may have still been on his 90 day probationary period.

The people who actually do know him didn't seem to think that payroll deduct was their best bet. And since they had to go find the guy to talk to him, it's seems pretty logical to assume perhaps he wasn't even interested in being an employee any more.



They can't do that after the 5 days have passed. And I don't know why you won't believe me when I tell you that the money is gone. The thief already pulled the money out. Not only are they legally prohibited from pulling the money back out, there is no money to pull back out.


There are degrees of responsibility. Obviously their internal controls need some tweaking, but revamping them is the extent of their responsibility. Did you read the NACHA documents? They are pretty clear that making a mistake does not entitle anybody to any less protections. You can write your PIN on your ATM card, and you'll still get the money back if a thief grabs it and uses it. And he'll still get charged with theft.



You have no proof that they procrastinated. You have no proof that they are "pushing" for a criminal prosecution. If it was not a criminal case, the police would have advised them to take it to civil court.

Its amazing that with your extensive background in financial services that you still seem to think that the money is in the bank, and that a piece of paper can make it appear back into their account. He took the cash out. And I'm sure you already know that the NACHA agreements spell out that the banks are in no way liable for this.



Turn it over to Corporate Counsel, let them consult with law enforcement, then consent when they advise arresting the guy for grand theft. I think that's the best option, if for no other reason than it at least got them $10,000 back already.

NACHA is 5 days to reverse the EFT with the clearing house.
EFTA is no time limit to file an erroneous transaction claim with their financial institute, with the only stipulation being after 60-90 days the claimant begins to assume liability for a portion of the loss up to 100% (if they just wait too long, not sure how that is determined).

So lets make a quick entity relationship diagram.

http://farm4.staticflickr.com/3722/9705211274_959559dd9d_o.jpg

1.) The Federal and State Labor laws consider overpayments to be an advance on wages.

2.) NACHA has no jurisdiction over liability. Reversal of an erroneous ETF is supported by the AUTOMATED system up to 5 business days after the EFT Settlement.

3.) FDIC/EFTA Regulation E has jurisdiction and liability provisions for erroneous transactions. Reversal of an erroneous EFT is supported in this regulation up to 90 after the EFT Settlement with NO LIABILITY. After 90 days, liability appears to be proportional to the amount of time between 30 days after the regular periodic statement was received and the time it takes for the account holder to notify their bank of an EFTA Regulation E erroneous transaction.

It doesn't matter that the account holder is a company that uses the account for the purpose of payroll. In that case the company is a CONSUMER of financial services from their financial institute. The same exact laws apply for a company using the account for payroll as it does for an individual purchasing adult toys from a sketchy adult website. There is no stipulation regarding the AMOUNT of the transaction other than what is covered by FDIC. Each have 90 days after their last regular bank statement to make a ZERO liability claim of an unauthorized transaction.

The Financial institute is obligate under the law to PROVE that the transactions were authorized AND for the CORRECT AMOUNTS. In the case of an erroneous transaction with evidence supporting that there was in fact an error, the financial institution in compliance with EFTA Regulation E must PROVISIONALLY credit the account within 10 days of the initial claim, and subsequently has 45 days to notify the consumer of their findings. Should the error be confirmed making the transaction unauthorized, the financial institute then has 10 days to credit the entire balance of the transaction back to the consumer's account.

At this point, this means the entire funding process in the chain of banks government by FDIC is REVERSED. So the guys account where the error transaction landed will be debited whatever the error amount was deemed.

At that point, the company could wash their hands of guy and move on. Then, the guy's bank would begin the fraud investigation or whatever to determine if he stole the money from the bank, or if he also simply made a mistake and now owes the bank the balance. He could refuse to pay all day long and not be a criminal, just like people refuse to pay their loans all day long and don't go to jail. They file a civil claim lien his property and get a judgement to garnish his wages.

All that being said, do people scam the system and look for loopholes to rip people off? Yeah, and that is called fraud and should be punished criminally.

That ain't what happened here.