Bail Bond Agent Blog

State v. Poteat, 594 S.E.2d 253 (N.C. App. 2004) held that N.C. Gen. Stat. §15A-544.5(f) barred the court from setting aside the bond forfeiture. The statute provides that a forfeiture cannot be set aside for any reason if the surety or bail agent had “notice or actual knowledge” before executing the bond that the defendant had failed to appear on two or more prior occasions. The court held that “notice” includes constructive as well as actual notice, and that the facts of the case were sufficient to put the bail agent on constructive notice of the defendant’s two prior failures to appear.

In State v. Evans, 601 S.E.2d 877 (N.C. App. 2004) , affirmed 610 S.E.2d 198 (N.C. 2005) the surety surrendered the defendant before expiration of the 150 day period at the end of which the forfeiture would become final. The surety also filed a timely motion to set aside the forfeiture, but the surety did not actually mail the motion until 9 days after the date he certified he had mailed it. Such delay in mailing seemed to be this surety’s pattern of behavior and had the effect of reducing the Board of Education’s time to respond to the motion. The trial court denied the motion based on the delayed mailing (by statute the surety was entitled to have the forfeiture set aside when he surrendered the defendant, so the motion should have been granted if addressed on its merits). The surety did not appeal that denial but several months later filed a motion for relief from the judgment. In a 2-1 decision, the Court of Appeals held, in effect, that being right was not a sufficient “extraordinary circumstance” mandating relief from a final judgment. The dissent disagreed and thought that precedent established the post-judgment relief should have been granted.

State v. Robertson, 2004 WL 2340991 (N.C. App. October 19, 2004) is a case which cries out for legislative correction. The defendant was incarcerated in a county jail on a fugitive warrant on the day he was supposed to appear. The surety timely moved for relief from forfeiture. The trial court granted the surety relief, and the court of appeals reversed. The court applied the relevant statute, G.S. §15A-544.5, literally and held that since the defendant was not incarcerated in a “unit of the Department of Corrections and is serving a sentence” no relief could be granted. The surety argued that it met the spirit if not the letter of the law. The court’s answer was that “This argument, however, is for the General Assembly to address. We are bound by the statute.” Presumably the School Boards in North Carolina, which receive the money from bond forfeitures, will now start opposing any relief based on the fact that the defendant was incarcerated if he or she was not in a state Department of Corrections unit and also serving a sentence.

In State v. Saunders, 2005 WL 14108 (N.C. App. January 4, 2005) the clerk delayed for 18 months in mailing the surety notice of the defendant’s failure to appear and entry of the order of forfeiture, but the judgment was not entered until more than the required 60 days after the notice was given. The court found that the surety was not prejudiced by the delay; indeed if the surety had been monitoring the case it would have had a substantial additional period to locate and return the defendant. The court also held that the statute in effect at the time the bond was issued controlled, and that the addition of a street address above the surety’s post office box did not make mailing of the notice defective.

State v. Moore County Board of Education, 2005 WL 90939 (N.C. App. January 18, 2005) held that post judgment proceedings challenging an order granting relief from forfeiture was subject to the civil rules of procedure, and therefore the Board of Education’s motion for reconsideration of the order was timely and should have been decided on its merits. The Court did not consider whether granting the surety relief from the forfeiture was proper. The case was remanded to consider the Scholl Board’s motion on its merits.

State v. Belton, 610 S.E.2d 283 (N.C. App. 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office and a certificate of mailing in the file. The surety filed an affidavit of one of its employees that the notice was not received, but the Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider two other arguments because they were not included in the assignments of error in the appeal.

State v. Banuelos, 2005 WL 756893 (N.C. App. April 5, 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk’s office, a certificate of mailing in the file and the undeliverable returned envelop sent to the defendant and kept in the court file. An employee of Capitol Bonding Corporation testified that the notice was not received. The court noted that she admitted she had filed seven to ten affidavits claiming that notices from various other counties in North Carolina had not been received. The Court held that there was sufficient evidence to support the trial court’s finding of fact that the notice was mailed. The court refused to consider several other arguments because they were not included in the assignments of error or not addressed in the surety’s brief. This appeal is virtually identical to State v. Belton decided on the same day.

State v. Paulino, 2005 WL 756890 (N.C. App. April 5, 2005) is almost identical to State v. Belton, 2005 WL 756621 and State v. Banuelos, 2005 WL 756893 decided by the same court on the same day. In each case, Aegis Security Insurance Company appealed denial of relief from bond forfeiture on the ground that notice of the forfeiture was not properly mailed. In each case, the same employee of Capitol Bonding Corporation testified the notice was not received. In each case the Court affirmed the trial court based on the court clerk’s description of the standard procedure to mail the notices and the contents of the record in the case file.

State v. Lopez, 2005 WL 887270 (N.C. App. April 19, 2005) and State v. Rodriguez, 2005 WL 892475 (N.C. App. April 19, 2005) are two more cases in which the Court affirmed forfeiture of bonds in spite of testimony by an employee of Capital Bonding that notice of the forfeiture was not received. The trial court held a hearing, and the state’s only evidence was the certificates of mailing from the court files. The Court of Appeals held that this was sufficient to support a finding that the notices were mailed as required by the statute.

