U.S. v. Humberto Laura-Cota, 262 F. Supp.2d 1118 (S.D. Cal. 2003) set aside forfeiture of the bond because the Government increased the surety's risk by deporting the defendant.

In United States v. King, 349 F.3d 964 (7th Cir. 2003) the trial court, over the government's objection, permitted the defendant to travel to Nigeria despite the fact that he had shown what the court calls a propensity for flight. However, he in fact returned to New York and then skipped. The Seventh Circuit's decision contains excellent language on exoneration of the surety by an unconsented to increase in the risk assumed, including "That a material change in risk can discharge the surety's obligation is a staple of suretyship law; the principle is not limited to criminal cases." The court holds, however, that the increased risk from letting the defendant travel to Nigeria did not discharge the surety because the defendant in fact returned to the United States before fleeing. In effect, the court looks at whether the surety was actually harmed by the action which increased its risk. If it was not actually harmed, it is not discharged. The Seventh Circuit, however, clearly states that if the surety had been harmed, i.e., Mr. King had stayed in Nigeria, the surety would have been discharged.

United States v. Garza, 2005 WL 673325 (5th Cir. March 23, 2005) held that bail agents did not have standing to appeal denial of their motion to remit the bond forfeiture. The agents did not present any evidence that they paid the forfeiture or had a contractual obligation to indemnify the surety company. The court specifically found that the corporate surety paid the forfeiture and that the motion was filed allegedly in the capacity of sureties not in a representative capacity on behalf of the corporate surety. [Not published].

In United States v. Zuluaga-Berrio, 377 F.Supp.2d 611 (W.D. Tex. 2005) the defendant fled to Mexico but was apprehended by the Mexican authorities and retrieved by the U.S. Marshal's Service. The Government incurred some expense in bring him back from Mexico. The surety moved for remission of the bond forfeiture. The court held that forfeiture was mandatory when the defendant failed to appear but that complete or partial remission of the forfeiture was within the discretion of the court under Federal Rule of Criminal Procedure 46(f). The court granted a partial remission because the defendant was in custody but was not surrendered by the surety or bail agent. For reasons not explained, the surety had paid only $7,600 of the $25,000 penal sum, and the court ordered remission of forfeiture of the unpaid balance. This would seem to punish the surety for making the partial payment, or conversely to reward the surety for not paying the entire forfeiture. It would seem to have made more sense to base the amount forfeited on the Government's expense in obtaining custody or the delay involved, but since the decision does not explain why only $7,600 was paid, there may have been a connection between the amount and the Government's expense or the amount and some other rationale for computing the partial remission.

In United States v. Rojas, 2005 WL 3006078 (11th Cir. November 10, 2005) the defendant failed to appear, the bond was forfeited, and the bail agent started foreclosure proceedings against the residence of the indemnitor. The indemnitor took out a second mortgage and paid the amount of the bond to the agent. The defendant was eventually recovered, and the indemnitor asked the trial court to vacate the forfeiture and order the agent to return her money. The trial court ordered return of the money, less the agent's expenses in recovering the defendant, but the Court of Appeals held that there was no federal jurisdiction over the contractual dispute between the bail agent and the indemnitor.

In United States v. Varner, 2006 WL 482398 (W.D.Va. March 1, 2006) the conditions of the defendant’s release included not using drugs, drug treatment and home detention. He violated those conditions but never failed to appear. The court revoked his bond, forfeited the bail and incarcerated the defendant. The surety, the defendant’s sister who had pledged real property, moved for reconsideration of the forfeiture. The court held that the surety was bound only by the written bail agreement, and it was conditioned only on appearance. The key factor was that an outdated bail bond form was used. The 1998 form only required appearance, unlike the December 2003 form that would have required both appearance and compliance with the other conditions of release. The court granted the motion for reconsideration and exonerated the bond.

In re Lopes, 2006 WL 695748 (Bankr. S.D.N.Y. March 21, 2006) rejected the professional bail bond surety's objections to the dischargeability of its claim against the debtor. The debtor was an indemnitor on a bail bond written for her husband. The husband failed to appear, and the bond agency paid the forfeiture. The indemnitor then filed for bankruptcy. The bond agency argued that the debt should be non-dischargable pursuant to 11 U.S.C. §523(a)(7) as a fine, penalty or forfeiture payable to or for the benefit of a governmental unit that is not compensation for an actual pecuniary loss. The court held that the debt was a simple contractual obligation owed to a private party and was to compensate the bond agency for its pecuniary loss in paying the forfeiture. The court recognized that if the debtor had been the principal on the bond, and therefore directly obligated to the government, the bond agency could have been subrogated to the government's rights and argued that the money owed on the bond was a penalty and not compensation for a pecuniary loss.

In re Davis, 2006 WL 895086 (Bankr.E.D.Tex. March 16, 2006) held that neither the Eleventh Amendment nor §523(7) of the Bankruptcy Code barred discharge of the debtor bail bondsman's debt to the State. The court reasoned that the State's claim was based on a contractual obligation of the surety, not on her wrongdoing, and so forfeiture of the bond as to her was not a "fine, penalty or forfeiture" within the meaning of §523(7). The court's reasoning may have led to the opposite result if the debtor had been the principal on the bond.

In Safety National Casualty Co. v. United States Department of Homeland Security, 2006 WL 1007495 (S.D.Tex. April 18, 2006) the surety sought to compel the Department of Homeland Security (DHS) to recognize defenses to demands on certain immigrant delivery bonds and to produce documents in compliance with the Freedom of Information Act. During the course of the case, the Court enjoined DHS from refusing further bonds from the surety, and the parties agreed to an Alternative Dispute Resolution agreement. In spite of the ADR agreement, DHS refused to produce certain documents. The Court rejected "FOIA" and "law enforcement" privileges asserted by DHS and ordered it to produce all documents in 50 files pursuant to the ADR agreement except for ones subject to attorney client, work product or informer's privileges.

In United States v. Mena, 2006 WL 1294623 (S.D.N.Y. May 10, 2006) the defendant was released on a personal recognizance bond co-signed by his wife and two others. The defendant did not appear for sentencing and is a fugitive. The wife moved to set aside or reduce the amount of the bond. The court noted that hardship on the surety was not a grounds to reduce the bond and denied her motion.

United States v. Billini, 2006 WL 1586553 (S.D.N.Y. June 8, 2006) held that an individual who signed a bond as surety for the defendant was not entitled to any relief from the judgment of forfeiture. The defendant fled and was captured five years later. The surety did not help in locating the defendant. The court reviewed six factors to be considered and found that none of them favored relief other than the fact that the surety was a friend of the defendant not a professional surety.

In re United States Department of Homeland Security, 459 F.3d 565 (5th Cir. August 2, 2006) reviewed a discovery order of the U.S. District Court, see 2006 WL 1007495, in a case involving immigration bond forfeitures. The Court held that Fifth Circuit law recognizes a “law enforcement privilege” but that it is limited to on-going criminal investigations and does not apply to closed investigations, civil matters or people merely suspected of violations. The Court remanded the case to the District Court to conduct an in camera inspection of the disputed documents in light of the Court’s delineation of the privilege.

Zamora-Garcia v. Moore, 2006 WL 2380919 (S.D.Tex. August 16, 2006) is a continuing case involving Constitutional challenges to the Department of Homeland Security’s procedures for release of aliens while their immigration cases are under consideration. The plaintiffs assert, among other things, due process and equal protection violations because DHS does not recognize address changes and treats cash deposits differently than surety bonds to the disadvantage of the obligors making the cash deposits. The court denied the federal defendants’ motions to dismiss these particular claims. Zamora-Garcia v. Moore, 2006 WL 2663802 (S.D.Tex. September 15, 2006) is another decision in a continuing case involving challenges to the Department of Homeland Security’s procedures for release of aliens while their immigration cases are under consideration. The court denied motions to dismiss filed by two sureties. The court held that it had pendent jurisdiction over the state law claims against the sureties and that the factual allegations were sufficient to support the various causes of action in the complaint including breach of contract, fraud and misrepresentation, and false imprisonment. The essence of the suit as to the sureties seemed to be that the sureties had a contractual obligation to tell the principal and indemnitors when there was a demand on the bond and failed to do so.

