Civil claims and debt collectors after dismissed shoplifting charges?
November 17, 2011 7:22 AM   Subscribe

Cousin arrested for alleged shoplifting. Charges dismissed, but civil claims persisted and sent to debt collector. Now what?

We have spoken to a lawyer. He's unhelpful ("it's your decision, I'll do whatever I'm told"). I'm looking for advice about the likelihood of various outcomes rather than strictly legal advice. I understand that nobody here is our lawyer.

Several months ago, my cousin (an adult, and more like a little sister to me) was arrested for alleged shoplifting at a major retailer in New York state. She claims it was accidental, but the security guards obviously felt otherwise--I'm shocked, but I don't know why the store would go so far if they didn't think it was true.

She was arrested, but the criminal charges were dismissed (actually, adjournment in contemplation of dismissal--charges dismissed if she doesn't get in further trouble for 6 months). Her record is otherwise totally clean, so that shouldn't be a problem.

She got several letters from the store saying that she owed the department store $500 as a civil claim. She and the lawyer contacted the civil claims department to ask questions or discuss settling, but never got letters or phone calls returned.

The civil claims department eventually passed the "debt" on to an outside collections agency, which has been harassing her and refusing to answer questions. Her lawyer (family friend) is happy to write letters, would be happy to represent her in a civil suit, would generally be happy to do whatever the family wants--but he isn't offering any advice.

Our whole family is in agreement that we don't want a civil suit that becomes a matter of public record, but $500 is a lot for us. Plus my cousin maintains her innocence, the agency is incredibly nasty--and even if we did pay up, that's no protection; the store could still bring a civil suit at any point.

What's the likelihood of more aggressive collections action? Of what kind? What's the likelihood of a civil suit (and realistically, does it change if we pay)? If they do bring a civil suit, is this payment a sign of guilt?

Legally, can anyone explain to me how this differs from blackmail/extortion? Items never left store property and were still in salable condition. The collections agency claims she's liable because she signed a piece of paper that said she understood the store could seek redress. Her signature was under duress (security "suggested" police wouldn't be involved if she signed).

Any anecdotal evidence, permissible advice, or estimates of potential consequences would be great. Thanks so much.
posted by anonymous to Law & Government (13 answers total)
Well the first thing I would do is tell the collections agency to provide proof of the debt.
posted by missmagenta at 7:27 AM on November 17, 2011 [13 favorites]

You need a copy of the paper that she signed to see what she actually agreed to do or pay...
posted by unreasonable at 7:37 AM on November 17, 2011 [1 favorite]

Honestly, it sounds to me like you need a different lawyer.
posted by endless_forms at 8:14 AM on November 17, 2011 [6 favorites]

I had this experience with my former foster kid. We dealt with the store, though, and set up a payment plan. Also, in our situation, the store held back on involving the police based on our agreement to make the payments. It was Macy's, I think, and they were responsive when I called to discuss payment arrangements.

Is there a reason you don't want her to pay it (or some negotiated portion (although I see that there hasn't been much negotiating from the store/collections agency))? She made at the very least a mistake in judgment, and the store expended a lot of time and some money to deal with the consequences.

If you can wrap your head around paying $500 (which is waaaaay cheaper than any lawyer), I would just try to set up a payment plan. Obviously, this is just practical advice, not legal advice.
posted by ClaudiaCenter at 8:18 AM on November 17, 2011 [1 favorite]

From member that would prefer to be anonymous:
When I was in my teens, I was caught shoplifting. They did not prosecute, but they charged me around $300 for "costs." This is different from your situation because there was no threat of criminal prosecution, I was under 18, and I admitted guilt. However, my parents paid the fine immediately (the did have me pay them back), and the whole thing quietly went away. Because the police were not involved, I am sure that I don't have a criminal record from it. So, I don't think that paying the store money has legal consequences in terms of admitting guilt, but I could be wrong - maybe your lawyer could do some research on that.

If you decide that paying the fine is the best way forward, you could probably work out a payment plan with either the store or the debt collector.

In terms of her signature not being valid because it was under duress, you should talk to your lawyer about what constitutes duress, because I don't think the threat of the police being involved qualifies. Your cousin could have chosen to have the police get involved and assert her innocence to the police.
posted by mathowie at 8:21 AM on November 17, 2011

I agree that you need to get your hands on the contract she signed.

