Alexander

Bank of America and Clark Howard go at it.

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Clark asks his listeners to do business elsewhere and pull their money out of BOFA. 17 Million dollars has been pulled out so far. This gentleman sold two mountain bikes on Craigslist to an unknown person and tried to cash a check for $2,000 in New York city and was arrested for felony fraud. He was tossed in jail, strip searched and locked in a small cell with drug dealers and users till 11:30 PM that night when his dad bailed him out for $4500, 10% of the $45,000 bond. He says he was never read his rights. The DA drooped the charges the next day. After 7 month he had the record of the arrests removed in superior court. He asked BOFA to pay his $14,000 in legal fees and they refused. Clark offered to pay half if they paid half and they refused this offer as well.

In the California Supreme Court case, Hagberg vs. California Federal Bank (2004) a woman tried to cash a real check and was arrested under suspicion of fraud. She sued and lost. In general cashing checks is a bad thing to do. Just deposit them and if you get a check that might be fraudulent deposit in via the ATM machine. Because of check 21 and color laser printers paper hanging is a growing crime these days. It’s best not to take checks from people you don’t know.

"How the Bank of America blunder went down By now, you’ve probably heard the story of the San Francisco man who was arrested and jailed when he tried to verify the validity of a check at Bank of America branch.

Clark found out about this story and talked with the man, Matthew Shinnick, who has spent about $14,000 in legal fees to clear his name. It all started when Shinnick posted two bicycles for sale on Cragislist and received a check from a man for more than the cost of the bicycles.

He went into his bank to see if the check was legitimate and verify that there was money in the person’s account. He was told it was a valid account and so he cashed the check. At that point, BOA employees called the police and Shinnick was arrested on fraud charges because the check was actually a phony.

He had no idea that the real criminal had used the name of a legitimate company to fake a check. So, Matthew sat in the bank branch for hours while police figured out what to do and then spent the night in jail. Once he got out, he wanted to clear his name legally so the arrest would not come back to haunt him. He had to hire attorneys to do this and it cost him nearly $14,000.

He then went to Bank of America and asked that the bank cover his fees because it was the bank’s error. But so far BOA has refused. This kind of treatment sends the message that banks only care about their bottom line and nothing about their customers. It's unacceptable and it's time to fight back."

http://clarkhoward.com/shownotes/2006/09/21/

Check from a scammer bounces victim into jail

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/08/30/BUGTGKRHSF1.DTL

BOFA meter of withdraws:

http://clarkhoward.com/topics/boa_meter.html

http://clarkhoward.com

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I don't see how it was the bank's fault. The bank did not arrest or charge him, the state did. Whether he cashed or deposited would not make a difference, if the check was fake, it was fake.

I don't blame BofA for not wanting to pay it.

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Legally BOFA is not at fault. Any bank can have any person arrested for trying to cash a check regardless of weather the check is good or bad. The bank just have to believe that a law is going to be broken by the action of the patron.

Weather or not he cashed or deposited the check makes a HUGE difference. To deposit a check one has to have an account with the bank one wants to deposit the check in. A bank generally won’t arrest a person for depositing a check even if it is bad. If the bank does not take extra steps to determine if the check is bad right while the patron is at the bank, the bank won’t figure out that the check is bad until days later. Then they just send the patron a letter stating that the check is bad. It’s the act of trying to get cash out of a bank when you don’t have an account with them that gets bank employees all nervous.

I just think that is extremely bad customer service to arrest a person for trying to cash a check. Personally I have never cashed a check in my life but I understand that most banks will want to see a drivers license and will finger print you and of course they have a video of you.

If the bank felt that the check was bad they could have offered the patron the opportunity of opening a free checking account and have the check deposited into that new account and place a 10 business day (half month) hold on the check.

Cashing checks is just bad.

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You are grossly misunderstanding the law. The bank does not have anyone arrested. It DOES matter if the check is good or bad- cashing a godd check is not against the law, cashing a fraudulent one is. A police officer arrests someone if he or she has PROBABLE CAUSE to believe that a crime has been committed. The bank cannot order someone to be placed under arrest anymore than they can excuse someone for bank robbery.

This is not a customer service issue, nor is it the bank's choice. It is a police matter.

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I am not misunderstanding the law.

I just totally disagree with you.

I say again:

Yes any bank can have any person arrested for trying to cash a check regardless of weather the check is good or bad. The bank just have to believe that a law is going to be broken by the action of the patron.

"Reporting Criminal Conduct Is Absolutely PrivilegedIn Hagberg v. California Federal Bank (2004) 32 Cal.4th39, plain-tiff, Lydia Ortiz Hagberg, a Hispanic woman went to a California Fed-eral Bank to cash a check from Smith Barney. She presented her Cali-fornia driver’s license, Cal Fed ATM card, the Smith Barney check,and her Smith Barney account summary to the teller, who was also aHispanic woman.