United States v. Urquiza, 2006 WL 2691074 (E.D.Wis. September 19, 2006) ordered return of a $30,000 cash bond even though the defendant failed to appear and was a fugitive in Mexico. When the defendant, an illegal alien, was arrested, ICE lodged a detainer against him. After the cash bond was posted, allegedly by the defendant’s relatives, the Government deported him to Mexico. The Court held that by deporting the defendant the Government made it impossible for him to appear and thus the bond should not be forfeited. In the alternative, the court thought that even if forfeiture was required, the forfeiture should be set aside in the interests of justice pursuant to Rule 46(f)(2). The court mentions, but does not really address, the Government’s argument that there were procedures by which the defendant could have sought to re-enter the United States to attend his trial.

In United States v. Billini, 2006 WL 3457834 (S.D.N.Y. November 22, 2006) the Court refused to reconsider its decision denying relief from bond forfeiture reported at 2006 WL 1586553 (S.D.N.Y. June 8, 2006).

Corrales v. Sanchez (In re Sanchez), 365 B.R. 414 (Bankr. S.D.N.Y. 2007) held that the bankrupt indemnitor’s debt to the surety was not for a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit” within the meaning of §523(a)(7) of the Bankruptcy Code. The surety sought to prevent discharge of the debt pursuant to §523(a)(7). The court noted that the indemnitor was not a party to the bond and was not indebted to the state. The debt was a purely contractual obligation owed to the surety and so dischargeable. Unfortunately, the court also discussed equitable subrogation and suggested that even if the debt had been owed to the state, a surety subrogated to the state’s position could not have asserted the dischargeability objection.

In United States v. Hoffman, 2007 WL 1052435 (S.D.N.Y. April 5, 2007) a defendant surrendered and was serving his sentence. He filed a motion for exoneration of his personal recognizance bond secured by a real property mortgage. His former attorney opposed the motion because the defendant owed him attorneys fees. The attorney argued that he was an officer of the court and the court should not exonerate the bond until the fees were paid. The court held that the purpose of the bond was to secure the defendant’s appearance and it was no longer required for that purpose. The court entered an order to exonerate the bond.

In United States v. LaJocies, 2007 WL 869692 (E.D.Cal. March 21, 2007) individuals posted bonds to assure the defendant’s compliance with the terms of his release. He violated those terms by using methamphetamines, and the bonds were forfeited. The sureties sought remission of the forfeitures. The court exercised its discretion to remit a part of each forfeiture.

In State v. Soileau (In re Soileau), 488 F.3d 302 (5th Cir. 2007) a bail bondswoman filed for bankruptcy to discharge $650,897.71 of unpaid forfeitures she owed the State. The State moved to dismiss the case on the ground that the State’s immunity under the Eleventh Amendment to the Constitution prevented the Bankruptcy Court from adjudicating the debt owed the State without the State’s consent. The Court held that the Bankruptcy Court had in rem jurisdiction to adjudicate the discharge of debts, and the states consented to that jurisdiction by ratifying the Constitution with its Bankruptcy Clause. The most interesting part of the decision, though, was a concurring opinion by Chief Judge Jones seeking to have the entire Fifth Circuit reconsider en banc its 2001 decision in another case that a bail bond forfeiture, as to the surety, was a dischargeable debt. The State, having lost that issue in 2001, did not argue it and instead relied on the Eleventh Amendment argument. Judge Jones, however, thought the 2001 decision was wrong and the debt should be non-dischargeable as a fine penalty or forfeiture owed the State, and in her concurring opinion she urged the entire court to reconsider that issue. In Gonzales & Gonzales Bonds and Insurance Agency, Inc. v. Department of Homeland Security, 490 F.3d 940 (Fed.Cir. 2007) the agent and surety on almost 200 immigration bonds tried to obtain a judicial determination of their dispute with the Government over what, if anything, was owed. The agent and surety sued in U.S. District Court under the Administrative Procedures Act, which waives sovereign immunity for actions not seeking money damages. The court dismissed the case. The agent and surety filed an amended compliant alleging jurisdiction under the “Little Tucker Act” which waives sovereign immunity for suits founded upon a contract or regulation of the United States seeking money damages under $10,000. The Government claimed that more than $10,000 was owed on some of the bonds and the case was transferred to the Court of Federal Claims which has exclusive Tucker Act jurisdiction for such suits over $10,000. The agent and surety appealed the transfer. The Government then argued that the suit was not for money damages after all because the plaintiffs were trying to avoid paying the United States instead of trying to get money back from the United States. The Court of Appeals for the Federal Circuit agreed, vacated the transfer order and directed the U.S. District Court to dismiss the complaint for lack of jurisdiction.

United States v. Eslava-Rodriguez, 2007 WL 2412832 (S.D.Fla. July 23, 2007) ordered the defendant’s 10% cash appearance bond forfeited to the United States. The money was deposited with the clerk of court in 1991, and the defendant was sentenced in 1992 but remained free because he was cooperating with the Government in an investigation. He did not appear in 1992 to serve his sentence and has not been seen since. His attorney claimed to be assignee of the cash bond and sought its return. Instead, the court ordered the bond forfeited to the United States since the defendant unquestionably failed to appear and so breached the condition of the bond. There is no mention in the decision of any statute of limitations or argument over whether the Government could wait 15 years after the breach to seek forfeiture.

Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 2007 WL 2737939 (Bankr. N.D.Okla. September 12, 2007) and Affordable Bail Bonds, Inc. v. Thompson (In re Thompson), 2007 WL 2738171 (Bankr. W.D.Okla. September 12, 2007) held that the bail bondsman’s claims against indemnitors were dischargeable in bankruptcy. The bondsman paid the forfeitures, and the indemnitors filed for bankruptcy. The bondsman objected to discharge of the indemnitors’ obligations to the bondsman. In each case, the indemnitors were not principals on the bonds and had no obligation themselves to the State. The bondsman objected to discharge of the debt pursuant to §523(a)(7) of the Bankruptcy Code which exempts from discharge a debt that is “a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.”

The court noted that the bondsman could assert her own contract rights and was subrogated to the rights of the State. The indemnitors, however, had no obligation to the State, and their contractual obligation to the bondsman was a normal commercial contract to protect the bondsman from pecuniary loss not a fine, penalty or forfeiture owed to the State.

In the Thompson decision the court also discussed the discharge of debts owed by the bond principal and surety, although those issues were not part of the case. The court thought that if the bond principal filed for bankruptcy, its obligation as principal on the bond would fit within §523(a)(7) and would not be dischargeable. The court recognized a conflict in federal court of appeals decisions if a professional bondsman filed for bankruptcy. The Third Circuit would not permit discharge while the Fourth and Fifth would. If the surety were not a professional, such as a relative, he or she would more likely be denied a discharge.

In re Sandoval, 2007 WL 2916522 (Bankr. N.D.Okla. October 5, 2007) certified for direct appeal to the Court of Appeals for the Tenth Circuit the Bankruptcy Court’s Order of September 12, 2007, holding that the bankrupt indemnitor’s obligations to the bail bondsman were not exempted from discharge as a fine, penalty or forfeiture owed to the state. See, Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 2007 WL 2737939 (Bankr. N.D.Okla. September 12, 2007).

