What's the matter with kids these days? (Part II)

Q. In the state of South Carolina, can a person be expunged for a felony? This involves 2 people one of which used a play gun to rob a cabbie of $8. My friend was charged with aggravated assault...he didn't use the play gun, just there distracting the cabbie so the other guy could rob him...public defender told him to plead guilty....i am trying to help him get this thing expunged...help.


A. Let me warn you up front that this whole question just ticks me off. I’ll explain why at the end, but let me get some preliminaries out of the way.

First off, this is a case of a little information being a dangerous thing. It appears that you have a misunderstanding of the word “expunged.” To “expunge” something, you obliterate it, erase it, or annihilate it. Generally, the law takes a dim view on expunging people, except in a few cases. (I know, I know. I’m sounding just a little snarky. I warned you, this question ticks me off. But I’ll try to be good.)

Anyway, in the law, the term “expunge” is used in connection with a criminal conviction. In many states, if you have one -- and only one -- criminal conviction on your record, you can petition the court to have that conviction expunged from your record, which means that it is erased. If you’ve had a conviction “expunged,” in most cases the law views you as having never been convicted of a crime. (However, the fact of your arrest may not be expunged, even though the conviction is. The laws of each state govern.)

Expungement wouldn’t apply in your friend’s situation because the case is still pending. It sounds like your friend is trying to figure out how to have the charges dismissed. A dismissal means that the state has decided to drop the case and will not prosecute for the crime. Unless the state has no witnesses, or a particularly bad case, or someone else confesses, it’s not very likely that the state will agree to dismiss against your friend.

Having both prosecuted and defended criminal cases, I can honestly tell you that your friend has some serious problems. I’m guessing the victim probably identified your friend. It may also be that his accomplice (the one holding the “play gun”) flipped on him in order to receive a lighter sentence. The quality of the state’s evidence against your friend is probably why the public defender is recommending a plea.

Now, I know you’re wondering why this question bothers me so much. It’s the way you so off-handedly refer to the “play gun” and the eight dollars that your friend and his accomplice stole from their victim as if the fact that the gun was “only” a toy, and that they “only” got eight dollars from the robbery somehow mitigates what they did. Are you kidding me? Your friend may have known it was a “play gun,” but I’m guessing he didn’t clue the victim into that fact.

Do you think the cabby felt good about things as this robbery went down? Do you think he was saying, “Oh, ho ho! These kids and their funny pranks -- look at that play gun! I’ll just give him the last eight dollars in my pocket as a way of playing along.” Or do you think the cabby’s life might have been flashing before his eyes as he wondered whether he’d ever see his wife again? Do you think that maybe he was wishing he had more than eight dollars in his pocket to give the two thugs who’d hopped into his cab, because he was afraid that eight dollars wasn’t enough to satisfy them and they’d blow him away just for the hell of it?

Oh, I’m sure your friend is regretful now -- now that he’s been caught. But let’s not minimize what happened here. He was involved in a robbery in which the cabby was led to believe that he was in fear for his life by the threat of the use of a firearm against him. You don’t actually have to hurt the guy for an aggravated assault to occur. In many states, if a firearm is involved -- even a “play gun” -- all you have to do is put the victim in fear for his life, or help someone else do that.

Here’s all you have to do to understand why your attitude bothers me so much: Imagine walking by yourself through the parking garage at your local mall at 9:30 at night when two strangers jump out from behind a pillar. No one else is around, and one guy is pointing something at you that sure as hell looks like a gun. The other one is "distracting" you by demanding all of the money in your wallet or they’ll shoot you dead. Your heart starts pounding like a drum in your chest, your mouth goes dry and your palms get all sweaty. Now, answer this: Are you going to take the time to find out if they’re holding a “play gun,” or are you going to pull out your wallet and empty it?

That’s what I thought.

What's the matter with kids these days?

Q. I moved to Florida from Ohio in 1991. The winter of [19]92 my daughter called me asking for help as the furnace was broken and my grandkids were cold. I gave her my Sears Credit card and approved the purchase of a new one provided she missed no payments. I kept asking for my card to be returne[d] and finally in [19]96 I did get it back in very bad condition.

[In] 6/98, I applied for a small loan at my bank but was told I needed to come in to talk. [T]his has never happened before as I could just call and go in to sign for the [amount] I needed. This is when I discovered that I was being sued for almost $10,000 by Sears in Ohio.

They asked me if I knew who D[xxxx] was so I was sure that she had done something very bad. I called her to ask what was going on but was talked to like a dog. It turnes out that she went to Sears, using my identity and [credit card number], stating that she had "LOST" her card. The[y] approved two cards be reissued. One in her name and one in her husband’s name BUT with my account [number and] her address. I had no knowledge of any of this. She told me that the payments for the furnace were being met ok, and I never heard otherwise.

