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-------- Original Message --------
| From: |
G. Arthur Joy |
| To: |
Gregory Matthews |
| CC: |
Linda Shelton, Bob, Gregory Matthews |
| Subject: |
Re: We got a problem. |
| Date: |
Thu, 23 Nov 2006 04:30:03 +0000 |
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TITLE 13
Crimes and Criminal Procedure
PART I
Crimes
CHAPTER 57. LARCENY AND EMBEZZLEMENT
Subchapter II. Embezzlement
§ 2531. Embezzlement generally
An officer, agent, bailee for hire, clerk or servant of a
banking association or an incorporated company, or a clerk, agent,
bailee for hire, officer or servant of a private person, partnership,
tradesunion, joint stock company, unincorporated association,
fraternal or benevolent association, except apprentices and other
persons under the age of sixteen years, who embezzles or fraudulently
converts to his own use, or takes or secretes with intent to
embezzle or fraudulently convert to his own use, money or other
property which comes into his possession or is under his care
by virtue of such employment, notwithstanding he may have an
interest in such money or property, shall be guilty of embezzlement
and shall be imprisoned not more than ten years or fined not
more than $500.00, or both. (Amended 1971, No. 199 (Adj. Sess.),
§ 15.)
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That's right, it is not a text but a statute, one which has
an unusual statement rarely seen in the embezzlement statutes
of the various states (in Bold type). And one which I have become
very familiar with, much to my chagrin. And one so infrequently
charged, that, yes, I am the singular citation in the Northeast
Reports, a legal research text of precedent setting cases.
It is in fact true...I was an officer and major stockholder
of Credit Management Services Corporation starting in 1978. I
believe I began as a secretary to the corporation and vice president
for operations. Beginning in 1980 the firm became embroiled in
a series of legal battles brought by clients of Legal Services
Corporation of Vermont (Legal Aide) that continued until Dec
1984. The first claims were brought in Vermont Superior court
and were defeated with rather unusual, but effective, legal tactics.
In 1981 LSC of Vt brought a seperate but far more extensive
action in US District Court accusing CMS of violating the Federal
Fair Debt Collection Practices Act, a class action case for injunctive
relief and individual hearings on the merits for damages. Injunctive
relief was not granted. The case was put on the docket for 58
seperate trials on the merits for damages.
Shortly after filing the action, at one of the first hearings,
LSC of VT offered then corporate counsel, Atty Thomas Koch, to
settle for $1500 in legal fees to LSC of Vt and a stipulated
injunction for new collection rules that exceeded the US FDCPA.
The management took the matter up and made a clear decision citing
a standard that I fully supported, THEN and NOW: Millions for
Defense, not a single farthing for tribute!!!
The President and CFO, also the other stockholders, did not
have the stomach for the litigation and had wanted to accept
the offer to settle. The other managers and I refused. The firm
was bleeding badly financially and being a big fish in a little
pond we were a constant source of news, deemed to be negative
public relations associated with the process. I agreed to buy
out the 60% I did not own and I also agreed to hold the sellers
harmless of any and all litigation. After I bought out the other
stock-holders in 1982 I was personally named a party by LSC of
VT Atty's Benjamin and Sussman to intimidate and attempt to force
a settlement by threatening personal assetts. I refused to negotiate
and ordered interrogatories and depositons of the 58 named plaintiffs
and counterclaimed one by one.
Frankly, I reveled at the opportunity to defend personally
and entered an appearance "pro se" as I was not happy with the
corporations lawyers. I had bought out the two other share-holders
so I could have control of the entire litigation process and
by being named a defendant, the insurance carrier could not over-ride
my wishes and settle to avoid years of legal fees!!!
In the fall of 1982 Atty Sue Sussman became an asst AG. and
shortly thereafter filed a civil suite by the AG. We also fought
that action and it was settled and dismissed sometime in the
Spring of 1984. In December 1984 the LSC of Vt made the very
poor legal strategic decision of simply dismissing me personally
in the hopes the insurance company would settle. We promptly
brought an action for mis-use of process and our Atty, now Sen
Vincent Illuzzi, received a settlement for $40,000 in legal fees.
Touche'!!!