In United States v. Stathakis, 2007 WL 3124703 (E.D.N.Y. October 24, 2007) the defendant posted bail of $5 million secured in part by real property belonging to a third party. The Government alleged that the defendant violated the conditions of his bond by contacting a potential witness and sought to forfeit the bond. The bond conditions included that the defendant not violate any laws, and intimidating a witness would be a violation, but it was not clear that contacting a witness would be a violation. The court refused to forfeit the bond but at the hearing clearly and explicitly warned the defendant that it was now a condition of his release that he not contact any potential witness. The Government alleged that the defendant telephoned another witness, and the Government again sought to forfeit the bond. The third party whose property secured the bond opposed the motion. He argued that he understood the bond to guaranty only appearance, and at no time did the defendant fail to appear.

The court noted that the Bail Reform Act and Rule 46(f) permit conditions other than appearance and that the bond form itself includes additional conditions. The court nevertheless denied the Government’s motion and discharged the third party because the addition of a new condition (not even to contact witnesses) after the bond was filed materially increased the surety’s risk without his consent. Although a family member residing with the defendant can be found to have knowledge of such a change, here the third party guarantor was not a relative and did not reside with the defendant. United States v. Lunn, 519 F.Supp.2d 145 (D.Me. 2007) forfeited the defendant’s cash bond after he fled and had not been heard from for two years. Initially, his bankruptcy trustee sought to claim the cash, but after the bankruptcy trustee withdrew his objection the court found that there was no reason to delay and granted the Government’s motion for forfeiture.

Two Jinn, Inc. v. Lopez (In re Lopez), 2007 WL 4570072 (Bankr. D. Idaho December 24, 2007) held that discharge of an indemnitor’s obligation to the surety on a bail bond was not barred by Bankruptcy Code §523(a)(7), which prevents the discharge of fines, penalties or forfeitures payable to or for the benefit of a governmental unit. The court noted that other recent decisions established that the defendant’s obligation to the Government would not be dischargeable. There is a split of authority over whether the surety’s obligation to the Government would be dischargeable. The indemnitor’s contractual obligation to indemnify the surety for its pecuniary loss, however, is not owed to the Government and is not a fine or penalty. The court dismissed the surety’s complaint.

In United States v. Ahmed, 2008 WL 281968 (S.D.N.Y. January 28, 2008) the defendant pled guilty in 1993 and was sentenced but fled to Ghana before surrendering to begin her sentence. The Government moved to forfeit the bond secured by three personal sureties. The sureties did not appear and the bond was forfeited in1995. The Government, however, did nothing to collect on the forfeiture until 2007. At that time one of the sureties moved to set aside the order of forfeiture. The court rejected her claims that she did not receive notice of the forfeiture hearing and that her inability to pay (an alleged salary of $45,000 and credit cards debts of $55,000) justified reducing her debt. The court set aside the accrued interest and penalties for non-payment in light of the Government’s 12 year delay in seeking to collect but affirmed forfeiture of the entire bond amount.

In United States v. Griffin, 2008 WL 766507 (S.D.Ga. March 21, 2008) the court ordered a bond and a 10% cash deposit. The defendant’s mother deposited the cash. After the defendant fled, the Government moved for forfeiture of the bail. The defendant’s mother sought return of the cash deposit. The court found that the mother’s ill health and alleged lack of knowledge of her son’s whereabouts were not extraordinary circumstances justifying relief from forfeiture of the bail. The court granted the Government’s motion, entered judgment on the bond, and ordered that the clerk transfer the cash deposit to the Treasury.

In United States v. Famiglietti, 548 F.Supp.2d 398 (S.D.Tex. 2008) the sureties were the wife and adult children of the defendant. After the defendant fled the country, the Government moved to forfeit the bond. The court extensively discussed whether any part of the bond should be remitted and the importance to the functioning the federal Bail Reform Act that friends and family members of the defendant understand that the amount of the bond is “real” and will be forfeited. The court examined eight factors, refused to give any weight to the comparatively poor financial condition of the sureties, and held that no part of the forfeiture should be remitted.

Affordable Bail Bonds, Inc. v. Sandoval (In re Sandoval), 541 F.3d 997 (10th Cir. 2008) held that the indemnitor’s debt to the bondsman was not exempted from discharge as a “fine, penalty or forfeiture payable to and for the benefit of a governmental unit.” The bondsman paid the forfeiture to the State and sued the indemnitor. The indemnitor filed for bankruptcy and the bondsman objected to discharge of her claim. The Court reasoned that the debtor’s obligation was a matter of private contract and owed to the bondsman not to the State. Even if the bondsman was subrogated to the rights of the State, the State had no claim against the indemnitor. The Court was careful to say that it was not deciding the issue of whether the defendant’s or the bondsman’s debt to the State on the bond could be discharged.

United States v. Poe, 2009 WL 514069 (10th Cir March 3, 2009) rejected the defendant’s contention that evidence should have been suppressed because two bounty hunters discovered it in recovering him and called the police. The Court held that the bounty hunters were not state actors for Fourth Amendment purposes, but in doing so considered cases under §1983 and effectively said that the tests were the same. This case would be precedent to support an argument that bounty hunters who were acting for their own pecuniary interest and not at the instigation of the police would not be state actors for purposes of a civil suit.

In Ex parte Singleton, 2004 WL 2676659 (Ala. Crim. App. November 24, 2004) the trial court set a $150,000 “cash only” bond. The defendant appealed arguing that under the Alabama Constitution he had a right to bail with “sufficient sureties” and that the cash only bail was excessive and in violation of the sufficient sureties clause (Ala. Const. Art. I, §16). The Court reviewed the derivation of the clause and decisions from other states with similar clauses, and held that the cash only bail was constitutional and that the amount was not excessive given the facts of the case. The Court reasoned that “sufficient” was a limitation on a defendant’s access to sureties and gave discretion to the judicial officer setting bail. In Union Planters Bank, N.A. v. People of the State of New York, 2006 WL 146598 (11th Cir. January 20, 2006) a property bond was posted in New York secured by property in Alabama. After an affidavit of the bond was filed in the land records in Alabama, the property was refinanced and the amount owed to the bank increased. The property was sold in foreclosure, and the issue was how the proceeds should be divided. The Eleventh Circuit certified three questions to the Alabama Supreme Court relating to the priority of liens between the bank and the State and particularly whether the bond became a lien when the affidavit was recorded or only when a forfeiture was declared.

In Re Bond Forfeiture in Pima County, 93 P.3d 1084 (Ariz. App. 2004) affirmed the trial court’s judgment forfeiting the entire bond even though the defendant had been deported to Mexico. The court noted that: (1) the surety assumes the risk the defendant will not appear; (2) the surety could easily have ascertained that there was an INS “hold” on the defendant who, in fact, gave his only address as General Delivery, Nogales, Sonora, Mexico; (3) the surety did nothing to try to prevent the defendant’s deportation, locate him in Mexico or secure his return for trial; and (4) there was no evidence the defendant attempted to return for trial.

Fragoso v. Fell, 2005 WL 1097302 (Ariz. App. May 10, 2005) held that the Arizona Constitution guarantee of a right to bail with "sufficient sureties" did not prevent the trial court from requiring a "cash only" bond. The Court discussed conflicting decisions on this issue from other states with the same or similar constitutional provisions and concluded that cash was a form of surety within the discretion of the court. The dissenting Judge would have held that a surety is a third party guarantor not a deposit of cash and thus a right to bail with sufficient sureties meant the court had to accept an appropriate surety bond and could not insist on only cash. Heath v. Kiger, 176 P.3d 690 (Ariz. 2008) held that a defendant released on her own recognizance was “admitted to bail” for purposes of an exception in the sufficient sureties clause of the Arizona Constitution. The Constitution provides that bail can be denied if the defendant has been arrested for a felony offense committed while admitted to bail on a separate felony charge. The defendant was arrested on three felony drug charges, released on her own recognizance, and then arrested on additional felony drug charges. The Court held that she could be held without bond.