I called Sears’ law office to see what I should do and was told that she had already been served with legal charges having my name on them and that she was ignoring them. I then called a friend of mine in Ohio (a police officer ) and asked for the papers to file fraud charges on her. He sent them to me and I promptly sent them back. He later called me asking "if I was really ready to do that to D[xxxx]." I thought about this for a long time and decided that I didn't have the hate in me to have her jailed.

Somehow she was able to obtain a lawyer to defend her and she went to court, still signing my name as if she were me. I have all the court record papers to prove this also. She fully admitted all the blame and somehow was able to make a "satisfaction" payment arrangement.

My credit is now ruined after having never been late for anything in my entire 52 years on this earth. I have no way to clear myself from this bad debt on my record with the reporting agencys other than filing a civil suit against her putting the blame where it belongs. I[s] this true and how do I go about it[?] I also want to hold Sears responsible for allowing this to happen. I have all the charge slips that she and her husband occured all those years of living the good life on me. On some of them she signed her name, as he did also, and the rest of them, she (they ) signed my name.

I have tried to talk to other lawyers but I can't afford the outragious pay they ask for. It almost seems like they are afraid of Sears. I don't know where to turn to at this point and I am hopeful that I can get some advi[c]e as to what to do this way. I have los[t] hours and days away from work during all this. It's also putting a very bad strain on my marriage as he is not her father and wanted me to file the charges in the first place. I understand his point of view perfectly. but as you probably know, a child is always in your heart, even though we are not in theirs. I really do need help and if you would head me in the right direction I would be so very grateful.

A. You do have a mess, and that mess is compounded by the fact that your daughter is the cause of it. As you so aptly put, “A child is always in your heart, even though we are not in theirs.” Most parents cannot even imagine doing anything that would harm their child, or cause them discomfort or pain. As the parent of two, I completely understand the motivations that prompted you to lend her your Sears card and then not worry about getting it back for four years. We all know that, if you’d lent the card to your neighbor for an emergency purchase, you’d have been knocking on the door the next month and, if it wasn’t returned, you’d have been closing the account for good if you didn’t get it back in two. But having your daughter involved changes everything.

But, you didn’t ask for my philosophizing. You asked what to do. Essentially, you have been the victim of identity theft. Someone used your card and your account number to secure credit and buy things for themselves without your permission. Just because it was your daughter who did it doesn’t change the fact that your identity was stolen so that someone else could gain from your good credit.

There are several things that you can do. Let me warn you, though, that none of them is guaranteed to remedy your situation or cure any problems you have with your credit history. At most, the things I’ll suggest can help alleviate problems you will have in the future regarding your credit. Unfortunately, the likelihood is that you will continue to have problems down the road that will, eventually, diminish with time.

First, if you haven’t already done so, you should formally notify the credit card company -- Sears in this case -- that you’ve been a victim of identity theft. You should send them a letter, by certified mail, identifying yourself and your account number and briefly explain to them that your daughter used your credit card account to obtain cards for herself and her husband without your permission and then incurred charges that adversely impacted your credit history. (Sears probably already knows this based on the litigtaion you mentioned and the settlement your daughter reached.) Send the letter anyway, because it creates the beginning of a paper trail that will help you explain any problems in your credit history that you may face down the road. (You can whip out a copy of this letter in the future to establish that you’ve taken measures to repair your credit.) In your letter, you can ask Sears to close that account and issue you a new account number and card. You may also be able to have Sears list you as the only authorized user on the account and to require identification verification for all future charges on that account.

In addition, you are entitled to add a statement to your credit report with each credit reporting agency. There are three primary agencies. You can obtain information about them at www.mycreditreport.com. You should notify each agency that you will be adding a statement to your credit report about the fact that you’ve been the victim of identity theft, and then prepare a brief statement, 50 words or less, detailing the fact that you were the victim of identity theft, that the perpetrator was caught, that you did not incur the charges that were in dispute, and that you have closed the account that was the subject of the identity theft.

Finally, you can take steps to rebuild your credit. Take a small loan out from your bank or credit union for the shortest period they allow -- something like a $1000 loan for one year. Then, make monthly payments, but pay it off early -- in nine or ten months. Pay off any credit card balances you might have outstanding or, if you can’t pay them off, make more than the minimum payments for several months to reduce the principal. If you have a low interest credit card with a zero balance, charge 25 or 50 bucks a month for several months, and pay it off in full each month. All of this will help re-establish the credit worthiness that shows up in the reporting companies’ databases by showing a continuing ability to pay.

