Victim Ordered To Pay Thief.

[JAMESBJOHNSON]

http://www.foxnews.com/story/0,2933,425962,00.html

 

[Safe_Bet]

http://www.foxnews.com/story/0,2933,425962,00.html

That is FUCKED UP!

 

[JAMESBJOHNSON]

Whats odd about it is, generally speaking, criminal issues prevail over civil issues. That is, the guys conviction order requires reparations, so he files bankruptcy. Bankruptcy isnt usually a defense against a criminal conviction order. Like, if you dont pay fines and probation costs its a violation of probation.

I've seen this sort of thing happen in court where the judge is an idiot. Like, one time a defendant used conspiracy to defraud the government as a defense against a felony charge of child abandonment. The judge bought the defense and let the guy go. The guy's argument was this: Mom collected AFDC and welfare benefits, including housing assistance. So his support of the child was in cash, under the table. Mom denied getting a dime from him.

 

[gauchecritic]

Why do you keep doing this? I mean Faux News for fuck's sake.

How about another title for the thread. "Businessman Ordered to Forfeit on Bankruptcy Protection."

This is his lawyer's fault for not having all the facts.

 

[Pure]

the case, while unfair, is not simple, nor is a correctly drafted law, easy to come up with. fox news is not trying for fairness here, but rather beating the drum of "man punches burglar and is charged with assault": criminals run rampant, and the law is on their side. in fact the US incarcerates more than any other advanced western nation.

 

[Safe_Bet]

Why do you keep doing this? I mean Faux News for fuck's sake.

How about another title for the thread. "Businessman Ordered to Forfeit on Bankruptcy Protection."

This is his lawyer's fault for not having all the facts.

I know how much you love to hate Fox News, but that was an Associated Press Wire story.

 

[gauchecritic]

I know how much you love to hate Fox News, but that was an Associated Press Wire story.

But I doubt if the headline was. (which was my point)

 

[JAMESBJOHNSON]

GAUCHE

I learned long ago that youre an asshat and nothing pleases you.

 

[gauchecritic]

GAUCHE

I learned long ago that youre an asshat and nothing pleases you.

That did

 

[colddiesel]

If you look at the whole case the final decision is as reasonable a compromise as could be achieved in the circumstances. Ask yourselves, why should the other creditors subsidise this one businessman? Bankruptcy is by definition not fair to creditors.

Finally an unrelated question what sort of small businessman would hire a builder from way out of his state and pay him in full before the work even started? Very peculiar way of doing business.

 

[JAMESBJOHNSON]

COLD DIESEL

The distinction is a criminal conviction order. If youre convicted of a crime and the court orders you to make restitution and make fines the transactions arent commerce. If I file bankruptcy and cant pay my property/income taxes, the government will confiscate and sell my house.

One variety of court cannot negate what another variety of court orders.

 

[Boxlicker101]

the case, while unfair, is not simple, nor is a correctly drafted law, easy to come up with. fox news is not trying for fairness here, but rather beating the drum of "man punches burglar and is charged with assault": criminals run rampant, and the law is on their side. in fact the US incarcerates more than any other advanced western nation.

I read this thread earlier but did not add a post. When I came back and saw your name here, I was sure you would take the side of the swindler. It's gratifying to see that I was right.

I believe it is more simple than you might think. It appears that Koch swindled the other guy, agreeing to do some work for him, accepting money and then doing nothing. This would be a criminal offense. I may be wrong, and I don't know all that much about bankruptcy laws, especially in Illinois, but it would seem to me that repaying money you stole should take preference over indebtedness that you default on.

Of course, the courts and the law and the politicians are so crooked in Ilinois that almost anything could happen. Maybe Koch s the brother-in-law of the judge, or something.

The US incarcerates so many because of the stupid and failed War on Drugs. They let most other criminals off. That may be the reason why Kock is walking the streets now.

ETA: BTW, Gauche: The headline was pretty accurate, except maybe they should have called the guy a swindler instead of a thief. It's a rather trivial point.

 

[colddiesel]

COLD DIESEL

The distinction is a criminal conviction order. If youre convicted of a crime and the court orders you to make restitution and make fines the transactions arent commerce. If I file bankruptcy and cant pay my property/income taxes, the government will confiscate and sell my house.

One variety of court cannot negate what another variety of court orders.

I'm aware of that but I wasn't drawing fine legal distinctions. I suspect the judge knew the law too but he also knew what he could get away with. My guess is the judge decided what was best for most people and having decided that he cme to a verdict whilst legally dodgy was unlikely to be challenged because of the cost.

Judges bend the rules regularly.