Sometime during the civil litigation battles, the AG's criminal
division got into the fray and contacted clients we had ongoing
disputes with regarding receivables for sums owed to CMS or vice
versa. Several of these filed formal complaints and the AG upped
the ante and brought a criminal complaint for embezzlement against
myself, personally, in 1985. The basis was the highlighted portion
of the statute listed above, which simply means that because
we did not remit the net due to Stacey in a timely fashion and
converted the sum payable to corporate use, notwithstanding
our interest in the sum collected, I had committed embezzlement.
Legally correct!!! Even though I had not been on the payroll
since 1980 and was living in Maine at the time, therefore did
not personally benefit, except in the egotistical sense of keeping
the firm going to defeat the legal allegations, and achieve vindication.The
buck still stopped at my desk!! !
We were able to get all but one claim dismissed because they
owed us more than we owed them. In Stacey Fuel's case, Stacey
had accepted partial payments from the debtors and refused to
pay fees for service on the direct to Stacey's payments and we
did indeed withhold payment until we were properly notified of
payments and they were credited to the balance. I don't recall
if they ever verified reported payments to CMS, despite debtor
notification to us. Stacey cancelled service before the payment
arrangements were finished and CMS gave notice of intent to bill
them for the entire commission due but, unfortunately, never
did. Frankly, because we had with-held payment, we were in violation
of 13 VSA sec 2531!!!
The AG decided to take the one claim to trial in the sum $1152.15
which we fought it all the way to the Vt Supreme Court (Decision
was in 1988) and the personal conviction was affirmed on the
basis that the Vt Embezzlement statute allows for a a charge
against an individual rather than the corporation and could do
so regardless of the charged person's interest in the balance
due the offended party.
In any event, the sentence was easy enough: I was ordered
to pay the account and did so. Regardless of the technicality
the entire legal issue was clearly my responsibility. I did not,
nor would I try, to blame another. The facts were the facts and
the Vt Supreme Court affirmed the fact that it was illegal to
do what was done. Therefore the buck stopped at my desk and I
took responsibility.
The harsh reality is, at the beginning of 1982 I controlled
five companies, National Businessmens Credit Association, the
National Business Trust, Green Mountain Credit Bureau, Capital
Funding Corporation, and acquired the balance of CMS mid year.
I put it all on the line for what I felt were irreversible principals
that I and my management would not compromise on. By 1985 I had
to sell or close every single business and had to start all over
again. And I did!!! Some would argue that discretion is the greater
part of valor and we should have settled in 1982 and we would
be here today, handcuffed and cowering to LSC of Vt...an unacceptable
option. I believe in Life, Liberty and the pursuit of Happiness
and in the absolute right of conscience. I will not live with
the alternative without a fight. SO, the question frequently
comes up...would you do it all again? Well, I would certainly
handle invoicing differently and would be dis-inclined to own
a collection agency today, but other than that, given the same
circumstances and given hindsight, YES, I WOULD PUT IT ALL ON
THE LINE AGAIN, UNQUESTIONABLY, AND BE WILLING TO LOOSE IT ALL
AGAIN, UNCONDITIONALLY.
I will forever stand for principal at any cost, and believe
me when I say I have paid dearly. From that experience I have
only my wife and family, praise the Lord, and many, many friends
and business associates that we have helped to launch careers
or beat back challenges to their lives and businesses. White
Knight or greivous ogre, I would suppose it would depend on which
side of the battles you were on!!!
Others would argue that we won the battles but lost the war...
perhaps, but I would rather fight for principals and the right
of conscience and loose than live with the alternative. If that
disqualifies me from offering my experience and perspective to
help victims of an unfair system in the sight of some, so be
it, but I will always be available to help slay dragons and I
will NEVER GIVE UP!!!
In summary, I have felt the sting of Justice and the comfort
of Mercy. Justice makes one more human and understand the issue
of accountability. It also makes you look hard at yourself and
realize just how easy it is to be a "fallible human being" and
how hard it is to earn the Mercy of humanity and how little we
deserve the mercy of our Lord Jesus Christ. And in the end, I
know what it is to be willing to give up everything we have worked
so hard for, to stand for principals, albeit human principals,
and how much more important it is to stand for the principals
of righteousness within the Church of God. May every "fallible
human being" learn the same lesson, is my prayer as we move forward
to clean up any stench in the nostrils of the Lord!!!
Gailon Arthur Joy
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