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Volume 1: Number 3
April 15, 2014
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Greetings!
This month, 1st Atlantic Surety Company continues its series of newsletters focusing on helping North Carolina Bail Agents to better understand the process of having a bond forfeiture set aside.
As noted in a previous newsletter (Volume 1, Number 1, February 15, 2014) you take a risk each time you post bail for clients because you assume the responsibility for their appearance in court. When they don't show up, the bond to which you agreed may be forfeited.(1) You can have the bond set aside, but only under one of seven specific circumstances which are listed by statute in North Carolina.
Prior to establishing the bond, the bail agent should make it perfectly clear to the defendant and her/his indemnitor(s) that there is no valid reason for missing court or for being late for court. Having this discussion with each and every client is the first line of defense against having to pay a forfeiture.
Please remember that: 1) this series of newsletters is to be considered to be a general discussion on bond forfeiture or any other topic that may be covered in the series; 2) all 100 counties in North Carolina may apply the statutes in a somewhat different manner and that the Bail Agent must be fully aware of how the courts in the counties in which she/he is doing business apply the statutes; and, 3) it is not the intention of 1st Atlantic Surety Company to tell any Bail Agent how to operate her/his business, but to offer suggestions that might be considered as "best practices" in the State of North Carolina.
Much of the information presented in these newsletters will be common knowledge for an experienced Bail Agent, but being "reminded" of the obvious may be helpful. Also, this series might prove to be helpful when training new Bail Agents who wish to join your team.
This series of newsletters will be distributed to General Agents who are appointed with 1st Atlantic Surety Company. The General Agents can distribute to their Sub-Agents via e-mail or print as they deem appropriate.
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Be Proactive! Don't Delay!
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North Carolina General Statute § 15A-544.5(b) provides the only seven methods to properly set aside a bond forfeiture. (2) To be successful, you must take action before the forfeiture becomes a final judgement, which occurs 150 days after notice of the forfeiture.
(3) You cannot have a forfeiture set aside for any reason that is not laid out in this statute, and the motion to set aside forfeiture must be filed and served on both the Districa Attorney and the Attorney for the County Board of Education within 150 days to be valid.(4)
The February, 2014, newsletter focused on the first two grounds under § 15A-544.5(b) on which a bond forfeiture may be set aside: 1) FTA Set Aside or OFA Recall; and, 2) All Charges Disposed. (5)
This issue will focus on the third ground for setting aside a bond forfeiture. A bond forfeiture may be set aside when the defendant has been surrendered to law enforcement by the surety on the bail bond. (6) Furthermore, this issue will discuss the two ways to avoid forfeiture even after a judgement of forfeiture has been entered.
Regardless of the grounds used to have a forfeiture set aside, there is little or nothing to be gained by postponing action once the Forfeiture Notice has been received.
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Surrendering Your Defendant
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Surrender of a defendant by the defendant's Bail Agent is governed by North Carolina General Statute § 15A-540, which provides that the Bail Agent may surrender the defendant either before or after the defendant breaches a condition of the defendant's pretrial release. Because this newsletter focuses only on the situation where the defendant's bond has already been forfeited due to her/his failure to appear in court, we will be discussing only that portion of § 15A-540, 15A-540(b), dealing with surrender of the defendant after
the defendant has breached a condition of release.(7)
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Issues Surrounding The "Arrest"
State v. Mathis
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The first portion of North Carolina General Statute § 15A-540(b)(Surrender After Breach of Condition) provides:
"After there has been a breach of the conditions of a bail bond, a surety may surrender the defendant as provided in this subsection. A surety may arrest the defendant for the purpose of returning the defendant to the sheriff."(8)
In those cases where the defendant has failed to cooperate, the bondsman might have no choice but to physically "arrest" and detain the defendant to effectuate the surrender. Bail Agents are given considerable power to seize the defendant by the law; in fact, "North Carolina has always recognized the sweeping powers of sureties, or Bail Agents (Bondsmen) who act as their agents, to apprehend the principal and use whatever force is reasonably necessary in the process." (9) The power of the Bail Agent over the defendant is centuries old, and arises out of the defendant's implied consent in the bond agreement that the Bail Agent may seize him at anytime. (10)Often, a Bail Agent will have to enter a residence to seize the defendant. When the defendant lives alone, a "bail bondsman may forcibly enter [the defendant's] residence to search for and seize him." (11) It is equally clear that Bail Agents have no authority to enter the residence of a third-party where the defendant does not reside, unless the third-party gives the Bail Agent (bondsman) consent. However, when the defendant resides with a third-party, the law treats this situation as if the defendant lives alone; the fact that the defendant lives with third-parties does not revoke the Bail Agent's authority to enter the home to seize the defendant. (12)
This last rule, regarding situations where a defendant resides with a third-party, brings us to the final question of whether Bail Agents can overcome the resistance of a third-party who is attempting to prevent apprehension of the defendant. If a Bail Agent enters a home that the defendant shares with a third-party, and the third-party attempts to impede the capture of the defendant, what do the courts say that you, as a Bail Agent can do to affect the capture? In 1998, the North Carolina Supreme Court answered this question directly for the first time, in the case of State v. Mathis.(13) The Mathis Court held that Bail Agents "may use such force as is reasonably necessary to overcome the resistance of a third party who attempts to impede their privileged capture of their principal. But they may use only such force as is reasonably necessary under the circumstances to accomplish the arrest."(14)
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Surrendering Denfendant Who Is In Custody
State v. Hollars
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The second portion of North Carolina General Statute § 15A-540(b)(Surrender After Breach of Condition) provides:
"After arresting a defendant, the surety may surrender the defendant to the sheriff where the defendant was bonded. Alternately, a surety may surrender a defendant who is already in the custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant."
