Bail Bond Agent Blog

In City of Xenia v. Diaz, 2003 WL 22972039 (Ohio App. December 19, 2003) the court treated a cash deposit made by a third party as a cash bond by the defendant and not as a surety bond. The defendant was subject to an INS detainer, and even though bond was posted he never was released from custody. It appears the City did not try to have him returned for trial. The court held that the appellant who furnished the cash was not entitled to the statutory pre-forfeiture notice and an opportunity to show why the bond should not be forfeited which a surety would have been entitled to receive. It held, however, that he was entitled to a post forfeiture hearing to try to show that performance of the obligation was impossible (i.e., that the defendant was in federal custody). This case ought to give pause to anyone considering posting cash bail instead of a surety recognizance in Ohio. It is clear that the procedural protections extended to the surety will be lost if cash bail is provided.

In State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004) the trial court granted two extensions of time for the bail bond surety to apprehend the defendant but refused to remit any portion of the forfeiture when the defendant was returned shortly after forfeiture. The trial court’s only reasoning was that the nature of the surety’s business was to assume the risk that the defendant would not appear. The Court of Appeals reversed and remanded holding that the trial court had to consider a number of factors including the delay and cost to the state in obtaining the defendant and preparing for trial a second time, the surety’s efforts to return the defendant, and any other factors the court finds to be relevant. The trial court has discretion but must exercise it in light of the purpose of bail to assure that the defendant appears at all stages of the proceeding.

In State v. Hardin, 2003 WL 23167301 (Ohio App. December 31, 2003) motions for remission of bond forfeitures were filed without requesting a hearing or setting forth any factual basis for relief. The trial court denied the motions without a hearing. The court of appeals affirmed, in a 2-1 decision, even though there was no basis in the record to review whether the trial court considered the various factors governing requests for remission of forfeiture. If the sureties had asked for a hearing and alleged facts entitling them to relief, the opinion suggests they would have been entitled to a hearing.

Jones v. Bea, 2004 WL 442876 (Ohio App. March 12, 2004) is a very strange case. The defendant’s father testified he obtained a $15,205 cashiers check payable to the Clerk of Court to pay a 10% cash bond plus fees to the clerk (he would have been liable for the balance of the $120,000 bond if his son failed to appear) but the bail agent waylaid him at the clerk’s office and insisted on signing the bond for the balance as surety, and they agreed that when the $15,000 was returned the bail agent would give the father $8,000 of the $15,000 and keep the rest as his fee. The defendant did not appear for sentencing and the bond was forfeited. The father then sued the bail agent for converting the cashiers check and won. The Court of Appeals reversed and held that since there was no refund there was no obligation to return anything.

In State v. Harshman, 2004 WL 491410 (Ohio App. March 15, 2004) the trial court ordered that cash bail deposited by the defendant and his mother be applied to court costs and restitution. The Court of Appeals held that this was improper. The Court first noted that the Ohio Supreme Court has held that the purpose of bail is the appearance of the defendant and reasons for forfeiture must be related to nonappearance. The State argued that the form signed when the bail was deposited consented to its application to costs and restitution, but the Court held that the consent was invalid because the availability of bail was conditioned on signing the form.

In State v. Rich, 2004 WL 2390085 (Ohio App. October 22, 2004) the surety (Capital Bonding Corp.) appealed denial of its motions to remit bond forfeitures in two cases in which it surrendered the defendants after forfeiture was entered. In the two cases the trial court made identical findings, including that the surety was negligent in writing the bond because the defendant had failed to appear on prior occasions. The Court of Appeals first held that the 30 day period to appeal ran from the date the clerk entered the defendant’s sentence, not the date the bond was forfeited or the date the motion for remission was denied. The Court also held that the trial court did not abuse its discretion in one of the cases because the record supported its findings but that in the other case there was no evidence the defendant had failed to appear on a prior occasion or that the state was inconvenienced by the failure to appear. In the latter case, the Court reversed and remanded for a determination of how much of the forfeiture should be remitted.

State v. Owens, 2004 WL 2526412 (Ohio App. November 9, 2004) held that the trial court abused its discretion in ordering forfeiture of the defendant’s cash bond. The trial court failed to consider the brief delay between the defendant’s breach and her voluntary appearance and the lack of any cost or inconvenience to the state. Rather than remand for consideration in light of these factors, however, the Court of Appeals directed that the bond money be released.