In the mean time, there are rules about debt collectors and harassment and there are things she can do to get them off her back.
posted by looli at 8:23 AM on November 17, 2011

Adjournment in contemplation of dismissal can involve probation , a condition of which is often payment of restitution. You need to look at the paperwork prepared as part of the adjournment in contemplation of dismissal in order to determine whether restitution was part of the deal. Until you know that, your discussion of the collection agency is beside the point.
posted by jayder at 8:28 AM on November 17, 2011 [2 favorites]

From the account that you give, I'm concerned that your cousin may not yet have had appropriate legal advice. While it is true that the client decides, the role of the lawyer is to advise on the law. This includes presenting the options and explaining their likely outcomes. Is it possible that the lawyer is not comfortable with this kind of work, and so does not wish to offer advice?

From what you say (family friend), it sounds possible she may not be paying the lawyer to advise. If this is the case, and is the cause of his reluctance, I'd suggest it is a false economy. Please make sure that your cousin is fully advised before making any decisions. This may mean finding another lawyer, if the family friend is unwilling to advise.

I'm only basing any of this on my inferences about what the situation may be. Nothing I've said should be taken as a criticism of the behaviour of the lawyer in question.
posted by howfar at 10:15 AM on November 17, 2011 [1 favorite]

Here's the thing about debt collectors: they're not well-informed. (I am still getting vicious collection notices for a debt that's settled.) You need to deal with them later and take this to the store that contracts the debt collectors. Debt collectors have little or no authority to settle or dispose of the debt; they're just mills, and they get paid for their time to do this.

Unfortunately... in the matter of the criminal stuff, even her ACD seems likely to show up on a background check. This may fade over time (or even sooner); she needs to be prepared if she goes applying for jobs with school systems or financial institutions or law firms.

So you need to circumvent the claims people and talk to the store's own people and get it taken care of there. THEN you need to get the collection people to back off so it doesn't occupy her credit score.

(Not a lawyer; have some experience with this; your mileage will vary.)
posted by RJ Reynolds at 10:24 AM on November 17, 2011

She got several letters from the store saying that she owed the department store $500 as a civil claim. She and the lawyer contacted the civil claims department to ask questions or discuss settling, but never got letters or phone calls returned.

This sounds fishy to me. Is it an actual court judgment against this person, or a court-ordered condition of the settlement in the original case? Is it something your cousin would have agreed to or signed papers about at some point? Or is it some bogus "fee" the original store pulled out of their butt?

Well the first thing I would do is tell the collections agency to provide proof of the debt.

missmagenta's suggestion is a perfectly good first step that shouldn't get in the way of further pursuit of the matter, with or without a lawyer.
posted by gimonca at 11:27 AM on November 17, 2011 [1 favorite]

Go to the store. Have her pay the $500 fine. Do you really believe this was an accident? I would be primarily concerned with her behavior and secondarily concerned about all the legal mumbo-jumbo. You state that $500 is a lot of money "to us". Why is there an "us" involved? She is an adult. The $500 fine is totally on her, not you. If she shoplifted there needs to be a consequence. Don't enable future bad behavior on her part that may lead to much more serious legal entanglementst. Paying more than $500 to a lawyer to get out of paying a $500 fine to make her 100% unaccountable for her actions seems like the wrong thing to do.
posted by Seymour Zamboni at 11:53 AM on November 17, 2011 [3 favorites]

Paying more than $500 to a lawyer to get out of paying a $500 fine to make her 100% unaccountable for her actions seems like the wrong thing to do.

Employing a lawyer to give proper advice and ensure due process is not weaselling out of responsibility, it is a necessary safeguard of civil rights. It is not your place, nor mine, to judge guilt or innocence. Advising someone to adopt a bad legal strategy because you believe that there "needs to be a consequence" suggests a fundamental misunderstanding of legal ethics.
posted by howfar at 5:12 PM on November 17, 2011 [2 favorites]

Here's an interesting Wall Street Journal article (subscription may be required) about these practices of attempting to collect damages from suspected shoplifters.

I'm no lawyer, but I doubt the retailer will actually sue if your cousin doesn't pay them off.
posted by monstrouspudding at 5:31 PM on November 17, 2011

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