estafa / bp22

Hello po... a person issued me 6 post dated checks (60 days from the time item was delivered)for 6 items/goods delivered to his place somewhere in the north. The 6 checks are totalling to 3M. When i deposited the 1st, it turned out to be a closed account. When i called up this person, he tried to explained that he got odd with the bank's manager. He asked us to go to his place instead so he could change the checks which we did. Together with my husband, we drove for mor or less 6 hrs. We scanned the 1st batch of checks so we'll have a copy. On this new 6 checks (another bank), he requested to adjust the dates. However, when we tried to encash the 1st check (due date already), we learned the account has insufficient fund. That very moment we couldn't reach the issuer. The teller advised us to just deposit it for 3 days clearing, since the issuer might have overlooked it. So that's what i did, that was friday. It was already around 4pm when i was able to talked to this person. I informed him that i already deposited the check. He said he'll fund it before the bank closes. BTW, this bank is open up to saturdays. The next day, we were surprised to learned that his business place is empty, no goods at all, the person is hiding..it happened so fast..and worst, we learned that it's not only us but more or less we're 10 persons he cheated, all of them with checks also. Tho their checks didn't matured yet,its from the closed account. Some has checks amounting to p600k, 1.4M, 800k, etc, mine is 3M. This happened just last month. Right now, i'm holding 3 bounced checks. I already sent 2 demand letters, 1st was a registered and the 2nd was via lbc,to the last known address which is his business place. This week, we intend to file the case in cidg. The problem is, we learned the person was able to leave the country , went to USA. BTW, it's not only us (mor /less 10 ordinary people) whom he run away but at least 3 financing firms. He loaned around 8 cars, then this cars, he gave them to some people he has debts (again) as "payment" only to find out later that, all were encumbered!
Its so depressing cause 3M is 3M. Its a hard earned money..what's so painful is, i was planning to enroll my 2nd child (4th yr) in mapua (quarterm),but now because we lost a big part of our puhunan, we can just send her here in our place. Talking and explaining to her is one of the painful part...
Can we still get justice, now that the person is out of the country? Is there a way we can do?..PLEASE HELP...

Gud pm, we are incorporators of a company engaged in consultancy services of real estate properties. The company is still operating as of this time. We filed an irrevocable resignation that was acknowledged and signed by our president last July 2009. The president and the two remaining incorporator did not make a resolution or replacement incoporators for us (2) incorporator. Now the problem is , there are clients who are not satisfied with the service provided by the company and filed syndicated estafa against the incorporators of the company, including us; because as per Securities and Exchange Commission we were still incorporators of the company.

My question is, can we show through our affidavit the resignation filed and signed by our president. Is that enough to prove that we are innocent of the accusation because we are not anymore incorporator of the company?

We do not have enough money to hire an attorney, can we make the affidavit in Tagalog? is it acceptable to court?

Thank you very much and hope I will get legal advice on this matter as soon as possible.

cars, sorry to hear your troubles, but it will be very difficult to reach him now that he is out of the country. nevertheless, your first step is still to file you case with the authorities. see if he still has properties here that you can levy against.

egayzaki, an incorporator is an initial owner of the shares of a corporation. you can never change who the incorporators were. perhaps what you mean is that you were a director of the company? if so, then your resignation and its acceptance is a good defense if it was before the acts that are complained of.

attyLLL:
So depressing...
attyLLL, just some few more clarifications and sorry if i sound makulit..a friend, tho not a lawyer, told us that if all or most of us victims will file a case, and warrants will be released, we can "request" to the authorities to rebuke his passport so that anytime he'll come back (very soon)he'll be arrested. Is this true? And, if i may go back to the demand letter, what if the person concerned didn't received or wasn't able to received the registered demand letter we sent (we were thinking of that since he's into hiding already), will it matter in filing the case? Thanks...thanks...

Getting his passport revoked is not easy, but I agree that you should persevere to get warrants of arrest out, inform the Bureau of Immigration and hopefully he will be arrested when he arrives. even better if you can learn when he is coming back so you can tip the authorities.

did you not receive the return card from the letter your sent? try to get proof that he is no longer in his registered address. a certification from the landlord, bgy or homeowner's association can help.

attyLLL,yes we are also director of the corporation. We resign as incorporator, can the resignation apply as to our being director of the company? how if the acts complained of is before our resignation date, can we still use the resignation as a defense?

attyLLL, so the line of defense now, is that we should not be responsible for the acts being complained because we are no longer director of the corporation by virtue of our resignation?