 

[JAMESBJOHNSON]

COLD-DIESEL

Over the years I've been involved in 1000s of trials. In some of them judges violate the law and do weird things. But, generally speaking, if a traffic court convicts you of speeding, a family court cant change the conviction order; nor can a traffic judge change a custody order or nullify a probate order. Changes, if any, get made by the original judge and court.

So when a criminal court judge orders someone to pay a fine, make restitution, and pay for probation, a civil court judge has no legal standing to set the conviction order aside.

I recall a judge who called me and demanded that I fax her my client's mental health records. I told her "NO," and reminded her that the law requires either a consent from the client or a court order. The judge went apeshit on me, but I refused to fax the records. On another occasion the same judge ordered me to be an officer of the court, demanding that I get Federal records from a school. I told I couldnt do it, that the law required her to subpeona the records using an officer or agent of the county sheriff to serve the subpeona. She got pissed, but I was right. I reminded her, too, that the school wasnt obligated to give her federal records. And they refused.

 

[colddiesel]

COLD-DIESEL

.

So when a criminal court judge orders someone to pay a fine, make restitution, and pay for probation, a civil court judge has no legal standing to set the conviction order aside.

.

I'm not disagreeing but the fact remains that the judge did make an abberant decision and seems to have got away with it.

 

[JAMESBJOHNSON]

Then we're in agreement.

 

[Pure]

questions

So when a criminal court judge orders someone to pay a fine, make restitution, and pay for probation, a civil court judge has no legal standing to set the conviction order aside.

yes, of course. the criminal matter takes priority.

BUT in this case the bankruptcy filing was BEFORE the criminal matter.
the protections were thus in place BEFORE the criminal matter (judgment in Poveromo's favor and ordering restitution).

IOW, the appearance, at least, is that Poveromo, in launching the criminal case [in another state], was trying to circumvent the bankruptcy situation.

IIRC, at least here, you have to CHOOSE. you can sue for money, civilly, or you can try for a prosecution. you can't play one against the other. you can, of course, sue after a criminal matter since in MANY cases judges do not order restitution.

what you can't do, however, is launch a civil suit, *and back it up* so to say, with launch of a criminal line of attack. that's a kind of blackmail, esp. if you say so "pay up, or i'll have you put in jail."

so the principle here is not "thief gets off, man has give up money received in restitution" but "man cannot go after thief criminally [AS FAR AS SEEKING RESTITUTION], where a bankruptcy is in place."

indeed, any kind of prosecution has an air of vengefulness: "you've declared bankruptcy, but i'll see that you go to jail." while the motive of a complainant needn't be pure, revenge does undermine credibility.

as i analyze it, Poveromo, and certainly the criminal judge should have recognized this. the oddity, as one analyst quoted, says, is that the civil judge came down so hard on Poveromo, rather than the other judge who ordered the restitution. i can see the reasoning however behind the civil judge's decision that Poveromo must forfeit the restitution monies.

 

[JAMESBJOHNSON]

PURE

It doesnt matter. If the thief was convicted, a conviction order exists. No one gets a pass for criminal conduct if they file bankruptcy first.

You see, the criminal court doesnt give a fuck about your financial status vis-a-vis criminal penalties. If you file bankruptcy then get a speeding ticket, you gotta pay the ticket. If your car tag expires, you gotta pay the fee.

Bankruptcy is not a GET OUT OF JAIL card.

 

[Pure]

It doesnt matter. If the thief was convicted, a conviction order exists. No one gets a pass for criminal conduct if they file bankruptcy first.

true enough, jbj. poveromo could have merely launched a criminal action. then if Koch were convicted, he'd rightly go to jail

the problem is in thet Poveromo was additionally seeking restitution. MONEY. i'm not sure, but i doubt the second judge, the criminial one, would have ordered restitution if he'd known a bankruptcy was in place.

around here, criminal proceedings do NOT usually result in restituion orders. it's not really a central part of the criminal justice system to see that there is 'repayment' to a victim, of his money, e.g. in a robbery. one reason is that thieves and robbers and even embezzlers don't leave the stolen money in sacks in the basement. they spend it.

 

[Zeb_Carter]

It doesnt matter. If the thief was convicted, a conviction order exists. No one gets a pass for criminal conduct if they file bankruptcy first.

true enough, jbj. poveromo could have merely launched a criminal action.

the problem is in his additionally seeking restitution. MONEY. i'm not sure, but i doubt the second judge, the criminial one, would have ordered restitution if he'd known a bankruptcy was in place.

around here, criminal proceedings do NOT usually result in restituion orders. it's not really a central part of the criminal justice system to see that there is 'repayment' to a victim, of his money, e.g. in a robbery.