As for going after Sears for “letting this happen,” you would have a couple of problems making a case against them. First of all, it is clear that you gave your daughter the authority to use your card to make the initial furnace purchase back in 1992. Sears will take the position that you gave her authority to make other charges as well, and there is no way to prove that you didn’t. Second, even if you hadn’t actually given her authority to use the card, presumably you received statements at your home before she changed the address of the account to her home address. Therefore, Sears can argue that you were aware of the charges on the account from 1992 to 1996 and should have said something then. And, if you weren’t receiving statements from Sears because your daughter changed the address, Sears can argue that you should have been aware that you were not receiving statements and thus should have contacted Sears to find out what was going on. In any of these cases, Sears can make the argument that it conducted itself in good faith and simply did what it was supposed to do, which was to allow someone with the apparent authority to charge on your account to make charges on your account.

This is why you are having a tough time finding a lawyer to take the case. There really isn’t a case to take. If you came into my office, I’d tell you everything I just spelled out above, and then let you know that there’s really no legal claim you have on these facts (unless you want to go after your daughter, which you already said you don’t want to do.) Some lawyers don’t do what I do. Instead, some lawyers will quote you a ridiculous fee for a case they really don’t want to take, but if you’re willing to pay big bucks, there willing to spend a few hours chasing a loser case for you, provided you pay them up front.

One last thing. As I mentioned, and as you already know, you could file criminal charges against your daughter for fraud (and, in some states, there are new identity theft laws are on the books). You could also sue your daughter in civil court for any financial loses she’s caused you. We also both know that you’re not going to do that because it’s your daughter. I’m just throwing that out there now because, when the time comes, your daughter will ask you for help again in the future. When that happens, you can point to the fact that you didn’t sue her and didn’t file charges against her as evidence of the amount of help you’ve already given her. She is your daughter, but at some point, you are allowed to say no.

She's Been Too Darn Healthy

Q. My girlfriend is leaving a job for another. Does the old employer have to pay her for her accumulated sick time??


A. The short answer is: generally, no. Of course, that’s based on the assumption that your girlfriend is what the law considers an “at-will” employee. “At will” simply means that she works for her employer at the will of the employer, until the employer no longer wants her. However, if your girlfriend is a civil servant, or under contract, or a member of a union, or part of a collective bargaining unit that may have an agreement that addresses this question, she may be entitled to pay for accumulated sick time. (It’s these latter types of employment that keep labor lawyers busy.) For instance, if she’s a teacher and a member of the teacher’s union, the union contract most likely covers this scenario. On the other hand, if your girlfriend is a cashier for Joe’s Bar and Grill and is not unionized, she would lose her accumulated sick time if she leaves Joe’s and would not be entitled to be compensated for it. (While it would be nice for Joe’s to offer to pay her for the time she lost, it would not be obligated to do so.)

The Kind of Question I Just Can't Answer

Q. My dad died in 1993. My mom of course was his heir and the house they had and bank account went to her. Now 7 years later we find out that from a class action law suit he received a judgement of 69,000.00. There was never an estate opened before but now we need to appoint a personal representative and open an estate. When I went to the court house to get a letter of authority the clerk told me she didn't know if I need an unsupervised personal representative form or a supervised personal representative form . Can you tell me which form I need to fill out? I would like to do this today as my daughter has the day off and is taking me and my mom to the court house.

A. I’m throwing this question up on the board to illustrate the kind of question I can’t answer. (This is why I have all of the disclaimers and warnings all over the place.)

Believe me, it’s not that I don’t want to help you; I love throwing my ideas out there if you think it’ll help you. However, some questions are so fact specific and so time sensitive that it makes no sense to send the question to me. Here’s why this question breaks two of the guidelines I have to abide by.

First, as I mention in several places -- if you need an answer “today,” you shouldn’t be throwing questions my way. I’ve been receiving questions for almost six years now, and, as you might expect, I have not been able to answer all of them for a variety of reasons -- sheer volume of question, demands on my time outside of the website, or even the nature of the question. I answer those I can, when I can, but I cannot even speculate as to when, or even if, I’ll get to your particular question. The reality is that the demands of my “real” job and my family limit the time I can spend with you folks. If you need an answer today (or tomorrow, or even this month), you should consult with a local attorney or your local bar association.

Second, I’m answering general legal questions about general legal concepts. A fact-specific question, such as, “Do I need the ‘unsupervised personal representative form’ or a ‘supervised personal representative form’” is a question that I have no way of answering, especially if I don’t even know what state you’re writing from.

Don’t get me wrong. I love to hear from you and I want to help you if I can. But if you wonder why you haven’t received a response, it may be that I simply can’t answer the question you’ve asked.