In re Forfeiture in the Amount of $10,000, 2007 WL 5369150 (Ariz.App. July 10, 2007) affirmed the trial court’s exercise of its discretion not to remit any portion of a bond forfeiture. The defendant failed to appear and the court issued a bench warrant. Several months later, the court held a hearing on the state’s application for a rule to show cause why the bond should not be forfeited. The defendant had fled to Mexico, but the surety located him there and brought him to the U.S. border. While the defendant was at U.S. Customs, they called the local police who did not locate the warrant and did not arrest the defendant. The court held that the bond was properly forfeited because forfeiture is based on the defendant’s actions, not the surety’s, and here the defendant willfully fled to Mexico. On the issue of remitting all or any part of the forfeiture, the trial court has discretion. The trial court considered the surety’s unsuccessful efforts to return the defendant to custody and the other factors required, and thus did not abuse its discretion in not remitting any of the forfeiture.

In State v. Liberty Bail Bonds, 2008 WL 4095513 (Ariz.App. January 24, 2008) the defendant failed to appear, and the court set a hearing to show cause why the bond should not be forfeited. Prior to the hearing, the surety recovered the defendant and surrendered him to the Sheriff. The bail agency was a limited liability company. At the hearing, the owner of the agency attempted to appear for the agency and the surety. The State objected, and the court agreed that as a non-attorney the owner could not represent the agency or the surety. The record, however, showed that the defendant had been surrendered. The court forfeited two-thirds of the bond amount, and the surety appealed. The Court of Appeals agreed that the owner of the bail agency could not represent the agency or corporate surety. It thought the better practice would have been for the trial court to have permitted him to testify as a witness and itself questioned him to establish the facts, but that under the circumstances it was not an abuse of the trial court’s discretion not to have done so. The Court affirmed the judgment forfeiting two-thirds of the bond amount.

In State v. Bartley, 2008 WL 4148944 (Ariz.App. January 10, 2008) the surety posted a bond for a defendant against whom INS had placed a hold. The defendant was released to INS and deported to Jamaica. He did not appear and the bond was forfeited. The surety denied it was aware of the INS hold and claimed to be surprised by the deportation, but the Court noted that information on the INS hold was in the bonding paperwork available to the surety and that the surety did not petition the Attorney General to permit the defendant’s return to appear in the court case. The Court thought the surety assumed the risk of the defendant’s failure to appear and under the facts of the case the non-appearance was not excused by the deportation. The Court held that forfeiture of the bond was not an abuse of the trial court’s discretion. In State v. Azteca Bail Bonds, 2008 WL 4173295 (Ariz.App. February 26, 2008) the defendant failed to appear at his initial pretrial conference. After a series of hearings, the court eventually entered a judgment forfeiting the bond, and the surety appealed. The surety argued that on the date of the pretrial conference the defendant was in jail in the same County that was prosecuting the case. The Court recognized that case law from other jurisdictions held the bond could not be forfeited if the State itself prevented the defendant from appearing, but the Court did not reach that issue because the record on appeal did not establish the factual basis for the surety’s contentions. The surety did not provide transcripts of the various hearings, so it was impossible to establish the facts before the trial court or the basis for its decision. The surety had the duty to furnish the relevant transcripts or recordings if it believed the trial court’s ruling was not justified by the evidence, and in the absence of such recordings or transcripts the Court of Appeals had to assume that the evidence supported the trial court’s ruling. There was no basis on which the Court could find that the trial court abused its discretion.

In State v. Ameribail Bail Bonds, Inc., 2008 WL 4182433 (Ariz.App. April 15, 2008) there was some confusion over the defendant’s correct name, but the court record included both his name and an alias and the fact that there was an INS hold on him. The surety wrote the bond in the name of the alias, and the INS deported him. When he failed to appear at the next scheduled hearing, the bond was forfeited. He appeared, however, two months later at the bond show cause hearing. Nevertheless, the court forfeited the bond and the surety appealed. The surety argued that the court abused its discretion in forfeiting the bond because of the confusion over the names, because the defendant in fact returned to the United States to face the charges, and because the bond should have been exonerated when the defendant appeared at the show cause hearing. The Court rejected each argument and affirmed judgment against the surety. The Court held that the surety was obligated to exercise care in ascertaining the identity and circumstances of the defendant it proposed to bond. The surety ran the risk that the defendant gave it inaccurate information, and it is not the jail’s obligation to perform the surety’s investigation. Here, the court records had both his correct name and the alias. The defendant’s return to the United States and subsequent appearance did not change the fact that the bond was breached. Unless the bond was not been breached and was no longer needed, neither of which occurred here, the trial court had discretion to forfeit all or part of the bond, and it did not abuse that discretion.

In State v. Liberty Bail Bonds, 2008 WL 4516394 (Ariz.App. October 2, 2008) two Mexican nationals were arrested in a drug transaction. The surety provided bonds for both defendants. After they were deported, the defendants failed to appear. The trial court forfeited one bond but exonerated the other. The surety and bail agent appealed the forfeiture. The defendant whose bond was exonerated was deported three days after the bond was posted and before arraignment. The court found no evidence this defendant had notice of his court proceedings. The other defendant was deported after he had appeared for arraignment. He had notice of his obligations to appear, and there was no evidence in the record of any effort by the defendant, the surety or the agent to arrange his return. The bail agent argued that forfeiting the bond of the second defendant was a denial of equal protection because the trial court treated the two defendants differently. The Court held that the different facts justified the disparate treatment. The agent argued that deportation of the defendant justified his failure to appear, but the Court held that the surety knowingly bonded an alien and ran the risk he would be deported. There was no evidence of any attempt by the defendant to keep in contact with his attorney or to return for his court obligations and no evidence of attempts by the surety to secure his return. The court did not abuse its discretion in forfeiting the bond.

In State v. MC’s Bail Bonds, 2009 WL 387759 (Ariz.App. February 17, 2009) the defendant failed to appear at a settlement conference. The court issued a warrant and scheduled a bond forfeiture hearing. A few days later, and before the scheduled forfeiture hearing, the defendant was arrested on an unrelated federal charge. The surety moved to exonerate the bond because the defendant was in custody. The trial court denied the surety’s motion and forfeited the bond. The surety appealed but did not request that the trial court issue findings of fact and conclusions of law as it had a right to do under the Arizona Rules. The Court of Appeals held that the trial court did not have to accept the defendant’s proffered excuse for not appearing. The statute gave the court discretion to remit the forfeiture because the defendant was in custody prior to the forfeiture hearing, but did not require it to, and the trial court did not abuse its discretion. Finally, the surety’s argument that the trial court failed to consider the relevant factors was speculation since it did not request findings of fact and conclusions of law. The Court had to assume that the trial court followed the law and that the evidence supported its decision.

Holt Bonding Co., Inc. v. State, 2003 WL 21418466 (Ark. App. June 18, 2003) set aside a bond forfeiture because the applicable statute, Ark. Code section 16-84-201(a)(1)(A), requires that an order directing the surety to appear and show cause why the bond should not be forfeited shall be sent by certified mail. The certified mail receipt in the court file did not have a postmark on it. The court held "the failure to ensure a proper post mark constitutes a failure to strictly comply with the requirements of section 16-84-201" and reversed the forfeiture.

