Small claims vs court ordered restitution

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Latest post Thu, Aug 23 2007 8:17 PM by adjuster jack. 3 replies.
  • Wed, Aug 22 2007 4:01 PM

    • EHart6
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    • Joined on Wed, Aug 22 2007
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    Question [=?] Small claims vs court ordered restitution

    About 8 months ago my step son (16 at the time) was involved in a theft ring. He was arrested and pled out to three individual thefts. As part of the plea he was ordered to pay fines, cost, and restitution through the court. As we were not married at the time, his mother set up a payment plan with the court and began making payments. As “I” understand it the monies were applied to the court cost first, fines second and the restitution was made last so as the other conspirators could be processed (4 and possibly a fifth), although the plea stated restitution to be made in 10 days. By the terms of the plea he is held jointly and singularly for the total amount of the restitution (basically if no one else pays we have to pay it all, I get that). We have been in regular contact with the court and have had no issues with the payments made thus far. As of today one of the others has pled out to basically the same terms and two others have trials pending.

    Now one of the victims has filed a civil complaint (small claims court) against his mother (son not listed). The claim is for the amount of restitution, with the juvenile court order as their proof. I have no issues with the amount owed. I may have an issue with who is owed. I do have issue with who pays the victim (disperses the monies). I spoke to the probation officer who said to keep making payments to the court regardless of the filing and just take the court order and our receipts to the Small claims court. That it should be tossed out since they already have a restitution order. But they could come back for additional monies not in the restitution order. Sounds to easy to me, so I have a few questions;

    1) I have good reason to believe that the victims insurance paid out. Thus any claim for that amount would be from them and not the victim. But I have no way to verify this. Do I? How could one find this out prior to the court date (small claims no evidentiary process)? We have a no contact order, even if they would say.

    2) The Juvenile court order says restitution is to be paid through the court. As payments are made they (the court) decides who gets what (split between three victims as received) we have no control over that process. Can the victim use the civil court to expedite / circumvent the repayment process? If so what do we do about the Juvenile court plea and or any over payments?

    3) As stated there are multiple conspirators and multiple victims. Would a person making a claim have to enjoin all the conspirators (as I understand Ohio law) for the claim to be legit?

    4) If we do end up paying the full amount to the victim(s), which we likely will, do we have recourse with the other conspirators?

    5) This victim was informed by the court that they were to address any repayment through them, the Juvenile Court, after several harassing phone calls to our home violating a no contact order (yes they work both ways). Not that I have an interest in doing anything about it, would this be considered a continuation of violating that order?

    Like I said I am not challenging the damage amount or fact we (she as the step son is a juvenile) are responsible. I am just trying to get a handle on what the legal processes are so that we (mother and step dad) are not the recipients of a personal vendetta unrelated to the juvenile’s crime. As this victim has made statements about using this to punishing his mother for personal reasons not related to the crime. I won’t divulge those reasons as they have no bearing on this matter. But they do seem to believe they can collect the full amount from both step son (through criminal court) and mom (through civil court). In effect recovering double the actual damages.
  • Wed, Aug 22 2007 8:04 PM In reply to


    re: Small claims vs court ordered restitution

    I'm not in OH but parents can be liable for the crimes committed by their kids and it's not dependent upon the kid being prosecuted. The victim can just sue the parent.

    "3109.09 Damages recoverable against parent of minor who willfully damages property or commits theft offense.

    Any owner of property may maintain a civil action to recover compensatory damages not exceeding three thousand dollars and costs of suit from the parents who have the custody and control of a minor who willfully damages property belonging to the owner or who commits acts cognizable as a "theft offense," as defined in section 2913.01 of the Revised Code, involving the property of the owner. The action may be joined with an action under Chapter 2737. of the Revised Code against the minor, or the minor and his parents, to recover the property regardless of value, but any additional damages recovered from the parents pursuant to this section shall be limited to compensatory damages not exceeding three thousand dollars, as authorized by this section. A finding of willful destruction of property or of committing acts cognizable as a theft offense is not dependent upon a prior finding that the child is a delinquent child or upon his conviction of any criminal offense."