The first part of this section is simple enough. If a Bail Agent arrests a defendant, she/he is to surrender the defendant to: 1) the sheriff of the county in which the defendant is bonded to appear; or, 2) the sheriff where the defendant was bonded.(15) However, there is an important rule to keep in mind if the defendant is in the custody of any sheriff outside of North Carolina: even if the defendant is in the custody of a sheriff outside of North Carolina, the defendant must still be surrendered to a North Carolina sheriff.(16)
In State v. Hollars, the defendant was bonded by a Bail Agent on drug charges in Watauga County, NC. (17) The defendant failed to appear, and a bond Forfeiture Notice and Warrant For Arrest was issued. While a fugitive,the defendant was arrested on drug charges in Johnson County, Tennessee, where he remained in custody. On hearing of the defendant's whereabouts, the Bail Agent surrendered custody of the defendant to the Johnson County, TN Sheriff and made a motion to set aside the forfeiture in Watauga County, NC. The Bail Agent's motion to set aside was denied by the Court, because he did not surrender the defendant to a North Carolina Sheriff, even though the language of the statute stated "any sheriff." So, in short, to surrender a defendant under a North Carolina bond, you must surrender the defendant to a North Carolina sheriff, regardless of where the defendant may be incarcerated at the time of surrender. (18)
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Timing Is Everything
State v. Williams
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In order to set aside a forfeiture on the grounds of surrender, you, as the Bail Agent, only have 150 days from the date on which you were given notice of the forfeiture to do each of the following three things. You must do all three in order to avoid forfeiting the bond money. - Locate/arrest the defendant and surrender her/him to law enforcement in the appropriate North Carolina county;
- File a proper "Motion To Set Aside The Forfeiture" citing § 15A-544(b)(3);
- Serve the motion on both the Distric Attorney and the attorney for the County Board of Education.
The 150 day requirement is interpreted strictly by North Carolina Courts. In one recent case, State v. Williams, a Bail Agent arrested a defendant and surrendered her to the proper sheriff on the 150th day at 9:40 PM. However, because the courthouse was closed, the Bail Agent did not file the "Motion To Set Aside" until the 151st day.(20) The court flatly stated that the Bail Agent was late in filing the "Motion To Set Aside" even though the defendant was surrendered properly and in a timely manner. The fact that the courthouse was closed, making it impossible to file a timely "Motion" was not a sufficient justification for a late filing.(21) So, Bail Agents should note that North Carolina courts hold that the deadline for filing documents with the court are subject to the courts' hours.(22) |
Relief From Judgment Of Forfeiture
State v. Escobar
State v. Hollars
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If the Bail Agent is only able to locate the defendant and surrender her/him to law enforcement after the 150 day period has expired, and the judgment forfeiting the bond to the State has become final, the only two avenues for relief are proving to the court, upon proper motion,(23) that either: 1) You did not receive proper notice of the forfeiture under North Carolina General Statute § 15A-544.4; or, 2) "extraordinary circumstances" exist to set aside the judgment. Please note that it is in the discretion of the trial court judge to determine what constitutes "extraordinary circumstances".(24) It is recommended that Bail Agents consult an experienced attorney to file a "Motion For Relief From Judgment Of Forfeiture".
As to the first avenue of relief: Notice of Forfeiture must be mailed to the Bail Agent, as a surety appearing on the bail bond, "not later than the 30th day after the date on which the defendant fails to appear as required and a call and fail is ordered."(25) Further, "if notice under this section is not given within the prescribed time, the forfeiture shall not become a final judgment and shall not be enforced or reported to the Department of Insurance."(26)
The other avenue for relief is a showing of an "extraordinary circumstance."(27) In determining if an extraordinary cause exists, courts consider the following factors: "1) the inconvenience and cost to the state and the courts; 2) the diligence of sureties in staying abreast of the defendant's whereabouts prior to the date of appearance and in searching for the defendant; 3) in cases where the defendant has died, the surety's diligence in obtaining information of the defendant's death; 4) the risk assumed by the sureties; and 5) the surety's status, be it private or professional."(28) Note that the Bail Agent in the Hollars case cited above (where the Bail Agent surrendered the defendant to a sheriff in Tennessee where the defendant was incarcerated) won a motion for relief from forfeiture, arguing extraordinary circumstances.(29) Also, as food for thought, the Bail Agent in the Williams case also cited above (where the 150 day deadline to file a motion to set aside was missed by mere hours) might have considered filing a motion for relief from forfeiture based on "extraordinary circumstances".