Renny's Bail Bond Company v. State, 2004 WL 1987655 (Ark. App. September 8, 2004) did not reach the merits of the bail bond company's motion to set aside a forfeiture because the motion was filed more than 90 days after entry of the forfeiture. The Court held that pursuant to Ark. Civil Rule 60, once the 90 day period expired the trial court lost the power to modify the judgment of forfeiture. [Probably not published]. Renny's Bail Bond Co. v. State, 2004 WL 2294408 (Ark. App. October 13, 2004) held that the trial court correctly denied a motion to set aside a bond forfeiture. The motion was filed after expiration of the 90 day period in which Ark. R. Civ. Proc. 60 permits the trial court to modify or vacate a judgment. In any case, Ark. Code §16-84-201(c)(2) exonerates the surety if the defendant is apprehended within 120 days after written notice to the surety that the defendant had failed to appear, and here he was surrendered after the 120 day period expired.

Spencer Bonding Services, Inc. v. State, 200 S.W.3d 457 (Ark. App. 2004) held that the bond should not have been forfeited because a 171 day delay between the defendant's failure to appear and sending an order to show cause to the surety was not "prompt" issuance of the order as required by Ark. Code §16-84-201(a).

Hot Springs Bail Bond v. State, 206 S.W.3d 306 (Ark. App. 2005) held that the state's failure or refusal to enter a misdemeanor warrant for the fugitive defendant in the NCIC and ACIC databases was not a ground to exonerate the bond.

In Manuel Bail Bond Company, Inc. v. State, 2005 WL 1040060 (Ark. App. April 27, 2005) the defendant failed to appear, and the bail bond company was personally served with notice of a show cause hearing. The company appeared and waived the show cause hearing and acknowledged that it had 120 days to produce the defendant. When it failed to produce him, the bond was forfeited. The bail bond company appealed on the theory that the statute required service of the notice by certified mail not by personal service. The court expressed skepticism but held that the case should be decided under the law in force at the time the forfeiture action was commenced, and the certified mail provisions was added to the statute by a later amendment. Since the applicable law did not require any notice to the surety, the judgment of the trial court was affirmed without reaching the question of how notice must be provided under the amended statute.

In Arvis Harper Bail Bonds, Inc. v. State, 208 S.W.3d 809 (Ark. App. 2005) the defendant failed to appear and a hearing was set for the bondsman to show cause why a judgment of bond forfeiture should not be entered. Prior to the show cause hearing, the bondsman recovered the defendant and turned him over to the Sheriff, which should have foreclosed entry of judgment. However, the bondsman did not appear at the show cause hearing or provide the clerk, the court, or the prosecutor with the receipt showing he had surrendered the defendant. The court, not being informed otherwise, entered a judgment of forfeiture. No appeal was taken, but more than 90 days later the bondsman moved to set aside the judgment, and the trial court denied the motion. The Court of Appeals held that there was no jurisdiction to set aside the forfeiture. Under Ark. Rule of Civil Procedure 60, for 90 days a court can act to correct errors or mistakes or to prevent a miscarriage of justice. After 90 days passes, a judgment can be set aside only for fraud or misrepresentation. Since there was no fraud or misrepresentation and the bondsman did not act within the 90 day period, the trial court could not modify or vacate the judgment. Manuel Bail Bond Company, Inc. v. State, 2005 WL 1463849 (Ark. App. June 22, 2005) reached the same result on reconsideration of the decision reported at 2005 WL 1040060. This time the Court held that service of the notice of forfeiture by certified mail was not a jurisdictional requirement and, like all questions of sufficiency of service of process could be waived by appearing in the case. In this case, the Court found such a waiver and affirmed judgment against the surety without discussing the "old" law versus "new" law issue addressed in its first reported decision.

Renny’s Bail Bond Co., Inc. v. State, 2006 WL 477633 (Ark.App. March 1, 2006) affirmed the trial court order forfeiting the bond. The defendant failed to appear and the court issued an arrest warrant. The next day the defendant was arrested for a different offense in another county, but he was released later the same day because the arrest warrant was not yet entered in the state’s warrant database. The court found that release on bond remanded the defendant to the custody of the surety, and it was up to the surety to keep track of the defendant and make sure he appeared. The State has to cooperate, but the surety cannot rely on the authorities to perform the surety’s duty. The surety did not recover the defendant and was not entitled to remission of the forfeiture. In Manuel Bail Bonds v. State, 2007 WL 104451 (Ark.App. January 17, 2007) the defendant gave a false name, and the Sheriff did not fingerprint her or keep any other record that would enable the surety to identify her. The surety argued that it should not be liable on the bond. The trial court forfeited $15,000 of the $50,000 bond, and the surety appealed. The Court of Appeals affirmed and held that it was up to the surety to know whom it was bonding and to produce the defendant when required and, while it did not condone the Sheriff’s failure to follow proper procedures, it would not shift responsibility to produce the defendant from the surety to the State.

In First Arkansas Bail Bonds, Inc. v. State, 2007 WL 987806 (Ark.App. April 4, 2007) the clerk mailed the surety notice of a forfeiture judgment two months after it was entered. The surety recovered the defendant within 90 days of receiving the notice, but more than 90 days after the judgment was entered. The surety moved for relief from the forfeiture under Arkansas Rule of Civil Procedure 60. The Court held that its motion was too late for relief under Rule 60(a), which must be filed within 90 days of entry of the judgment, and did not qualify for relief under Rules 60(b) or (c). The Court noted that there was a requirement that the clerk give the surety notice that the defendant failed to appear, but no requirement for notice of entry of the judgment.

In Bob’s Bail Bonds, Inc. v. State, 2007 WL 1207369 (Ark.App. April 25, 2007) the surety objected to the timeliness and form of its notification of default and summons to appear and show cause why the bond should not be forfeited. It appeared at the show cause hearing through its agent, however, and presented none of these objections. Instead, after judgment was entered, it filed a motion to set the judgment aside. The Court held that none of the stated grounds qualified as a basis for post-judgment relief under the civil rules. The surety had the opportunity to make its arguments at the show cause hearing, and having failed to do so cannot raise them by post-judgment motion. The Court also noted that the surety made other arguments on appeal that it had not presented to the trial court at all, and it refused to consider them for the first time on appeal.

In First Arkansas Bail Bonds, Inc. v. State, 2007 WL 2782832 (Ark.App. September 26, 2007) the defendant provided two bonds for the defendant. The second bond was posted after additional charges were added to the case. The defendant failed to appear, and the trial court forfeited both bonds. The surety appealed, and the Court of Appeals affirmed forfeiture of both bonds. The Court held that by appearing in the trial court and requesting an extension of time to apprehend the defendant, the surety waived any objection to the timing or form of service of process in the case. The Court refused to consider the surety’s argument that the additional charges and second bond exonerated the first bond because the argument was not raised in the trial court. Finally, the Court found no abuse of discretion in the trial court’s giving the surety credit for only a part of the amount it claimed to have expended in attempting to locate the defendant. First Arkansas Bail Bonds v. State, 2008 WL 2042958 (Ark.App. May 14, 2008) held that forfeiture of a bail bond can be accomplished in the defendant’s criminal proceeding without the State having to file a separate civil action. The surety argued that Ark. Code §16-84-207(e)(2) required a separate civil action because it required a summons “as in civil actions, and the action shall be docketed and shall proceed as an ordinary civil action.” The Court rejected the surety’s argument and interpreted the statute to require only that the State proceed “as in” a civil matter within the context of the defendant’s criminal case.

In First Arkansas Bail Bonds v. State, 2008 WL 2132672 (Ark. May 22, 2008) and First Arkansas Bail Bonds v. State, 2008 WL 2132288 (Ark. May 22, 2008) the defendants failed to appear and the court sent a show cause notice to the surety. The notice, however, was not a summons and did not set a date for a hearing on forfeiture of the bonds. Some months later, the court issued a summons and held a hearing at which it forfeited the bonds. On appeal, the surety argued that the summonses were not “immediately issued” as required by Ark. Code §16-84-207(b)(2)(B). The Court thought that the initial notices, which were sent immediately, were not the summons because they did not set a date and time for a hearing. The Court rejected the State’s argument that the delay actually benefited the surety and so to apply the literal requirement that the summons be issued immediately would be an absurd result that the Legislature could not have intended. Arkansas law requires that service of process requirements be strictly complied with, and the plain meaning of “immediately” did not permit a delay of several months. The Court reversed judgments against the surety and remanded the cases.

