Made small personal loan on dirt bike no title, recorded on ucc1 he disposed of it whats my options legally
1 Answer | Asked in Collections Law for Georgia on Oct 14, 2013.
He has filed Chapter 7 bankruptcy and I want to know my criminal options if any.
Answered On Nov 1, 2013
Was the debt included in the bankruptcy? This was not posted as a criminal law question and I am not a criminal law attorney. It is a crime to conceal or dispose of property that is secured by a security interest. You indicate that you filed a UCC. Where was the title, if the bike had a title? Why did you not take possession of the title and record a lien thereon? If there was no title because these things don't have titles, did you have a security agreement? I am concerned that you were not a real secured creditor. If you did not have a valid security interest then you did not have much. I don't think just filing a UCC 1 will be enough but you should confirm that. If there is enough to show that you were a secured creditor, then see § 16-8-4. Theft by conversion, which is below. You do not indicate any sort of a timeline here. When was the collateral disposed of and the bankruptcy filed? Is the bankruptcy still pending? You need to probably get a bankruptcy lawyer and object to the discharge of your loan. Secured parties can usually take back their collateral but in your case you can't as he disposed of the bike. Depending on the circumstances, that may be a fraud which would make the bankruptcy court dismiss the case. 16-8-4. Theft by conversion (a) A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. This Code section applies whether the application or disposition is to be made from the funds or property of another or from the accused's own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own. (b) When, under subsection (a) of this Code section, an officer or employee of a government or of a financial institution fails to pay on an account, upon lawful demand, from the funds or property of another held by him, he is presumed to have intended to convert the funds or property to his own use. (c)(1) As used in this subsection, the term "personal property" means personal property having a replacement cost value greater than $100.00, excluding any late fees and penalties, and includes heavy equipment as defined in paragraph (2) of Code Section 10-1-731 and tractors and farm equipment primarily designed for use in agriculture. (2) Any person having any personal property in such person's possession or under such person's control by virtue of a lease or rental agreement who fails to return the personal property within five days, Saturdays, Sundays, and holidays excluded, after a letter demanding return of the personal property has been mailed to such person by certified or registered mail or statutory overnight delivery, return receipt requested, at such person's last known address by the owner of the personal property or by the owner's agent shall be presumed to have knowingly converted such personal property to such person's own use in violation of such lease or agreement. (3) In the event that any personal property is not returned as provided for in the lease or rental agreement and the court orders the lessor or renter to pay replacement costs, replacement costs shall include but not be limited to: (A) The market value of the personal property. The market value shall be established by the owner of the property by providing from a supplier of such or reasonably similar personal property a current quotation of the value of the personal property which is of like quality, make, and model of the personal property being replaced. The value to be awarded shall be the higher of: (i) The value on the date when the conversion occurred; or (ii) The value on the date of the trial; (B) All rental charges from the date the rental agreement was executed until the date of the trial or the date that the property was recovered, if recovered; and (C) Interest on the unpaid balance each month at the current legal rate from the date the court orders the lessor or renter to pay replacement costs until the date the judgment is satisfied in full. (4) If as a part of the order of the court the lessor or renter is placed on probation, supervision of said probation shall not be terminated until all replacement costs, fees, charges, penalties, interest, and other charges are paid in full. All payments relative to this Code section shall be made to the appropriate court of jurisdiction and the court shall make distribution to the owner within 30 days of receipt thereof. (5) In the event that the owner incurs any expenses in the process of locating a lessor or renter who did not return any personal property according to the lease or rental agreement, the court shall provide that the lessor or renter reimburse the owner for those expenses which may include, but not be limited to, credit reports, private detective fees, investigation fees, fees charged by a law enforcement agency for such services as police reports, background checks, fees involved with swearing out a warrant for incarceration, and any other bona fide expenses.