[progunr]

I'll apologize right now for the length of this post. If you don't have much time, you may want to move on to a shorter subject as this one requires some detail in my effort to find any possible suggestions or solutions to this issue. I will thank anyone in advance for taking the time to try to help me with it. OK, here goes.

I work as a Collections Specialist III for several different businesses and have run into some issues regarding a valid state statute, and the refusal of the County Attorney's Office to prosecute the cases I am submitting.

One of my contracts is with a Rental Purchase Dealer (better known as Rent To Own).

In 2005, after a number of the renters for one particular store were obtaining the merchandise, and never being seen or heard from after the rented property had been delivered, I did some research into the State Statutes regarding Theft, and rental property.

I found a statute that specifically addressed the issue I was facing. Here is the wording exactly as it appears in the statute:

Theft by Unlawful Taking or Disposition:

(3) Except as provided in subsection (4) of this section, it shall be presumed that a lessee's failure to return leased or rented movable property to the lessor after the expiration of a written lease or written rental agreement is done with intent to deprive if such lessee has been mailed notice by certified mail that such lease or rental agreement has expired and he or she has failed within ten days after such notice to return such property.

Subsection (4) addresses the rental of a motor vehicle and has no bearing to my cases.

I immediately mailed 4 certified notices to 4 of these customers. After the ten days expired, I called to report the crime to the police department. I was told that this was a civil matter, and that they would not take a report, period.

After numerous messages, and being transferred from one supervisor to another, over a two week period, I finally asked the officer to please provide me with the name, and contact information for the person responsible for refusing to take my report.

Suddenly, my reports were taken, without question. I thought my problem was solved.

Then, it came time for the investigating officer to present the cases to the County Attorney. When he did, the County Attorney refused to accept the cases. When I spoke to the representitive at the CA office, the answer I received was, and I will paraphrase from over 3 years ago, "our office decided over 20 years ago, that we were not going to accept any of these type cases from a Rent to Own business".

I asked if this person was actually there 20 years ago, of course he was not. I then said OK, I'm requesting that these cases be prosecuted, under the valid state statute, or I need to know who the person is that is refusing to do so.

Suddenly, my cases began to be prosecuted. Everything went as it should, up to now.

A new employee of the County Attorney's Office, refused to accept two cases from the Police Officer and told the officer to have me call with any questions. I phoned and spoke to her, she said she needed to discuss my cases with her supervisor to determine what they were going to do about them, and she would call me back by the end of the day.

Six phone calls, and two weeks later, I got in touch with her and here is what I was told.
"I still have not had the chance to speak to my supervisor, but, I am the one who has refused your cases, because in my personal opinion, you have other options to resolve these issues, and I'm not going to accept them anymore, you are welcome to speak to the County Attorney if you wish". I said, OK, will you please put him on the phone? She said "no, you must call back". I said but the number I call, is the phone you answer? "Yes it is she replied, but you will have to call back, I'm not going to get him on the phone".

I called back, of course he was unavailable and a message was taken for him to return my call. Since then, I have written two letters, and left over 9 phone messages without a single return call or message.

I issued a complaint with the State Attorney General over a week ago, mailed notes of all the conversations, copies of the letters written, and sent them off. After 9 days now, still not even an email or message that my complaint has even been received.

Keeping in mind that the County Attorney has accepted, issued warrants, customers have been arrested, property has been recovered or restitution has been ordered as part of the sentence or punishment, and well over 25 individuals now have criminal records having been successfully prosecuted under this statute over the past two years.

Am I wrong in expecting them to continue to prosecute as they have been for the last two years?

Am I wrong in the statement that it is the job of the County Attorney to enforce the laws without regard to opinion?

Would I have some recourse against this new employee who has taken full responsibility for turning my cases away?

Who, other than the State Attorney General could I plead my case to as I believe they do not have any legal right to refuse to enforce a valid state statute, especially after doing so for a two year period, with no legal reason for doing so, only based upon her opinion?

I know that they are ignoring me in hopes that I will give up, and just go away, but I refuse to do so. It is my tax dollars that help pay these people to do their jobs, and uphold the laws that exist.

Any opinions, or advice would be greatly appreciated on this matter.