People v. Ranger Insurance Co., 134 Cal. Rptr.2d 199 (Cal. App. May 19, 2003) rejected the argument that the court lost jurisdiction to forfeit the bond when it failed to declare forfeiture on the first date the defendant did not appear.

People v. Ranger Ins. Co., 2003 WL 21205949 (Cal. App. May 23, 2003) rejected the surety's argument that the bond was exonerated by failure to notify the surety within 30 days of forfeiture. The defendant failed to appear and the bond was forfeited, but he appeared the next day with the bail agent and the bond was reinstated. He subsequently failed to appear for sentencing and the bond was forfeited. The Court made short work of the argument that failure to give notice within 30 days after the first forfeiture was fatal. In People v. Granite State Ins. Co., 2003 WL 21227856 (Cal. App. May 28, 2003) the defendant failed to appear and the bail bond was forfeited. The defendant appeared the next day. The court released her for one day on her own recognizance to obtain reinstatement of bail. Granite, through its agent, signed a letter reinstating the bond. After pleading guilty, the defendant did not appear for sentencing, and the bond was forfeited. The court of appeals rejected a list of arguments based on the earlier forfeiture and reinstatement. It held that Granite had voluntarily resumed its obligations and was estopped to deny them later.

People v. Ranger Ins. Co., 2003 WL 21228415 (Cal. App., May 28, 2003) affirmed forfeiture of bond after the trial court accepted the defendant’s guilty plea, told him what sentence to expect, and released him on bond pending return for sentencing. The court held that only actual sentencing constitutes pronouncing judgment. The court also held that Cal. Penal Code §1166 requires remanding the defendant into custody only after a verdict and does not apply to a guilty plea.

County of Los Angeles v. American Contractors Indemnity Company, 2003 WL 21366706 (Cal. App. June 13, 2003) affirmed denial of a motion to vacate forfeiture of a bond because the defendant was released after pleading guilty. This is another case following People v. Seneca Insurance Company and holding that Cal. Penal Code Section 1166 does not apply following a guilty plea.

People v. Ranger Insurance Co., 2003 WL 21660336 (Cal. App. July 16, 2003) held that “the bail” in Penal Code §1305(c)(4) requiring notice to the bail prior to reinstatement of the bond was the surety company, but nevertheless denied relief because notice to the bail agent was notice to the surety company.

People v. Frontier Pacific Ins. Co., 2003 WL 21663680 (Cal. App. July 16, 2003) is another in a series of cases holding that a guilty plea is not a conviction under Penal Code §1166.

In People v. Ranger Ins. Co., 2003 WL 21929474 (Cal. App. August 13, 2003) the defendant, a Lebanese national, fled to Lebanon. The bail recovery agent located him there, took him into custody and had him identified by the mayor of the town. The surety alleged that the Lebanese police stated they would surrender the defendant at the airport if they received a federal warrant through Interpol. The United States, however, has no extradition treaty with Lebanon. The Court affirmed refusal to vacate forfeiture of the $450,000 bail bond. Cal. Penal Code section 1305(g) allows exoneration of the bond if the defendant is located in another jurisdiction and the prosecutor elects not to seek extradition. Extradition, however, must be feasible. The prosecutor is not required to attempt the impossible. The Court concluded that extradition was not feasible and that the surety had not established that the prosecutor could be a party to "a procedure which does not comport with the extradition process."

People v. Granite State Insurance Co., 2003 WL 22172412 (Cal. App. September 22, 2003) held that a timely judgment properly entered following forfeiture could be corrected to name the surety company rather than the bail agent as the surety even though the 90 day period to enter judgment against the surety had run at the time of the correction. It was clear throughout the file that Granite was the surety, but the judge erroneously entered the judgment against the bail agent, Exit Bail Bonds. Clerical errors in judgments can be corrected, and the court of appeals held that there was no evidence the Judge actually meant to hold the agent liable instead of the surety. In People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) the surety moved to set aside summary judgment on a bail bond because the summary judgment had been entered before expiration of the 185 day period in which the defendant's appearance would exonerate the surety. The court twists around about whether the trial court really lacked jurisdiction to grant the summary judgment. The surety did not appeal the summary judgment and waited until the time in which the court could enter judgment had passed before it moved to set aside the judgment. The court of appeals characterizes this as trifling with the courts. The court clearly stretched for a way not to let the surety out on what the court regarded as a technicality, and in doing so admitted that its result was inconsistent with two other recent cases. The court held that the premature judgment was only "voidable" and should have been challenged directly by appeal and that the surety was now estopped to make a collateral challenge by motion to set aside the judgment.

In People v. Accredited Surety & Casualty Co., 2003 WL 22434669 (Cal. App. October 28, 2003) the bail bond was issued for an alias name, but the defendant was subsequently arraigned under his correct name. The defendant failed to appear and notice of bail forfeiture was mailed to the surety. The name problem caused confusion in attempting to apprehend the defendant. The bail agent filed several different motions to vacate the forfeiture and exonerate the bond. Various extensions of the 180 day period in which such relief can be requested were also made. The motions were eventually denied and summary judgment entered against the surety. On appeal the court reversed the judgment and exonerated the bond on purely procedural grounds.

Under the California statutory scheme, if the defendant appears, surrenders or is arrested within 180 days from notice of forfeiture (185 days if notice is mailed), the forfeiture is vacated and the bond exonerated. The 180 day period can be extended only if the request is made prior to expiration of the period. If the 180 day period expires, the court loses jurisdiction to grant an extension and must enter summary judgment against the surety within 90 days of the expiration. The bail agent’s request to extend the 180 day period was granted, but it had been made too late. Therefore, the court did not have jurisdiction to grant it, and summary judgment had to be entered within 90 days of the expiration of the original 180 day period (in this case 185 days because notice was mailed). The summary judgment was entered within 90 days of the end of the erroneously extended period but not within 90 days of the expiration of the original period, therefore the trial court had no jurisdiction to enter the summary judgment.

People v. Alistar Insurance Company, 2003 WL 22435764 (Cal. App. October 28, 2003) affirmed the trial court’s refusal to set aside summary judgment against the surety. The defendant was charged with three separate offenses and three separate orders were entered admitting him to bail, none of which were in the amount of the bond. A single bond was issued and accepted. The court held that the defect predated the surety bond and so was waived by the bond’s issuance and that, in any case, the bond contract should be enforced even if technically not in compliance with the court’s orders. The court also found that the clerk’s proofs of service and docket entries were sufficient evidence to support the trial court’s finding that notice of forfeiture was received even though the bail agent and surety denied receipt.

People v. American Contractors Indemnity Company, 2003 WL 22480588 (Cal. App. November 4, 2003) denied a petition for rehearing of People v. American Contractors Indemnity Company, 2003 WL 22300590 (Cal. App. October 8, 2003) but re-wrote the section of the earlier decision addressing the court's jurisdiction to enter summary judgment before expiration of the 185 day period following mailing of the notice of forfeiture. The California Supreme Court granted review of the revised decision, People v. American Contractors Indemnity Company, 81 P.3d 223 (Cal. 2003).