Thank you very much for your prompt response and more power!

attyLLL, we were told that syndicated estafa is not bailable, is it true? if so, if our case which is now for resolution of a fiscal will be recommended to the judge as syndicated estafa, can we still file a motion to bail?

the line of defense should be, if true, that you were never part of any board meeting that approved the acts complained of. as added proof, you even resigned as directors.

yes, syndicate estafa is non-bailable, but for you to be included, it should be shown that you actively participated in the fraudulent acts or you conspired with other persons and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by corporations/associations from the general public. (PD 1689)

if this is a question of sales or real estate, I don't believe it should fall under the definition of syndicated estafa.

what is the stage of the proceedings now? prelim investigation? make sure you file a counter affidavit. if you cannot afford a lawyer, go to the PAO, IBP office or legal aid office of a law school

AttyLLLL, there are seven cases filed . the first two have been submitted for for resolution, we do have a lawyer and have filed counter affidavits but I am doubtful of the defense made for us by our lawyer because we just stated there that we should not be respondents because we are not included on the information sheet filed by the complainant before the NBI and consequently on the Prosecutor's Office. We did not stated on the affidavit as a defense that we were already resigned as incorporator, the reason of our lawyer is we could not present the resignation papers as a matter of defense because "you do not resign as incorporator, you just sold out your shares of stocks" Atty, can we still reopen the cases for investigation so that we can submit a copy of our resignation to the prosecutor?
AttyLLL, thank you very much for your advice; i know that one requirement of syndicated estafa is 5 or more respondent but you are the first to tell us that the case filed should not fall in the category of syndicated estafa. On your recommendations, we prefer Legal Office of Law School, could you name one school?

well, technically, your lawyer was correct. you cannot resign as an incorporator, but the resignation might be deemed relevant as a sign you were distancing yourself from the company.

it is possible to reopen by filing a motion to reopen along with a motion to admit your new submission.

you can go to UP in Diliman, Ateneo in Rockwell or San Beda in Mendiola, or any other law school. good luck.

attyLLL, thank you very much for your answers/advise. It would help us a lot God Bless'



Egayzki

attyLLL:
Hello po uli..i hope you remember my case.. just to add, attyLLL, whenever our driver delivers the item to Mr.M (the person who cheated) in his business place in the north, he uses his own receipt, only that, he puts his name as buyer and the driver's on the seller. Ex of the receipt:

Mr. M's Shop
address:north
Received from Mr.M the amount of .... as payment for the item.,...

my name
driver's name
driver's signature
SELLER

sgd.
Mr. M
BUYER

Usually, our transactions goes like this, Mr. M calls me and asks what item is available, ask the price and then we negotiate. He also calls the driver. Then the driver will now deliver the item.
He issued the checks in the north. I deposited the checks in manila where i opened my account. The item comes from our shop in the south. attyLLL, My follow-up questions:

1. Will it demerit my case if he used his receipt tho he put his name as the buyer? (and not the usual, where he is the seller)
2. Can I file the case in manila where the checks bounced?
3. If Mr. M has still properties, what can we consider as attachments,those under his name? his wife's name? how about those under his children's name?
Once again, thank you and God bless..

1) it just needs some explaining but it's clear that he issued a check and received goods for it
2) yes
3) under o and his wife's name, not the children's names unless you can prove they were transferred to avoid being levied upon

attyLLL;
I was thinking you had lots of loads today ..

attyLLL, we found that one of Mr. M's properties was under his name and his mistress. (1)Can we add this as attachments?
It's confirmed Mr. M was able to get out of the country. (2)What will happened to our case if he won't attend hearings?
(3)If a warrant of arrest is issued, are we allowed to "shout" his name in social networks? (4)If Mr.M will soon come back and arrested (hopes!!), what happens to the case? I mean, will it continue just like that, hearings etc. until a decision will come out?

no, it's this laptop. the thermal pad keeps jumping the cursor. sorry for the typos. i meant properties under his name.

yes, you can point to that property if the court allows motion to garnish.

the court has to acquire jurisdiction over his person. this is through arrest or his voluntary appearance. if neither happens, the case will be put on hold until such time.

i do not recommend you shout out his name. you can make yourself liable for libel. it will be construed as you are just trying to embarrass him.

yes, the case continues until he is convicted or acquitted, or you enter a settlement.

attyLLL,
Thanks so much for patiently answering our queries..you helped us a lot understanding our problems and how we can work things out.
I'll post again soon ...

tenchu

hi gud afternoon atty. my frend has a problem, somebody order from them goods worth 1.7 million pesos and after the company give them a post dated check, they also issued OR and deposited the check, but the check was unfunded and until now they havent got any payment from the company. can they file a case againts the company? tnx

was the check issued during the transaction/delivery or after?

check was issued after the transaction atty. thanks.

then i would say that is just bp 22. the check was not the reason why you parted with the goods.

they can file against them atty? thanks. but how about the OR that issued already.

check has no effect until encashed. they can state that it was a mistake to issue an OR, but it does not validate the bouncing of the check.

This is an easily winnable case for Estafa. check this out.

The law on bouncing check

i respectfully don't agree, and so does the supreme court:

Deceit, to constitute estafa, should be the efficient cause of defraudation. It must have been committed either prior or simultaneous with the defraudation complained of. There must be concomitance: the issuance of a check should be the means to obtain money or property from the payee. Hence, a check issued in payment of a pre-existing obligation does not constitute estafa even if there is no fund in the bank to cover the amount of the check.

http://sc.judiciary.gov.ph/jurisprudence/2005/mar2005/154159.htm

mang jayson, i recommend you do your research on the SC website. i applaud your research efforts, good luck.