[Fr_Chuck]

It is the county DA ability to decide what cases he will or will not take to court. You can not "make" him take a case if he does not want to. These are elected positions and you can try and make a public outcry, get newspapers or TV invovled. You can try and support a new DA at the next election time.

There are 1000's of laws that are ignored every day. Police officers do not stop every speeder, they do not stop every ran stop light.
If they catch a shop lifter at times they have them work out something with the store.

While the State attorney can discuss this with the county DA in most cases they can not force a case to be heard if there is not a conflict of interest in not hearing the case.

[progunr]

It is the county DA ability to decide what cases he will or will not take to court. You can not "make" him take a case if he does not want to. These are elected positions and you can try and make a public outcry, get newspapers or TV invovled. You can try and support a new DA at the next election time.

There are 1000's of laws that are ignored every day. Police officers do not stop every speeder, they do not stop every ran stop light.
If they catch a shop lifter at times they have them work out something with the store.

While the State attorney can discuss this with the county DA in most cases they can not force a case to be heard if there is not a conflict of interest in not hearing the case.

OK. What about the 25 people, who committed the same crime, now have Felony Convictions for doing so? And now, the ones who are committing the same crime, are just allowed to get away with it?

I can't believe that it would be legal for them to pick, what about discrimination?

Don't they have a DUTY to uphold the law as it is written. If they disagree with a specific State Statute, in order to just ignore it, wouldn't it have to be changed or amended?

[excon]

Hello prog:

I don't think you'll get any help when you take the "complaint" route. I don't know if the State Attorney General has the authority to force the county attorney to act. I'll bet not.

If he's appointed, the guy who appointed him IS his boss. If he's elected, the constituency is his boss. But, he DOES have a boss.

He also has to obey the law. I think the only entity that can force him to is the courts. That's where I'd take my case. And, that's where my expertise ends. You're either going to need an attorney (obviously the BEST route), or you're going to need to spend some time researching.

I believe there's a motion you can file to produce a writ of mandamus. Now, I'm remembering from a long time ago, but I think that's it. It's a writ that forces a bureaucrat to DO his job. I know it's a lot more complicated than that, but there IS such a writ, and the courts are where to get it.

excon

[excon]

Hello again, prog:

Well, I looked it up. I think I was right. Here's what I found:

"MANDAMUS - The name of a writ, the principal word of which when the proceedings were in Latin, was mandamus, we command.

It is a command issuing in the name of the sovereign authority from a superior court having jurisdiction, and is directed to some person, corporation, or, inferior court, within the jurisdiction of such superior court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the superior court has previously determined, or at least supposes to be consonant to right and justice.

Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ.

This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one. Mandamus will not lie where the law has given another specific remedy.

The 13th section of the act of congress of Sept. 24, 1789, gives the Supreme Court power to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed or persons holding office, under the authority of the United States. The issuing of a mandamus to courts, is the exercise of an appellate jurisdiction, and, therefore constitutionally vested in the supreme court; but a mandamus directed to a public officer, belongs to original jurisdiction, and by the constitution, the exercise of original jurisdiction by the supreme court is restricted to certain specified cases, which do not comprehend a mandamus. The latter clause of the above section, authorizing this writ to be issued by the supreme court to persons holding office under the authority of the United States, is, therefore, not warranted by the constitution and void.

The circuit courts of the United States may also issue writs of mandamus, but their power in this particular is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction."

Hope this helps.

excon

[Fr_Chuck]

But as for as unfair, in the US, some things are more seroius crimes in the US, you will get different punishments if you are wealthy or poor, and also race has a factor still today.

And in states where they have the same laws, yes, various places will not investigate some crimes and some counties will. What we see is that yes county sheriffs do not press as hard on some things, and often, very often county DA will have their own agendas.

[excon]

Hello again, prog:

I got a little more...

Do a little research into the law you want prosecuted. You can find out when it was passed, which state legislator sponsored it, who voted for it, and most importantly, you can find out why they found a need to make such a law.

Certainly, THOSE lawmakers wouldn't be happy that a sitting county attorney is IGNORING them. THEY might be able to assist you in your quest.

Look, I'm not thrilled that you're a collector. But I hate county attorney's even more.

excon

[progunr]

Hello again, prog:

Look, I'm not thrilled that you're a collector. But I hate county attorney's even more.

excon

Good advice, gladly accepted.