In Maloney v. Ohio Department of Insurance, 2004 WL 2590952 (Ohio App. October 4, 2004) the Court affirmed the Department’s denial of a bail bondsman’s license to a convicted felon. Ohio R.C. 3905.14 specifically provides that the superintendent of insurance may deny an application based on such a conviction, and there was no abuse of discretion in doing so in this case.

In City of Willoughby v. Beckwith, 2005 WL 880220 (Ohio App. April 15, 2005) the surety filed a motion to vacate forfeiture of its bond and a motion for reconsideration of the denial of the motion to vacate. It then appealed denial of the motion for reconsideration. The Court dismissed the appeal on the grounds that the surety could have appealed the original order of forfeiture or the order denying its motion to vacate the forfeiture, but that a motion for reconsideration of a final order, and any decision on such a motion, are nullities from which no appeal can be taken. Therefore, the appeal was untimely and was dismissed.

Castle Bail Bonds, Inc. v. Stoneman, 2005 WL 1005276 (Ohio App. April 28, 2005) affirmed summary judgment for the surety against the indemnitors (the parents of the defendant) based on a promissory note and indemnity agreement they signed. The court rejected the indemnitors’ argument that they should not be liable because they did not read what they signed or no one explained it to them.

State v. Sheldon, 2005 WL 1283681 (Ohio App. May 27, 2005) held that a bail bond can be revoked for violation of conditions other than appearance, but that a forfeiture could be entered only if the defendant failed to appear. The defendant’s presence at the hearing to show cause why the bond should not be forfeited prevented the trail court from entering a partial forfeiture, and the trial court’s judgment was reversed.

State v. Stoneman, 2005 WL 1384662 (Ohio App. June 9, 2005) denied the surety’s motion to remit all or part of the bond forfeiture. The defendant fled, and the surety was unable to recover him in spite of several time extensions. After the bond was forfeited, the defendant was captured by law enforcement authorities in Canada and returned to Ohio. The court refused to remit any part of the forfeiture and held that the surety’s small expense in trying to locate the defendant weighed against the major, successful efforts of law enforcement personnel fully justified the trail court’s denial of any remittitur.

Smith v. Leis, 835 N.E.2d 5 (Ohio 2005) held that cash only bail violated the provision of the Ohio Constitution guarantying that “all persons shall be bailable by sufficient sureties . . . .” Prior to 1998, the Court had held in several cases that the sufficient sureties clause barred cash only bail, but in 1998 the Constitution was amended, and the issue before the Court was whether the amendments changed that result. In a 4-3 decision, the Court held that it did not. The purpose of the amendment was to allow pre-trial detention, under certain circumstances, of defendants charged with less than a capital offense. Among other things, the amendment added the following to Section 9, Art. I, “the court may determine at any time the type, amount, and conditions of bail.” The Court thought that reading Section 9 as a whole, the added language did not give the court an option to prohibit bail by sufficient sureties.

In State v. Hodge, 2005 WL 2936283 (Ohio App. November 7, 2005) the defendant posted a $50,000 cash bond and fled to Florida. She was arrested there and returned. The state incurred costs of about $6,000 to transport her back to Ohio. The Court affirmed denial of her motion for partial remission of the forfeiture. Her failure to appear was willful, and she was apprehended in Florida and involuntarily returned. The factors to be considered in a request for remission are the cost and inconvenience to the state, the willfulness of the violation and such other factors as the trail court finds relevant. The court properly balanced the relevant factors and denial of the defendant’s motion was not arbitrary, unreasonable or unconscionable.

In State v. Carter, 2005 WL 3337733 (Ohio App. December 9, 2005) the defendant had failed to appear in court 66 times in the past including at least three times in this case. Nevertheless, the bail agency provided a bond, the defendant did not appear, and the bond was forfeited. After the police arrested the defendant, the bail agency moved to remit the forfeiture. The trial court denied the motion, and the Court of Appeals affirmed. Remission is within the discretion of the trial court, and none of the factors to be considered favored remission. The Court noted the defendant’s history and stated, “A company engaged in the bail bond business is ultimately engaged in the business of guaranteeing attendance of the defendant at court hearings.”