The teller suspected that the check was counterfeitand reported it to her supervisor, who immediately telephoned both Smith Barney and the Cal Fed Security manager. The supervisor wasinstructed to call the police.The supervisor then telephoned the police, and when asked aboutthe identity of the plaintiff, the supervisor responded that she appeared"white – maybe Hispanic".

The police immediately arrived, took theplaintiff away from the teller window, had the plaintiff spread her legs for a pat down search, handcuffed her, and placed her under arrest. It was only then learned from Smith Barney that the check was not counterfeit. Plaintiff was released after being detained 20 minutes.

Plaintiff sued Cal Fed of false imprisonment, false arrest, slander, invasion of privacy, intentional infliction of emotional distress, negligence, and race discrimination in violation of the Unruh Civil Rights Act (Civil Code section 51).

Cal Fed filed a summary judgment motion arguing that Civil Code section 47 (B) provides persons who report suspected criminal activity to law enforcement with absolute immunity from tort liabil- ity. (Cal Fed also argued a Federal Statute provided it with immunity, but the court did not address this issue.) The trial court granted summary judgment in favor of Cal Fed, holding that the statutory privilege applied. The plaintiff appealed. The Court of Appeal affirmed, holding that the reporting of criminal conduct to the police constitutes an official proceeding and Section 47(B) serves the important public policy of assuring free access to the courts.

Because of a conflict between this ruling and other Court of Appeal rulings, the California Supreme Court stated that Section 47(B) is intended to "assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing". Otherwise, there would be a "chilling effect" on such communication, which would not be in the public’s best interest. The California Supreme Court reasoned that because the absolute privilege protects individuals from liability for reporting criminal conduct, plaintiff could not pursue his claims since they all flowed from the communication to law enforcement."

http://72.14.205.104/search?q=cache:QrHX8mi0vtoJ:www.caiia.org/sr/Status_Report_04_04.pdf+Hagberg+vs.+California+Federal+Bank&hl=en&gl=us&ct=clnk&cd=7

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So this guy cashed a check for MORE than he was selling the bikes for? I'm sure the scammer asked for the remainder of the funds too right? Besides the fact that something about that should pique a reasonable person's suspicions... that scam has been well known for a long time now, I'm surprised he'd never heard of it.

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You misunderstand. The bank did not arrest her, nor did the police. What happened was that she was detained for investigation. A bank does nto have arrest powers.

What happens here is that a person (in this case the bank teller) calls the police and reports a possibly fraudulent activity (in this case a possibly fraudulent check) and the police DETAIN you in order to investigate. Just because you are wearing cuffs does not mean you are under arrest.

If, during the investigation, the police feel that they have probable cause to believe that a crime has been committed, they place you under arrest.

The case law you provided proves my point- the court stated:

"holding that the reporting of criminal conduct to the police constitutes an official proceeding and Section 47(B) serves the important public policy of assuring free access to the courts."

Which is why the bank is not liable for false arrest.

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You misunderstand. The bank did not arrest her, nor did the police. What happened was that she was detained for investigation. A bank does nto have arrest powers.

What happens here is that a person (in this case the bank teller) calls the police and reports a possibly fraudulent activity (in this case a possibly fraudulent check) and the police DETAIN you in order to investigate. Just because you are wearing cuffs does not mean you are under arrest.

If, during the investigation, the police feel that they have probable cause to believe that a crime has been committed, they place you under arrest.

The case law you provided proves my point- the court stated:

"holding that the reporting of criminal conduct to the police constitutes an official proceeding and Section 47(B) serves the important public policy of assuring free access to the courts."

Which is why the bank is not liable for false arrest.

"The police immediately arrived, took theplaintiff away from the teller window, had the plaintiff spread her legs for a pat down search, handcuffed her, and placed her under ARREST."

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1 The accusation of "Arrest" was made by a witness, an d by the plaintiff. Many people get confused about handcuffing= arrest. It is not the same thing.

2 The police are nto required to read you your rights, unless they plan on using your testimony against you. The fact that you have not been Mirandized is not a defnse to arrest, nor is it a "get out of jail free" card.

3 The bank did not want her arrested, or even detained. Once the mistake was discovered (Smith Barney wrongly told the bank the check was a fake even before the police arrived) the teller asked the police to leave. They did not.

see the actual case, free of the interpretation of people with agendas, here:

http://www.californiacivilprocedure.com/Year_2004_Cal_Op_01_05_2004_Hagberg_v_Calif_Fed_Bank_S105909.htm

I will refer to Turner v. Mellon (1953) 41 Cal.2d 45 (Turner). In Turner, the question was whether the defendant was liable as one who had assisted in bringing about a police officer’s unjustified arrest. Mellon, a Western Union employee, had been robbed several times at his place of employment. He observed plaintiff Turner behaving suspiciously outside his office, telephoned the police, and stated his suspicion that Turner was the robber. Mellon tentatively identified Turner as such to the police. Turner was arrested, but soon was released. We noted that an individual is not liable for false imprisonment unless he or she has “ ‘taken some active part in bringing about the unlawful arrest’ ” by the police. There is no liability if, “ ‘acting in good faith,’ ” he or she simply furnishes information leading to an arrest. (Id. at p. 48.) Although not confronted with a case in which bad faith was alleged, we pointed out how unjust and injurious to the public interest it would be to impose liability for honest mistakes. We concluded that the defendant, though he had given mistaken information leading to the arrest, had not taken an “ ‘active part in bringing about the unlawful arrest.’ ” Defendant’s conduct “as a matter of law, did not amount to participation in the arrest.”