Oh yeah, most days, I'm not thrilled I'm a collector either, but it pays the bills pretty well,
Thus keeping the other collectors away from me!

Thanks again.

[JudyKayTee]

[QUOTE=progunr]I'll apologize right now for the length of this post. If you don't have much time, you may want to move on to a shorter subject as this one requires some detail in my effort to find any possible suggestions or solutions to this issue. I will thank anyone in advance for taking the time to try to help me with it. OK, here goes.

I work as a Collections Specialist III for several different businesses and have run into some issues regarding a valid state statute, and the refusal of the County Attorney's Office to prosecute the cases I am submitting.

One of my contracts is with a Rental Purchase Dealer (better known as Rent To Own).


Nothing to do with the law but small world - I did collections for a rent to purchase dealer as a part-time employee, some years ago. They were secretitive beyond secretive about their collection practices at that time. Still serve papers for them on occasion through my business, not as an employee.

Didn't know they were "outsourcing."

[progunr]

Didn't know they were "outsourcing."

Most of my work now days is in skip tracing and recovery for several sub-prime auto dealerships in the area.

I worked for the RTO company for 10 years 1988 to 1998 and developed a good friendship with the owner.

Even after my employment ended, we kept in touch, especially when the NCAA Mens BB tournament runs, and the College Football Bowl season hits, he runs a great pool every year.

He contacted me 3 years ago for help with these one payment wonders, that is how I got involved with his cases.

It is so frustrating to have battled so hard in 2005, getting things to work the way they are supposed to, and now, it's like starting all over again.

The arrogance from the County Attorney's office is disgraceful, and I believe Illegal. I do not agree with the opinion that they have the right to pick which laws to enforce without any legal basis for refusing to enforce them.

It is a small world indeed,
Enjoy your weekend.

[Fr_Chuck]

Bad checks is another good example, many courts will not charge people unless the checks are over a certain dollar level, any bad check is illegal, but courts say they don't have the resourses to do all checks under certain amounts ( not all areas but some I know of)

I say it all the time, people get arrested and because of who they were, charges were often droped, people off certain sports teams,

Then you look at homeless, they are often arrested for minor crimes, stay in jail a week or so till they get a second hearing, and the judge dismisses their cases because the jails for full but they are never tried.


The examples of DA making choices of what to press charges on is everywhere

[twinkiedooter]

Having arrested everyone and successfully getting them felony status is not the end of the world. Why doesn't the RTO company just sue them civilly and get judgments against them instead? The DA's office is inundated with more serious crimes other than theft of property from a rental company. I can see their point in not wanting to be an unpaid attorney's office processing the RTO's cases for them. Yes, they are public tax payers employees, but not attorneys to be used by a RTO company as a collection attorney. That's what collection attorneys do for a living. The DA's office is dealing with hundreds of criminals doing much more serious crimes such as rape, murder, car theft, domestic violence, drug dealers, etc. Yes, I am aware that the monetary value of the goods is in the felony theft range, but there are more ways to ruin a person other than give them a felony conviction. You could have made sure that their credit rating is ruined. That would hurt more in the long run.

Sorry I don't see eye to eye with you on this one, but I feel that a private collections attorney should be handling these cases civilly in debtor's court - not a criminal proceeding. That's just my opinion on this matter as the criminal judges and criminal courts are too backed up with criminal cases that cannot be tried as civil cases.

[progunr]

Having arrested everyone and successfully getting them felony status is not the end of the world. Why doesn't the RTO company just sue them civilly and get judgments against them instead? The DA's office is inundated with more serious crimes other than theft of property from a rental company. I can see their point in not wanting to be an unpaid attorney's office processing the RTO's cases for them. Yes, they are public tax payers employees, but not attorneys to be used by a RTO company as a collection attorney. That's what collection attorneys do for a living. The DA's office is dealing with hundreds of criminals doing much more serious crimes such as rape, murder, car theft, domestic violence, drug dealers, etc. Yes, I am aware that the monetary value of the goods is in the felony theft range, but there are more ways to ruin a person other than give them a felony conviction. You could have made sure that their credit rating is ruined. That would hurt more in the long run.