    Each thief is jointly and severally liable to each victim and any victim can choose to sue all or one or any combination. If your stepson ends up paying the entire amount of restitution to all victims, he can try to recover contributions from the others involved. Your wife would be wise to consult local counsel immediately.
  • Thu, Aug 23 2007 5:15 PM In reply to

    • Ford
      Lawyer
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    • Joined on Thu, Mar 16 2000
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    Feedback [*=*] re: Small claims vs court ordered restitution

    "1) I have good reason to believe that the victims insurance paid out. Thus any claim for that amount would be from them and not the victim."

    Some states may allow a double-recovery in criminal matters. In essence, further punishment for the defendant.

    "But I have no way to verify this. Do I? How could one find this out prior to the court date (small claims no evidentiary process)?"

    There should normally be SOME discovery/evidentiary process. If small claims completely lacks such, then you could normally move the action to regular court.

    "Can the victim use the civil court to expedite / circumvent the repayment process?"

    Unless there is goofy state law, yes. The restitution thing is an ADDITIONAL way for the victim to seek recovery. In no state that I know of would it eliminate the victim's civil remedies.

    "If so what do we do about the Juvenile court plea and or any over payments?"

    Don't overpay. If the amount is $1000 and you pay $500 in the criminal case, and then $500 directly, you'd normally file something in the criminal case to alert the court of the issue.

    "Would a person making a claim have to enjoin all the conspirators (as I understand Ohio law) for the claim to be legit?"

    Since that works a benefit to the defendant, that's normally who has the obligation to join other defendants.

    "4) If we do end up paying the full amount to the victim(s), which we likely will, do we have recourse with the other conspirators? "

    Normally, yes. A civil action for contribution/reimbursement, or possibly something in the criminal case since you'd appear to have "stepped into the shoes" of the victim at that point.

    ""after several harassing phone calls to our home violating a no contact order (yes they work both ways)."

    A criminal no contact order almost NEVER goes both ways. The victims are not subject to the jurisdiction of the court. I'd double-check this.

    "Not that I have an interest in doing anything about it, would this be considered a continuation of violating that order?"

    Almost certainly not. They are seeking their remedy through the civil law. The state cannot bar them from that.
  • Thu, Aug 23 2007 8:17 PM In reply to

    re: Small claims vs court ordered restitution

    "1) I have good reason to believe that the victims insurance paid out. Thus any claim for that amount would be from them and not the victim. But I have no way to verify this. Do I? How could one find this out prior to the court date (small claims no evidentiary process)? We have a no contact order, even if they would say."

    It shouldn't matter to the defendant or the court whether the victim got paid by insurance or not. Because being paid by insurance does not typically prevent anybody from suing and recovering from another party. It is between the insurance company and it's policyholder as to how and when the insurance company recovers the overpayment.

    In fact, if there is a parental responsibility law in your state and the defendant has not been approached by an insurance company in subrogation, it's likely that there may not have been an insurance payment because insurance companies don't miss a chance to subrogate.

    "2) The Juvenile court order says restitution is to be paid through the court. As payments are made they (the court) decides who gets what (split between three victims as received) we have no control over that process. Can the victim use the civil court to expedite / circumvent the repayment process?"

    Yes.

    "If so what do we do about the Juvenile court plea and or any over payments?"

    You bring your payment records to the civil court and any judgment should be reduced by the amount already paid to the victims (not necessarily the full amount since costs and other fees have been deducted).

    Example: You paid 1000 to the court. 500 went to the victims after fees and costs. Judgment for 2500 should have a credit for 500 already paid = 2000 due.

    "3) As stated there are multiple conspirators and multiple victims. Would a person making a claim have to enjoin all the conspirators (as I understand Ohio law) for the claim to be legit?"

    I don't believe so. The victim could sue one defendant for the entire amount. The defendant could raise the contribution of the co-conspirators as a defense and see if the civil judge would buy the idea of applying a percentage to the defendant based on the number of con-conspirators.

    "4) If we do end up paying the full amount to the victim(s), which we likely will, do we have recourse with the other conspirators?"

    Yes, you can sue them for indemnification. Whether you win or lose is anybody's guess.

    "But they do seem to believe they can collect the full amount from both step son (through criminal court) and mom (through civil court). In effect recovering double the actual damages."

    As I said before, you can certainly raise the duplicate payments as a defense in civil court.


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