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Unfortunately, Alexander is correct. If the bank swear out a complaint of check fraud, the officer has to make an arrest.

The police are obligated to make an arrest any time they witness a crime, have a warrant (even if the warrant is known to be a clerical error) or have a sworn complaint of a crime. They do not get to pick and choose which arrests to make or not make. That is for the court to sort out later.

Got that from my dad; former US Secret Service agent and former Deputy Sheriff. If the arrest is made on a sworn complaint and it is later found out the complaint was false or in bad faith, the person filing the complaint can be arrested themselves for filing a false police report.

And now some more bad news. Police do not need to have cause to run your license plates on your car...which is tied to a database for outstanding warrants. And they can arrest you for failing to provide identification on demand even if they just stop you on the street for no apparent reason. Thank you US Supreme Court for such bone-headed rulings.

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They can arrest me for not showing ID on demand, even if I am not suspected of anything?

Interesting. Lots of us city-folk don't drive cars or even have licenses to do so. So we're not in the habit of carrying ID around (I for one only have a passport for ID) unless we know we'll be needing it for something.

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Unfortunately, that's correct. If you are stopped by an officer and they tell you to provide identification, refusing to do will result in arrest. The reason is that they must "detain" you in order to identify who you are. In order to go through the process of identifyin you they take you down to the station and book you under the charge of failing to identify yourself so that they can take your prints and run them through AFIS. They can't compel you to produce fingerprint samples unless they first arrest you and charge you with a crime. So they charge you with failing to comply with a "Terry-stop"

The "Terry-stop" has to do with the 1968 USSC decision in Terry v. Ohio which allows law enforcement to detain anyone they cannot identify. Nevada then passed a law to codify the decision and make it a crime to fail to identify yourself to police. All other states have since followed with their own versions of Nevada's law.

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In the state of Florida, the power to arrest without warrant is codified in ss 901.15, which states:

901.15 When arrest by officer without warrant is lawful.--A law enforcement officer may arrest a person without a warrant when:

(1) The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit.

(2) A felony has been committed and he or she reasonably believes that the person committed it.

(3) He or she reasonably believes that a felony has been or is being committed and that the person to be arrested has committed or is committing it.

blah, blah, blah- note that is says no where that a bank can have you arrested. Where all of you are confused is that ANYONE can provide a written statement that can be used as the probable cause for arrest- If I supply a statement that I saw a man rob a 7-11, the officer who arrives has the probable cause to arrest the person, if the officer reasonably believes that a felony has been committed. If the bank supplies a statement that a check is forged, the person gets arrested, it is not up to the bank.

Contrary to the belief of the OP, there is not a bank conspiracy to arrest people who do not have bank accounts. The banks are simply calling the police because people are forging checks. No different than Sears calling the police on shoplifters.

If you try and cash a forged or fraudulent check, you deserve to go to jail, unless you can prove that you are the victim and not the criminal, the same as you would go to jail for having counterfeit money, drugs, or stolen VCR's in your possession.

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Since all states have developed the "Terry-stop" laws, section 901.15(1) applies to refusal to identify yourself.

It's amusing you should point out counterfeit currency, dive. Ya gotta love our legal system. If you accept counterfeit currency (in other words you fail to detect it is bogus) it is your financial loss as the note will not be honored. But you can get busted for posessing it, even if you fail to detect it is bogus. Bone-heads who wrote those laws assume everyone is professionally trained in anti-counterfeitting.

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I hear ya. In most cases you won't go to jail for a bill or 2. Of course, you are out the money.

As far as this thread goes, I am just pointing out that there is no conspiracy to force you to get a bank account, and you aren't going to go to jail for cashing a check. Looking at the supplied website, it appears like a talk show host has somehow gotten a hard on for BofA and is using his position to "get them"

If you believe that the police are going to throw you in jail for cashing a check, you better put on your tin foil hat so you can be safe from the black helicopters carrying the aliens who are working with the IRS to have you declared a corporation so you will be forced to pay taxes when you don't have to.

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If you believe that the police are going to throw you in jail for cashing a check, you better put on your tin foil hat so you can be safe from the black helicopters carrying the aliens who are working with the IRS to have you declared a corporation so you will be forced to pay taxes when you don't have to.

You've been listening to Mancow in the Morning haven't you? :-)

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