Sorry I don't see eye to eye with you on this one, but I feel that a private collections attorney should be handling these cases civilly in debtor's court - not a criminal proceeding. That's just my opinion on this matter as the criminal judges and criminal courts are too backed up with criminal cases that cannot be tried as civil cases.

Your suggestions sound good in theroy, however, in reality, the RTO customer has no regard for the status of their credit. If they didn't have serious credit issues already, they would not be using RTO as an option to obtain goods. Add to that, the majority have low, entry level positions that change very often. The moment the employer gets notice of the garnishment, the debtor just quits and once again, we have no option to collect the debt, and they continue to enjoy the benefit of the property they have stolen.

I don't file on customers who have paid enough to cover the cash value of the property they rented. Even though, the cash value represents only half of the total due on the full term of the agreement.

The people I am filing on, have rented say, a new laptop computer. The computer cost the business $599.00, the customer pays the first weeks rent, about $35.00. The first renewal payment comes due. No payment is received.

The collector has called twice a day for 14 days, left phone messages at home and work. They have driven to the customers home, and left at least three written notices of the expired rental agreement. In two weeks time, not a single return call as a result of all these efforts. The customer has decided that they will just keep our property and not pay anything further.

Do you think that this type situation is OK? Should the business just forget about it and allow these customers to continue to steal the property?

The business takes a $564.00 loss on one piece of rental equipment, not to mention the time the collector has spent trying to get the payment or property returned.

As a family owned, single store business, the business owner can't take much of this, and remain viable and support his family.

I know many people hold a negative opinion of the RTO business. They believe that these business owners are just ripping off the people with damaged credit or low income.

Actually, all they are doing, is providing an option for disadvantaged folks to have the things they want, or in some cases need, such as refrigerators, stoves, washers and dryers or a bed to sleep in. The normal retail or financing companies just laugh at them and send them on the way.

I'm sorry to disagree with the idea that these type people should not be prosecuted for theft, there is no other way to look at it.

[JudyKayTee]

Do you think that this type situation is OK? Should the business just forget about it and allow these customers to continue to steal the property?

The business takes a $564.00 loss on one piece of rental equipment, not to mention the time the collector has spent trying to get the payment or property returned.

As a family owned, single store business, the business owner can't take much of this, and remain viable and support his family.

I know many people hold a negative opinion of the RTO business. They believe that these business owners are just ripping off the people with damaged credit or low income.

Actually, all they are doing, is providing an option for disadvantaged folks to have the things they want, or in some cases need, such as refrigerators, stoves, washers and dryers or a bed to sleep in. The normal retail or financing companies just laugh at them and send them on the way.

I'm sorry to disagree with the idea that these type people should not be prosecuted for theft, there is no other way to look at it.

Portions which I am not addressing I have deleted - have not changed the quoted portions.

I know you feel there is no other way to look at it; I think there is.

No one is saying (to my knowledge) that stealing is OK - the question is whether the Courts can/should/would/could get involved and who within the legal system makes that decision.

And, yes, RTO's certainly carry a negative image. Are they ripping people off? I don't know - what does that $564 computer end up costing the customer? What's the rate of interest on that purchase? I suppose it's free enterprise.

I agree that if an adult walks in and is willing to sign, then why not sell to them? Who wants to be the World's financial conscience and decide whether someone actually needs or simply wants a computer, washer/dryer? But is there in inherent risk in selling/renting to someone ("these type people," as you put it) who has already demonstrated an inability to handle money?

I don't know what the Courts should do - in my area the Court system is terribly overloaded. Is it fair? I don't know. When someone outright steals from me - walks out of the store with merchandise - it often takes 60 to 90 days to get a Court date. Is that fair? Should I wait in line behind a corporation which has knowingly and willingly extended credit to someone with, at best, a risky credit history?

I don't know the answer - I serve the papers for one of the companies - I am not allowed to divulge the names of any clients, I trust you understand) and (unenforceable) Judgments get filed. I would guess it then ends there -

Right up until the debtor walks into the next RTO and signs for something else.

[excon]

Hello again,

I think the problem is with the law, or the interpretation of the law, or the uneven prosecution of the law. You have a right to be angry. Hopefully, the filing of your motion will bring the issue to a head. The courts should decide one way or the other.