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Editor: Dave Rock, Jr. - Senior Vice-President
drockjr@1statlanticsurety.com - Cell: 919-414-3445
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"Hot Topics" For
Bail Agents
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1st Atlantic Surety Company Responsibility
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The information contained herein is not advice and should not be treated as such. You must not rely on the information in this newsletter as an alternative to legal advice from a qualified professional.
If you have any specific questions about any legal matter, you should consult an appropriately qualified professional.
The information presented in this newsletter is as timely and accurate as 1st Atlantic Surety Company can make it. However, the Company makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the contents and expressly disclaims liability for errors and omissions in the contents of this newsletter.
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Proper management of forfeitures should be a priority for all bail agents.
Between this newsletter and the February, 2014 newsletter, we have covered five of the seven reasons a Bail Agent might set aside a forfeiture under N.C. Gen. Stat 15A-544.5. In our next edition, we will discuss the final two methods of setting aside a forfeiture, both of which involve a defendant being in custody at the time of their "FTA".
We will appreciate it if you will let us know if this information is of value to you.
We will also appreciate it if you will let us know of any other issues you would like to have addressed in either this newsletter format or during one of the "Hot Topics For Bail Agents" seminars.
Address your comments to Dave Rock, Jr., Senior Vice-President, 1st Atlantic Surety Co., PO Box 110, Raleigh, NC 27602-0110.
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1.N.C.G.S. § 15A-544.3(a).
2.State v. Rodrigo, 190 N.C. App 661.
3.Id.
4.See N.C.G.S. § 15A-544(d) (1), (2).
5.See N.C.G.S. § 15A-544(b) (1), (2).
6.N.C.G.S. § 15A-544(b)(3).
7.See N.C.G.S. § 15A-540(b).
8.N.C.G.S. § 15A-540(b).
9.State v. Mathis, 349 N.C. 503, 511-512.
10.Id.
11.Id. at 507.
12.Id. at 513.
13.Id. at 514.
14.Id.
15.N.C.G.S. § 15A-540(b).
16.State v. Hollars, 176 N.C. App. 571.574.
17.Id.
18.Id.; N.C.G.S. § 15A-540(b).
19.N.C.G.S. § 15A-544.5(d) (1).
20.State v. Williams, 7 N.C. App., 2012.
21.Id.
22.Id.
23.A proper motion for Relief from final judgment of forfeiture would: (a) be timely (within 3 years of entry of final judgment of forfeiture); (b) state and provide evidence regarding which of the two avenues for relief you are arguing; (c) be filed in the office of the clerk of superior court of the county in which the final judgment was entered; and (d) be served on the district attorney for that county and on the attorney for the county board of education under G.S. 1A-1, Rule 5. See N.C.G.S. 15A-544.8(c).
24.N.C.G.S. § 15A-544.8(b)(1)-(2).
25.N.C.G.S. § 15A-544.4(e).
26.Id.
27.N.C.G.S. § 15A-544.8(b) (2).
28.State v. Escobar, 187 N.C. App. 267, 271.
29.State v. Hollars, 195 N.C. App. 786.
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Procrastination is like a credit card because it is a lot of fun until you get the bill.
Every business has an established set of procedures and the bail bond business is no exception. All Bail Agents have a general outline of their daily, weekly, and monthly activities.
Every Bail Agent should set some time during each day to review outstanding liabilities and to take the actions needed to stay on top of forfeitures.
Just as you have to spend time each day in soliciting potential clients, evaluating bonds, writing bonds, managing routine office duties, determining how to best spend ad dollars, etc., you should also spend time each day in managing forfeigures.
It is good policy to make sure bond forfeiture set asides are filed long before the final judgement date. By establishing a specific date by which all of your bond forfeitures must be filed will ensure that nothing slips through the cracks and you wind up having to pay for a forfeiture unnecessarily.
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Patrick Roberts serves as General Counsel of 1st Atlantic Surety Company. He is the founder of Roberts Law Group, PLLC. He is a graduate of Duke Universtiy School of Law and a former Assistant District Attorney in three North Carolina counties. He has successfully defended hundreds of criminal cases throughout the State of North Carolina. Benjamin Lankford is a Research Assistant at Roberts Law Group, PLLC. He is a graduate of Wake Forest School of Law and received his Bachelor's Degree from the University of North Carolina at Chapel Hill.
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