In State ex rel. D & D Bonding, Ltd. v. Johnston, 2005 WL 3497709 (Ohio App. December 13, 2005) a bail bond agency and its owners and employees sought writs of Prohibition and mandamus to compel the Judge and Clerk of the Jackson County Municipal Court to accept bail bonds from them. The Court denied all relief. The facts are somewhat muddled, but on January 1, 2004, the Judge issued a bail bond schedule that permitted only cash bonds. On January 23 she withdrew that schedule and issued a replacement that permitted either 100% surety bonds or 10% cash bonds. The plaintiffs did not challenge the disparate treatment of surety bonds and cash bonds. The Court denied as moot the request for an order directing the Judge to accept surety bonds.

The plaintiffs also alleged that the Judge instructed the Clerk not to accept their bonds, but the proof did not support the allegation. The Court also stated that the Judge would have been within her discretion to order the clerk’s office to refuse bonds from an agency if she had doubts about the agent’s authority or intention to pay forfeitures.

State v. Warden, 2005 WL 3507844 (Ohio App. December 23, 2005) held that cash bail deposited by someone other than the defendant could not be used to pay the defendant’s fine. The Court stated that a bail bond can be forfeited only for failure to appear and that cash or securities deposited by anyone other than the defendant cannot be used to pay the defendant’s legal obligations except with the consent of the person making the deposit.

In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety’s consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.

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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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In International Fidelity Insurance Co. v. City of New York, 263 F.Supp.2d 619 (E.D. N.Y. 2003) the surety challenged on constitutional grounds the practice of entering judgment of forfeiture against the surety without any prior notice to the surety. The many counts in the complaint included both specific bonds on which such judgments were entered and general challenges to the procedure. The court seemed to agree with the surety that the failure to give advance notice was a constitutional violation but nevertheless avoided ruling on the merits of the claims. The court held that it lacked jurisdiction over the counts of the complaint addressing specific bonds because they could have been raised in the state court by moving for relief from the judgments. The court also held that the general challenges to the procedure did not present an actual case or controversy because the entry of judgment did not deprive the surety of any constitutionally protected property right. The court, after having the case for over three years, dismissed it on jurisdiction and standing grounds without actually deciding the merits of any of the claims.

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In State v. Valles, 99 P.3d 679 (N.M. App. 2004) the bond, on a form mandated by court rules, provided that it remained in force until discharged by the court. The applicable statute, however, stated that the bond was null and void upon a finding that the accused person was guilty. The defendant pled guilty but did not appear for sentencing. The issue was whether the statute or the bond itself controlled. The court held that the statute controlled and reversed a judgment forfeiting the bond.

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State v. Clayton, 825 A.2d 1155 (N.J. Super, A.D. 2003) and State v. Dillard, 824 A.2d 1100 (N.J. Super, A.D. 2003) both hold that in a series of cases the vast majority of the forfeited bond amount should be remitted because of the surety’s successful efforts to recover the defendant and the lack of any expense or prejudice to the state. In one of the cases decided in the Clayton opinion, the surety was entitled to complete exoneration because it apprehended the defendant and objected to forfeiture within the 45 day period (since extended to 75 days) provided by N.J. Rule 3:26-6(b). The trial court reinstated the bond and again released the defendant who again failed to appear and was again recovered by the surety. The appeal court held that reinstating the bond without the surety’s consent discharged the surety from any obligation for further defaults and the surety had fully performed after the first default as required by the rule. In the other 8 cases decided in the two opinions, some part of the bond was forfeited but most was remitted in light of the surety’s monitoring and recovery efforts.

State v. Harmon, 825 A.2d 515 (N.J. Super.A.D. 2003) is another decision of the New Jersey intermediate appellate court granting some degree of relief from forfeiture on 14 out of 16 bonds under consideration. The court decided that if the defendant remained at large, no relief was warranted. On the rest of the cases, some relief was granted depending on the facts of each case.