You may not win. I don't think your business should have special privileges to prosecute your deadbeats when other business's don't have that option.

Indeed, your employer has chosen a business wherein he knows that a great percentage of his clients will default. Therefore, it's disingenuous to claim that he's a victim in criminal court. He's not a victim in the classic sense. In fact, he counts on his clients defaulting.

Look, RTO is a fine business to be in. I make no judgments on it. It provides a needed, if expensive, alternative for the credit challenged...

However, no other business that lends to this demographic gets the additional hammer that a criminal prosecution brings. Yours shouldn't either. In fact, your business is just like any other lender who gets stiffed. Were it not for this "loophole", these are civil issues.

excon

[ScottGem]

Let me weigh in here, because I really do see both sides of the story. On the one hand, it certainly appears that RTO is used the public courts as a collection agency. And the County Attorney is not happy with the expense of doing this. On the other hand, the law does exist and should be prosecuted.

If you took this as an election issue you would lose. Imagine this exchange:

Reporter: Mr CA, how do you answer charges that you refuse to prosecute people who steal from RTO?
CA: Well sir, I have a small staff with a small budget to deal with. The way I look at it, RTO is trying to use taxpayer money to collect from people they loaned items to. In my opinion that's a waste of taxpayer money.

End of story. Any voter will see the CS trying to save taxpayer money and RTO (which already has a questionable rep) trying to misuse taxpayer money.

What I would try to do is negotiate a compromise with the CA. I would point out that the only time you ask them to prosecute is when the situation is clearly an attempt to rip off RTO. Explain to them that you will only submit cases where the all other attempts at collection have failed and where only a single payment was made, indicating any attempt to steal property.

Try to show that most of the work is done by RTO and show the favorable resolution rate. Point out that successful prosecutions will act as a deterrant so as to reduce future cases.

[progunr]

That is the exact position I have taken.

Every detective that has handled my cases agrees with my position. They can't believe the arrogance of these customers, who upon actually speaking to the detective, will tell him that "there ain't nothing you can do about it, it ain't against the law, it's rent to own".

My unfortunate situation is that they have allowed this to go on for over 20 years now,and the attitude, and word on the street is that yes, it is perfectly OK to steal from the RTO stores. It's been going on for two, or maybe even three generations now, and while the other RTO dealers would just accept it when the police told them to go away, I am not willing to do so.

I do not attempt to prosecute customers who have made several payments, or, who will simply communicate with the business when they are in default.

Only the most obvious attempts to obtain the property and avoid making any payments, other than the one it took to get the property delivered, are being presented.

I believe that as long as the statute is valid, and there is no legal reason to deny these cases, they have the duty to prosecute them. If they don't like the statute, then they need to take the steps to change it, so that there is a legal reason to refuse them.

If you think my example seems extreme, in Oklahoma, it is actually a crime to allow your Rent To Own Agreement to expire beyond 12 days. Talk about the police being used as a collection agency!


I'm working on putting together the writ of mandamus and will file it as my last resort.

Once that has been filed, should it be denied, I guess this RTO dealer will be on his own and I can wash my hands of it.

Anyway, I appreciate everyone's input, I will post an update to this topic as any new results take place.

[JudyKayTee]

Once that has been filed, should it be denied, I guess this RTO dealer will be on his own and I can wash my hands of it.

Anyway, I appreciate everyone's input, I will post an update to this topic as any new results take place.

Nothing to do with this but are the stores owned individually, by a corporation, franchises, mix and match - ?

[progunr]

Nothing to do with this but are the stores owned individually, by a corporation, franchises, mix and match - ?

The work I am doing is for a single store franchise, one owner, incorporated.

I'm sure the BIG boys can just write off the losses, and never even notice it.

A man with a family, and a one store operation, can hardly afford that option, at least not for very long.

[JudyKayTee]

The work I am doing is for a single store franchise, one owner, incorporated.

I'm sure the BIG boys can just write off the losses, and never even notice it.

A man with a family, and a one store operation, can hardly afford that option, at least not for very long.

Same with shoplifting, which is what I face - or opening a package, taking product (or some product) out, returning package to shelf.

You wonder what the solution is - between the reluctance you are running into and plea bargaining...