People v. American Contractors Indemnity Co., 2003 WL 22753648 (Cal. App. November 21, 2003) reverses summary judgment on a bail bond and directs that the surety be exonerated. The defendant failed to appear on May 21 but her attorney indicated she had car trouble. The court forfeited the bond but stayed the bench warrant. The defendant appeared on May 23 and the bail was reassumed. On June 11 the defendant again failed to appear, the bond was again forfeited, and this time notice of the forfeiture was given to the surety and bail agent. They were not given timely notice of the May 21 forfeiture. The Court of Appeals held that failure to give notice of the May 21 forfeiture deprived the trial court of jurisdiction over the bond and the subsequent forfeiture was void. The Court specifically stated that (1) no prejudice need be shown from failure to give the statutory notice of a bail forfeiture, (2) notice is required for every forfeiture, (3) a forfeiture order cannot be stayed, the proper statutory procedure is to continue the case without ordering forfeiture, and (4) the judge's intent is to be found from his or her own words not the clerk's minute orders. In this case the Sixth District Court of Appeal does not mention the collateral attack/estoppel argument of the Fourth District Court of Appeal in People v. American Contractors Indemnity Co., 2003 WL 22300590 (October 8, 2003), on rehearing WL 22480588 (November 4, 2003) even though it appears that the surety followed the same procedure and moved to set aside the judgment of forfeiture as made without jurisdiction rather than directly appealing its entry.

In People v. Gutierrez, 2003 WL 22766041 (Cal. App. November 24, 2003) the bond was for $215,000 and the premium was $21,500. The defendant's mother paid $2,100 and pledged her house as security for the bond. She did not make any more premium payments, and the bail agent surrendered the defendant two months after the bond was posted. The defendant had not violated any terms of release, but the bail agent claimed he had given misinformation in obtaining the bond. The bail agent asserted that the balance of the premium was due, and the court ordered him to show cause why the premium should not be refunded under Cal. Penal Code §1300 (b). The trial court held that there was no good cause for the surrender, reduced the premium to $4,500 and reduced the lien on the mother's property to $2,400 (the unpaid balance of the $4,500). The Court of Appeals held that the bail agent failed to demonstrate any abuse of discretion by the trial court and affirmed the order.

In People v. Allegheny Casualty Company, 2003 WL 22794427 (Cal. App. November 25, 2003) conditions of release were ordered including that the defendant not drive, not possess alcohol, and attended Alcoholics Anonymous meetings. He failed to appear for his next court date, and the bond was forfeited. The appeal raised two issues. First, the surety argued that imposition of conditions in addition to appearance invalidated the bail contract. The court pointed out that the forfeiture was only for failure to appear, a risk that the surety unquestionably assumed. The court thought that violation of the additional conditions would not have resulted in forfeiture of the bond and, therefore, did not increase the surety’s risk. The court stated, “There is no suggestion in the record that violation of any of those conditions would result in the forfeiture of his bond.”

The second issue was that the trial court entered summary judgment against the bail agent as well as the surety. The government conceded that was error, and the court of appeals directed the trial court on remand to remove the bail agent as a judgment debtor. People v. Bankers Insurance Co., 2003 WL 22977551 (Cal. App. December 19, 2003) held that the failure of the bondsman's lawyer to follow instructions to move to extend the 185 day period in which the surety could seek to exonerate the bond forfeiture did not allow the court to consider an untimely motion to exonerate the bond.

In People v. Granite State Ins. Co., 2003 WL 22994541 (Cal. App. December 22, 2003) the court held that the 90 day period in which the court had jurisdiction to enter summary judgment against the surety commenced on the date the surety's timely motion to set aside forfeiture and exonerate the bond was denied. Once forfeiture is entered, there is an 180 day exoneration period (185 days if notice is mailed to the surety) which can be extended up to another 180 days. If the surety files a timely motion to exonerate the bond (i.e. files before the expiration of the 180 day period plus any extensions) then the date upon which summary judgment can first be entered against the surety is the day following the denial of the motion. The 90 day period starts upon denial of a timely motion not upon expiration of the period in which the motion had to be filed. People v. Alistar Ins. Co., 2003 WL 23100265 (Cal. App. December 31, 2003) presents two issues. First, the surety moved to extend the 180 day period to set aside the forfeiture, but noticed its motion for hearing six days after the expiration of the 30 day period in which such motions may be granted. By statute, the 30 day period may be extended for good cause, but here the court never was asked to extend it. The Court of Appeals, however, rejected the government's argument that the 30 day period was jurisdictional and held that since the trial court heard and decided the motion, and the state did not object to its being heard, the court of appeals would presume that there was good cause to extend the 30 day period.

The trial court however, denied the motion on its merits and refused to extend the 180 day period. The Court of Appeals reversed the trial court and held that the fairly detailed affidavit filed by the surety detailing the efforts of its investigator to locate the defendant was grounds to extend the 180 day period. The state argued only that the bond had been written without sufficient collateral, which the Court found to be irrelevant to the question. The Court pointed out that the law should avoid forfeitures and that the purpose of the bond is to give the surety an incentive to locate and return the defendant not to raise money for the state through forfeitures.

In Cardenas v. American Surety Company, 2004 WL 206286 (Cal. App. February 4, 2004) relatives of the defendant pledged a house as collateral for the bond. The defendant was released into the custody of INS and immediately deported to Mexico. Naturally, he did not appear for trial and the bond was forfeited. The surety instituted non-judicial foreclosure against the house, and the bail agent, surety and indemnitors made a deal in which the house was sold to the agent with credit on the purchase price for the amount of the bond and various related expenses. The agent neglected to tell the indemnitors that a motion to exonerate the bond based on the deportation was filed and granted, so the agent ended up with no bond liability and the house. The indemnitors found out about the exoneration when they checked the court file on the criminal case and sued for breach of fiduciary duty, fraud, etc. The jury held for the surety and agent, and the indemnitors appealed various rulings of the trial court on motions and jury instructions. The court of appeals reversed and remanded for a re-trial. The court relied on the fact that applicable regulations provided that the collateral was held in a fiduciary capacity and that constructive fraud includes failure to disclose a material fact in breach of a fiduciary duty even though there was no intend to defraud.

Interestingly, one of the few issues on which the court of appeals affirmed the trial court was denial of the indemnitors' motion to amend their complaint to add a bad faith count. The court of appeals noted that the Cates decision was based on the unique relationship of the parties to a surety contract, not just to a construction performance bond, and stated, "We decline appellant's request that we expand tort remedies available only in insurance bad faith actions to a claim for breach of a bail bond surety contract." People v. Bankers Insurance Co., 2004 WL 308146 (Cal. App. February 19, 2004) considers the circumstances under which a surety must refund premium after surrendering a defendant. The defendant was arrested for several crimes and each time posted bonds. His sister paid the premiums and secured the bonds with deeds of trust on her residence. After the third arrest the surety on the bonds for arrests number 1 and 2 surrendered the defendant arguing that its risk had been increased by the third arrest and substantial bond posted by another company. The court ordered return of the premiums for bonds 1 and 2 pro rated for the time the defendant was free on the bonds (based on a hypothetical one year term). The Court of Appeals held that the trial court did not abuse its discretion in ordering return of premium or in arriving at an amount to be returned. In People v. Seneca Insurance Co., 2004 WL 346049 (Cal. App. February 25, 2004) the surety made a timely motion to extend the 185 day period in which the bond forfeiture could be avoided by returning the defendant. The defendant was apprehended, based on information provided by the bail agent, nine days after the 185 day period expired and while the extension motion was pending. The trial court refused to vacate the forfeiture. The court of appeals affirmed and held that filing a motion to extend the 185 day period does not automatically extend it and that nothing that happens after the 185 day period expires can constitute good cause to extend it. Therefore, the surety was limited to the grounds which existed prior to the expiration (that there was confusion getting notice to the actual bail agent whose name did not appear on the bond). The Court of Appeals found the trial court was within its discretion in rejecting this grounds.