Not really true...Bankruptcy only deals with past debit, not future debit. Just because you filed and were granted bankruptcy does not relieve you of all future debits, no matter how they are incurred.

 

[Pure]

posting from a legal forum

http://jonathanturley.org/2008/09/2...costs-to-thief-who-stole-his-money/#more-4094

David W. 1, September 23, 2008 at 2:47 am

This case is almost impossible to distinguish on its relevant facts from Thompson v. Hewitt, 311 B.R. 415 (E.D. Pa. 2004).
In that case, the debtor was hired to build a house and failed to finish the job after being paid over $55,000. The debtor then filed Chapter 7 bankruptcy and the creditor received notice, but did not file any objections in that case.

Thereafter, the victim (creditor) pressed criminal charges against the debtor and got an order of restitution. Even though the state collected the money solely for distribution to the victim in compensation for his loss, the bankruptcy courts rejected the very same argument made in the story above, stating:

“The Bankruptcy Court noted that Creditor is not the party prosecuting the Criminal Prosecution, nor did Creditor violate the automatic stay of Section 362(a) by participating in any proceedings in the Criminal Prosecution to enforce the Restitution Order.

The Bankruptcy Court further wrote in its August 13, 2002 Memorandum and Order denying the Debtor’s motion seeking a preliminary injunction in this adversary proceeding, Bankruptcy Code § 362(b)(1) expressly excepts the continuation of the state court criminal proceeding from the reach of the automatic stay-even if the criminal proceeding’s purpose is to collect a debt or enforce payment of a criminal restitution obligation.”

But as the case of In Re Bibbs, 282 B.R. 876 (E.D. Ark. 2002)
points out, the courts are split on this issue. Some say the automatic stay does apply to criminal prosecutions, others say it doesn’t.
A little background on Judge Rendlen III may provide some insight as to why he’s so sympathetic to people in bankruptcy. See the article at this link: http://findarticles.com/p/articles/mi_qn4181/is_/ai_n16495388

When he was in private practice in Missouri during the farming crisis of the late 80s, his firm used to accept payment from clients in the form of jams & jellies because they were more concerned with helping people than getting paid.

Wow.

 

[Boxlicker101]

http://jonathanturley.org/2008/09/2...costs-to-thief-who-stole-his-money/#more-4094

David W. 1, September 23, 2008 at 2:47 am

This case is almost impossible to distinguish on its relevant facts from Thompson v. Hewitt, 311 B.R. 415 (E.D. Pa. 2004).
In that case, the debtor was hired to build a house and failed to finish the job after being paid over $55,000. The debtor then filed Chapter 7 bankruptcy and the creditor received notice, but did not file any objections in that case.

Thereafter, the victim (creditor) pressed criminal charges against the debtor and got an order of restitution. Even though the state collected the money solely for distribution to the victim in compensation for his loss, the bankruptcy courts rejected the very same argument made in the story above, stating:

“The Bankruptcy Court noted that Creditor is not the party prosecuting the Criminal Prosecution, nor did Creditor violate the automatic stay of Section 362(a) by participating in any proceedings in the Criminal Prosecution to enforce the Restitution Order.

The Bankruptcy Court further wrote in its August 13, 2002 Memorandum and Order denying the Debtor’s motion seeking a preliminary injunction in this adversary proceeding, Bankruptcy Code § 362(b)(1) expressly excepts the continuation of the state court criminal proceeding from the reach of the automatic stay-even if the criminal proceeding’s purpose is to collect a debt or enforce payment of a criminal restitution obligation.”

But as the case of In Re Bibbs, 282 B.R. 876 (E.D. Ark. 2002)
points out, the courts are split on this issue. Some say the automatic stay does apply to criminal prosecutions, others say it doesn’t.
A little background on Judge Rendlen III may provide some insight as to why he’s so sympathetic to people in bankruptcy. See the article at this link: http://findarticles.com/p/articles/mi_qn4181/is_/ai_n16495388

When he was in private practice in Missouri during the farming crisis of the late 80s, his firm used to accept payment from clients in the form of jams & jellies because they were more concerned with helping people than getting paid.

Wow.

In the case you are describing, the builder apparently made a good faith effort to do what they had been hired to do. The fact that they defaulted on a contract makes it a civil case. In the subject of this thread, the builder apparently had no intention of doing any work, and just pocketed the money. That is fraud, a criminal offense.

As for the court ordered restitution, I suspect that was a part of some kind of probation sentence. Something like: You cheated this guy. Now, pay him back or you are going to prison for a long time. Since the swindler is not now going to make restitution, perhaps he will end up doing the time he otherwise would have done. That would be only fair. It is certainly not right to reward bad behavior.