What can I do to have a contractor return my overpayment for work done?
Full Question:
I issued a check to some one and realized it would not be honored by my Bank. I immediately contacted the person and sent them a replacement check drawn from another bank. This individual cashed both checks because the first bank transferred funds from my credit card to cover the check. The individual now refuses to pay my money back. This was a contractor who was working on my home. Can this individual be charged with Theft by Deception
The amount of the check is $5500.00.
03/17/2009 |
Category: Debts and Cr... ยป Bad Checks |
State: North Carolina |
#15671
Answer:
The answer will be a matter of subjective determination for the court based on all the facts and circumstances involved. For example, if the contractor made a statement that the first check would be destroyed, there may be a finding of false pretenses. Criminal charges are based on criminal intent. To find a person guilty, the defendant must have had a wrongful intent. If a person accepts wrongful payment based on an innocent mistake, such as if the contractor cashed the second check without knowing the first one would clear, it may be a civil matter of seeking restitution for contract payments the person wasn't entitled to.
The following is a NC statute:
§ 14-100. Obtaining property by false pretenses.
(a) If any person shall knowingly and designedly by means of any kind
of false pretense whatsoever, whether the false pretense is of a past or
subsisting fact or of a future fulfillment or event, obtain or attempt to
obtain from any person within this State any money, goods, property,
services, chose in action, or other thing of value with intent to cheat
or defraud any person of such money, goods, property, services, chose in
action or other thing of value, such person shall be guilty of a felony:
Provided, that if, on the trial of anyone indicted for such crime, it
shall be proved that he obtained the property in such manner as to amount
to larceny or embezzlement, the jury shall have submitted to them such
other felony proved; and no person tried for such felony shall be liable
to be afterwards prosecuted for larceny or embezzlement upon the same
facts: Provided, further, that it shall be sufficient in any indictment
for obtaining or attempting to obtain any such money, goods, property,
services, chose in action, or other thing of value by false pretenses to
allege that the party accused did the act with intent to defraud, without
alleging an intent to defraud any particular person, and without alleging
any ownership of the money, goods, property, services, chose in action or
other thing of value; and upon the trial of any such indictment, it shall
not be necessary to prove either an intent to defraud any particular
person or that the person to whom the false pretense was made was the
person defrauded, but it shall be sufficient to allege and prove that the
party accused made the false pretense charged with an intent to defraud.
If the value of the money, goods, property, services, chose in action, or
other thing of value is one hundred thousand dollars ($100,000) or more,
a violation of this section is a Class C felony. If the value of the
money, goods, property, services, chose in action, or other thing of
value is less than one hundred thousand dollars ($100,000), a violation
of this section is a Class H felony.
(b) Evidence of nonfulfillment of a contract obligation standing alone
shall not establish the essential element of intent to defraud.
(c) For purposes of this section, "person" means person, association,
consortium, corporation, body politic, partnership, or other group,
entity, or organization.