State v. Simpson, 839 A.2d 896 (N.J. Super. A.D. 2003) is an opinion in 17 consolidated appeals raising constitutional challenges to the New Jersey procedure barring sureties and agents who fail to satisfy an uncontested judgment of forfeiture from writing more bonds until the forfeiture is paid. The 17 cases all involve two sureties who have the same Program Administrator, Capital Bonding. The Court found that the constitutional issues were frivolous and resoundingly upheld the right of the New Jersey Supreme Court to establish rules barring defaulting sureties. The Court was also highly critical of the surety companies for which Capital Bonding is the managing agent for a policy of appealing virtually every forfeiture. In cases in which the defendant was not recovered, the grounds of appeal have been the constitutional issues now rejected by the Court, supported by identical “verbatim” briefs. The Court states, “Hundreds of such appeals have been filed in the last several years, but because the appellant saw fit to withdraw or settle them as they were calendared, these constitutional issues were not adjudicated, and the stream of ‘verbatim’ appeals therefore continues.” This is unusually strong language from a court describing what it clearly thinks is an abusive practice.

In re Preclusion of Brice, 841 A.2d 927 (N.J. Super. A.D. 2004) is another case indirectly involving Capital Bonding Corporation. The court held that the contracts, court rules and statutes involved permitted the court to de-list (refuse to accept further bonds from) the bail agent, as well as the surety company, if forfeitures were not paid. Although Capital Bonding was not a party, the court noted that the agent’s contract was with Capital Bonding not with either of the surety companies.

State v. Wickliff, 875 A.2d 1009 (N.J. Super. 2005) vacated the conviction of a recovery agent for criminal trespass because the trial court’s instructions to the jury did not allow the jury to find that the defendant was not guilty because he reasonably believed he had a right to enter the house of the fugitive’s mother to look for the fugitive. The New Jersey criminal trespass statute requires that the defendant must enter a structure “knowing that he is not licensed or privileged to do so.”

In State v. Ramirez, 875 A.2d 1025 (N.J. Super. 2005) the court consolidated three appeals by Sirius America Insurance Company, reviewed the factors to be considered when the surety requests remission of all or part of a bail forfeiture, and held that there was no basis in any of the cases to overturn the trial court’s exercise of its discretion in determining the amount to remit (in two cases) or not to grant any remission (in the third case).

Dobrek v. Phelan, 2005 WL 1963036 (3rd Cir. August 17, 2005) held that §523(a)(7) of the Bankruptcy Code exempted from discharge the debts of a bail agent on forfeited bonds. In New Jersey, a bail agent who signs the bond is liable for the forfeiture, and a bail agent with unpaid forfeitures is removed from the Bail Registry and thus cannot write additional bonds. Mr. Dobrek had unpaid forfeitures and was removed from the Bail Registry. He sued and argued that his obligations on the bonds were discharged in his Chapter 7 bankruptcy proceeding. The Court held that the debts were “a fine, penalty or forfeiture payable to a governmental unit” and so not discharged pursuant to §523(a)(7).

In State v. AA Bail Bonds, 2005 WL 3500808 (N.J. Super. A.D. December 23, 2005) the surety recovered the defendant for non-appearance in another case and tried to surrender him and revoke the $50,000 bond in the instant case. The trial court refused to revoke the bond, and the defendant failed to appear. The trial court remitted half of the forfeiture. The Court of Appeals reviewed the factors to be considered in granting remission and thought that the facts of the case called for remission of more than 50%. It vacated the trial court order and remanded the case for reconsideration in light of the factors discussed.

State v. Harris, 2005 WL 3527008 (N.J. Super. A.D. December 27, 2005) affirmed an order remitting only 75% of the bond amount. The Court reviewed the various factors for determination of the amount to be remitted, including that the defendant was apprehended by the Sheriff’s office not the surety, and the applicable guidelines and held that remission of only 75% was within the trial court’s discretion and the interests of justice.

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Restvedt v. Carlson, 2004 WL 1336752 (9th Cir. June 11, 2004) involved a “time-pay” bail bond program allowed by the administrative judge of the Bozeman, Montana Municipal Court. Apparently the judge, Ms. Carlson, lets defendants pay cash bail on an installment plan. A bail agent challenged this as depriving him of a constitutional right to practice his profession. The Court held that even assuming there is such a constitutional right, it would not mean that there could not be a competing arrangement. That is, there is no constitutional right not to have competitors. [Not published.]

