Bail bond agencies act as surety for bonds for compensation
in criminal cases in Michigan. Without them, our jails would be more
over-crowded. The agencies can, however, seek return of funds under two
statutes, MCL 765.28 and MCL 600.4835. The Michigan Court of Appeals clarified
the relationship of the two in Calvert Bail Bond Agency, LLC v County of St.
Clair, COA No. 324824.
Facts: The
plaintiff, Calvert Bail Bond Agency, was the surety for several criminal
defendants who did not appear for their court hearings, which resulted in
forfeiture judgments being entered against them. Plaintiff paid the forfeiture
amounts and brought the defendants into the court more than 56 days after the entry
of the corresponding forfeiture amounts.
Calvert's request for recovery of the funds it paid under MCL
765.28, but was denied. It then turned to the circuit court and sought recovery
under MCL 600.4835, which permits a circuit court to "remit any penalty" when it determines that doing so would be "just and equitable" The trial court held no cause of action as Calvert’s sole
remedy for return of the funds was under MCL 765.28. The Court of Appeals
disagreed and reversed and remanded.
The Michigan Court of Appeals (MCOA) interpreted the two
statutes involved explaining that they are In Pari Materia (Latin, Upon the
same subject) a designation applied to statutes or general laws that were
enacted at different times but pertain to the same subject or object. Such
statutes must be interpreted in light of each other since they have a common
purpose for comparable events or items.
The procedure to seek return of the funds, according to the
Court of Appeals, is as follows:
1. When
the criminal defendant fails to appear, a default is entered under MCL.
765.28(1)
2. Notice
is given to the surety of the failure to appear
3. The
court also notifies the surety that they can appear to present facts why the
defendant didn’t appear and ask that the judgment not be entered.
Once the judgment is entered under MCL 765.28 (1), sec. (2)
allows the surety to have the judgment set aside and the money returned within
one year from its entry when the defendant has been apprehended, the ends of
justice haven’t been thwarted, and the county has been repaid its costs in
apprehending the defendant.
The mandatory return of the funds, however, is subject to
sec. 3 of the statute, which makes the return inapplicable where the defendant
is apprehended 56 days or more after the entry of judgment of forfeiture and
the surety hasn’t paid the full amount.
The question is: Whether the remedy under MCL 600.4835
remains viable. The Michigan COA held that it is. The statute governs the
return of penalties, which includes forfeited recognizances. The statute,
however, gives the court discretion to return all or part of the forfeited
amount.
Labels: "just and equitable", appeals, Bail Bond Agencies, Civil, Civil Appeals, forfeited recognizances, MCL 600.4835, MCL 765.28, Michigan, Michigan Appeals, recovery of the fund, return of penalties, surety