State v. Ferrer, 611 S.E.2d 881 (N.C. App. 2005) is another appeal by Aegis based on testimony by the same Capitol Bonding employee that notice of forfeiture was not received. Two deputy court clerks testified on the procedures to mail forfeiture notices (one of them also remembered mailing the notice), and the trial court found that the notice was mailed. The Court of Appeals affirmed refusal to vacate the forfeiture judgment.

State v. Ochoa, 2005 WL 1018070 (N.C. App. May 3, 2005); State v. Landaver, 2005 WL 1018073 (N.C. App. May 3, 2005) and State v. Flores, 2005 WL 1018153 (May 3, 2005) are three more appeals by Aegis Security Insurance Co. of denials of motions to set aside bond forfeitures for lack of evidence of mailing and the alleged unconstitutionality of the bond forfeiture statute. In each case, the Court affirmed the trial court citing State v. Ferrer.

State v. Edwards, 2005 WL 1949517 (N.C. App. August 16, 2005) held that recovery of the defendant after the final judgment of forfeiture had been entered did not constitute “extraordinary circumstances” entitling the surety to relief from the judgment as a matter of law. If the defendant had been returned before final judgment, the court pursuant to G.S. §15A-544.5(b)(3) “shall” set the forfeiture aside. Once the judgment is entered, however, G.S. §15A-544.8 controls and the judgment can be set aside only if proper notice of the forfeiture was not given or the court, in its discretion, finds “extraordinary circumstances” entitling the surety to relief. In this case, the trial court denied relief, and the Court of Appeals affirmed. From the discussion, it seems likely that if the trial court had granted relief, that also would have been affirmed. The concurring judge noted that without a reasonable hope of relief, there is no reason for the surety to spend time and money trying to apprehend the defendant once a judgment is entered.

In State v. Sanchez, 2005 WL 3465562 (N.C.App. December 20, 2005) the defendant failed to appear and the court directed that a warrant be issued and the bond forfeited. The clerk, however, did not mail notice of the forfeiture until 36 days later. N.C. Gen. Stat. §15A-544.4(e) provides that the notice must be mailed not later than the thirtieth day after the date on which the forfeiture is “entered.” The surety moved to set aside the forfeiture, and the trial court denied the motion. The surety appealed, and the parties argued whether the forfeiture was “entered” when the court declared the forfeiture or when the clerk prepared the bond forfeiture notice and keyed the information into the Civil Case Processing System. The Court of Appeals refused to decide the issue because it thought that under N.C. Gen. Stat. §15A-544.5 relief from a forfeiture can be granted for only certain enumerated reasons, and late notice is not one of them. Late notice is a grounds to grant relief from a final judgment of forfeiture under N.C. Gen. Stat. §15A-544.8. In effect, the Court of Appeals held that the surety would have to wait until a judgment was entered and then appeal that as the only way to gain review of the late notice issue.

In State v. Hernandez, 2006 WL 389643 (N.C.App. February 21, 2006) the defendant failed to appear and the bond was forfeited. The clerk, however, did not mail notice of the forfeiture until five months later. North Carolina Gen. Stat. §15A-544.4 required that notice be mailed within 30 days, and on the surety’s motion the trial court entered an Order that set aside the forfeiture, directed that no enforcement of the forfeiture be undertaken, the Department of Insurance not be notified, and the surety be exonerated from all further liability. No appeal was taken from this Order, but the state noticed another appearance in the case and had a new forfeiture entered when the defendant again failed to appear. The surety moved to vacate this second forfeiture on the ground that the bond had been exonerated and no longer secured the defendant’s appearance. The trial court granted the motion, and the Board of Education appealed. The Court of Appeals thought that exoneration of the bond because of the clerk’s failure to mail timely notice was of doubtful validity because late notice is not one of the statutory grounds for exoneration, but it held that the failure to appeal the trial court’s Order exonerating the bond made that Order final and conclusive. It therefore affirmed the trial court’s order vacating the second forfeiture.

State v. Hollars, 2006 WL 537481 (N.C.App. March 7, 2006) affirmed denial of the surety’s motion to set aside forfeiture of the bond. The defendant failed to appear and the surety was given notice. Before the final judgment date, the defendant was arrested in Tennessee, and the surety’s agent appeared in Tennessee and “surrendered” the defendant to the sheriff there. The surety moved to set aside the forfeiture. The Court held that when N.C. Gen. Stat. §15A-540(b) says “a surety may surrender a defendant who is already in custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant” it means any sheriff in North Carolina.

State v. Walker, 2006 WL 997856 (N.C.App. April 18, 2006) held that the professional bondsman knew or should have known that the defendant had failed to appear at least twice prior to the time the bond was written and, therefore, under N.C. Gen. Stat. 15A-544.5(f) forfeiture of the bond could not be set aside for any reason. The Court of Appeals reversed the trial court and reinstated the forfeiture even though the bondsman showed that the charges were resolved. The bond showed the charge as failure to appear, and with that notice the bondsman could have found the other failures to appear from the court record. The Court stated, “with notice that Walker had a prior failure to appear, Trogdon [the bondsman] could have discovered through the exercise of proper diligence that Walker had a second prior failure to appear.” The statute requires notice or actual knowledge of two prior failures to appear, but the Court essentially waters that down to notice or actual knowledge of one failure to appear with the second supplied by what the agent or surety could have found in the court record.

In State v. Teague, 2006 WL 998083 (N.C.App. April 18, 2006) the Court dismissed the School Board’s appeal of a decision to remit forfeiture of the bond because the trial court did not enter its decision via a written order.

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