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State of Missouri v. Angela M. Cook, 104 S.W.3d 808, 2003 WL 21153484 (Mo. App. May 20, 2003) held that the bail agent had apparent authority to appear for the surety at a forfeiture hearing.

In American Western Bonding Company, Inc. v. United Surety Agents, Inc., 2004 WL 627996 (Mo. App. March 31, 2004) a bail agent sued a managing general agent to recover a buildup fund. The trial court held that (1) the MGA properly paid a bond forfeiture from the fund, (2) the agent was not entitled to damages for alleged mismanagement of the fund, (3) the agent was not entitled to punitive damages, and (4) the agent was entitled to the money held in the fund. Since neither party knew the exact amount, no judgment was entered for a sum certain. The parties could not agree on the amount (the MGA claimed it could subtract litigation costs) and the trial court entered an “amended” judgment for the amount in the fund without reduction for the litigation costs. The MGA appealed claiming that the trial court did not have jurisdiction to “amend” the judgment. The Court of Appeals disagreed and held that the first judgment was not final and could be modified, and affirmed the modified judgment.

In State v. Carroll, 2005 WL 1563084 (Mo. App. July 6, 2005) the defendant failed to appear but the bail agent located him in jail in Georgia and had the Sheriff enter the warrant in the N.C.I.C. system. In due course, the Georgia authorities informed the Sheriff that the defendant could be picked up, but the Sheriff did not tell the bail agent. Instead, the Sheriff sent two deputies to bring the defendant back to Missouri at a cost of $2,988.59. The Court refused to forfeit the bond, but ordered the surety to pay the $2,988.59. The surety appealed and the Court of Appeals reduced the amount to the $584.40 that the bail agent testified it would have cost him to go to Georgia and bring the defendant back. The applicable Missouri statute, §374.200.2, provides that the bail agent shall have the “first opportunity” to return the defendant incarcerated in another state and if unable to do so shall pay the cost for the State to return him.

Lass v. Wright, 2006 WL 1330984 (Mo.App. May 17, 2006) affirmed judgment on a promissory note. The defendant was convicted of second degree murder, and the court set bond at $1 million. The fee for the bond was $90,000, and the defendant’s father paid $2,000 and signed a note for the balance. Several months later, the court of appeals ruled that someone convicted of second degree murder was not eligible for release on bond, revoked the bond and incarcerated the defendant. The bondsman sued for the balance owed on the note, and the father counterclaimed for what he had paid on account. The father argued that the bond was illegal and so the note was not collectible. The Court noted that the bondsman was properly licensed and the defendant was released for several months. The Court refused to cancel the note and affirmed judgment for the bondsman.

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State of Minnesota v. Rosillo, 2004 WL 1192085 (Minn. App. June 1, 2004) reviewed the criteria for reinstating and discharging a forfeited bond but held that the trial court did not abuse its discretion in reinstating only $4,000 of one bond (the $4,000 was the cost the surety incurred in unsuccessful attempts to recover the defendant). This seems to be a harsh result given that the defendant was in prison in Mexico, but the court emphasized the surety and agent did very little to monitor him or keep informed about his non-appearance. The court also held that the court administrator’s failure to mail notice of non-appearance and forfeiture (the bond was reinstated when the defendant appeared two days later) was outweighed by the surety’s failure to monitor the defendant, and the trial court was justified in not discharging the other bond based on the administrator’s failure to mail the notice.

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In re Forfeiture of Bail Bonds, 705 N.W.2d 350 (Mich. 2005) remanded the case to the Court of Appeals to reconsider its decision to remit only a small part of the bond. MCL §765.28.1 was amended in 2003 to require that the court give the surety notice not later than 7 days after the defendant failed to appear. The notice was given six months after the failure to appear. The Supreme Court clearly suggested that the partial remission was not compliance with the statute.

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In State v. Cabral, 2005 WL 10313 (Mass. January 4, 2005) the state charged a bail bondsman and his alleged agents with assault and various other crimes in connection with the apprehension and surrender of the bond principal. The Court held that the common law privilege of the surety and its agents to apprehend and surrender the principal is still the law in Massachusetts. The Court discussed the burden of proof and standards to determine the extent of this lawful authority.

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