In People v. Alistar Insurance Company, 2004 WL 377680 (Cal. App. March 2, 2004) the surety moved to extend the 180 day period to produce the defendant and submitted an affidavit explaining in detail its specific efforts to locate the defendant and why the efforts had so far been unsuccessful. The trial court denied the motion without a hearing. The Court of Appeals reversed and held that the surety had shown good cause for the extension by submitting the affidavit and the court abused its discretion in denying the motion. In fact, the state conceded that the motion should have been granted. This case is a roadmap for what needs to be done to obtain an extension of the 180 day period. In People v. Lexington National Insurance Company, 2004 WL 386463 (Cal. App. March 3, 2004) the defendant appeared, admitted to a probation violation and was sentenced. He was granted leave to surrender six days later, and he failed to appear on the surrender date. The court ordered the bond forfeited, and a proper notice was mailed. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the bond was exonerated by operation of law when the defendant was sentenced. The motion was denied. Another judge entered summary judgment against the surety, and denied the surety's motion to discharge the forfeiture and set aside the summary judgment. The surety appealed. The prosecutor and the court recognized that the surety was correct and the sentencing of the defendant exonerated the bond. The issue was whether the forfeiture could be overruled by denying summary judgment. The court held for the surety on the ground that exoneration of the bond upon sentencing of the defendant was automatic and thus the judge declaring the forfeiture had no jurisdiction over the surety and his order was void. Therefore, the second judge had jurisdiction to deny the motion for summary judgment. Had the first judge merely been mistaken, but within his jurisdiction, then it would have been necessary to attack his order directly by appeal. In Seneca Insurance Co. v. County of Orange, 2004 WL 575747 and 2004 WL 739847 (Cal. App. March 24, 2004) pursuant to Cal. Penal Code §1305.4 the surety obtained an extension of the period for bond forfeiture. The day before it was to expire, a police detective, apparently acting at the behest of a bounty hunter and the indemnitor on the bond, went to the Judge in chambers and obtained another extension. The defendant was not surrendered and summary judgment was entered against the surety within the statutory 90 days from the expiration of the second extended period. The surety moved to set aside the judgment and exonerate the bond because the 90 day period from the original extension had expired and §1305.4 was not followed in procuring the second extension. The trial court denied the surety's motion and the surety appealed. The Court of Appeals held that the second extension was improper and considered whether the surety was estopped to assert that fact as a defense. The key to the case was the fact that neither the surety nor the bail agent asked for the second extension or even knew about it in advance. The police detective acted, at most, for the bounty hunter who was not the actual or apparent agent of the surety for purposes of requesting an extension. The Court held that the surety was correct and the 90 day period within which judgment could be entered had expired because it must be computed from the expiration of the first, legitimate extension, the trial court lacked jurisdiction to grant the second extension, and the surety was not estopped to assert the lack of jurisdiction.

In County of Orange v. Bankers Ins. Co., 2004 WL 625290 (Cal. App. March 30, 2004) the defendant posted two bonds on two separate charges. The same agent provided both bonds, but with different sureties. The defendant failed to appear on the charge for which Bankers was surety on the bond, and the agent requested an extension of the 180 day period to produce the defendant and exonerate the bond. During the continued period, the agent received a copy of the other bond marked exonerated by the court clerk. The agent assumed that meant the defendant had been apprehended and took no further action on the Bankers bond. In fact, exoneration of the other bond was a mistake. In due course, summary judgment was granted on the Bankers bond. The Court of Appeals held that the extended forfeiture period had expired, the trial court no longer had jurisdiction to set aside the forfeiture, and in any case, the mistaken exoneration of the other bond was not a basis to grant relief from forfeiture of Bankers’ bond.

People v. Ranger Ins. Co., 2004 WL 625817 (Cal. App. March 30, 2004) held that a court has no jurisdiction to grant relief from forfeiture once the 180 day period (plus any extensions) has expired. The defendant was incarcerated in another state, and the bail agent called the court clerk and told her of the incarceration, but no motion was filed until after the 180 day period expired. Had a timely motion been made, the surety would have been entitled to have the forfeiture set aside and the bond exonerated. Because a timely motion was not filed, summary judgment on the bond could not be set aside.

In County of Orange v. Continental Heritage Ins. Co., 2004 WL 870847 (Cal. App. April 23, 2004) the surety asserted three reasons why the bond forfeiture should be set aside. The Court rejected each claim because the surety could not establish the factual predicates for its arguments. The surety argued that the court failed to forfeit the bond when the defendant first failed to appear, but the Court held there was sufficient excuse for the initial failure to appear because the defendant was present when the case was called but his attorney was not. Later that day when the case was called again the attorney was present but the defendant was not. The attorney said he spoke to the defendant and told him the matter would be continued. The Court held that this was good cause to continue the matter without forfeiting the bail bond at that time. Second, the surety argued that the warrant was not entered in the National Crime Information System. The evidence, however, showed that it was entered, and in any case the surety failed to prove that the alleged absence of the warrant prevented it from recovering the defendant. Third, the surety claimed it had no evidence it received notice of the forfeiture, but the record included the clerk's sworn declaration of mailing. The court noted that the statute requires only the notice be mailed, and stated "The surety's failure to keep adequate records is not a ground for vacating the forfeiture."

In The People v. Ranger Insurance Co., 2004 WL 885767 (Cal. App. April 14, 2004) the bonds were forfeited in July 1996. At the time the custom was that the court had a 30 day "grace period" in which to rule on a timely motion to extend the 180 day period in which the forfeiture could be set aside. At the surety's request, two extensions were granted after the original period had expired. The defendant did not appear, and summary judgment was eventually granted on the forfeitures.

In 1998 the courts decided there was no grace period and the extension had to be granted before the original 180 day period expired (the 30 day grace period has since been restored by statute). The surety then claimed that the trial court did not have jurisdiction to grant summary judgment on its bonds because the judgment was not entered within 90 days of the expiration of the original 180 day period even though it was within 90 days of the expiration of the erroneously extended period. The trial court rejected the surety's argument, and in a prior decision, the Court of Appeals held that the surety was correct and the judgment invalid but remanded the case for the trial court to determine whether the surety was equitably estopped to assert the invalidity since it was the party which procured the extension.

After remand, the trail court lost the file and the case sat for several years. The surety moved to dismiss for want of prosecution. The Court of Appeals affirmed the trial court's denial of the motion and its finding that the surety was equitably estopped to assert the invalidity of the original summary judgment.

In People v. Seneca Insurance Company, 2004 WL 1167397 (Cal. App. May 26, 2004) the defendant failed to appear for arraignment but no complaint had been filed and the arraignment was continued. He also failed to appear on the new date, and the bond was forfeited. The clerk, however, mailed the bail agent's notice of forfeiture to the wrong address. The state represented that the bail agent was present in court, however, and thus received actual notice of the forfeiture. The appeal decided three issues. First, the court held that the failure to forfeit the bond at the first non-appearance was not a defense because the arraignment could not have gone forward so the defendant's presence was not lawfully required. Second, the court held that the defendant was not entitled to notice of the continued date since it was stated in open court on the first date and he should not profit by his failure to appear. Third, the statute, Cal. Penal Code §1305(b), requires written notice to the bail agent and surety, and there was no dispute that the bail agent did not receive written notice because of the clerk's error in addressing the envelope. Actual, but not written, notice does not satisfy the statutory requirement. The court, therefore, reversed the judgment and held that the surety's motion to vacate the forfeiture and exonerate the bond should have been granted.

In People v. Accredited Surety and Casualty Co., 2004 WL 1211863 (Cal. App. June 3, 2004) the surety timely moved to set aside forfeiture and exonerate the bond and in support relied on an Albanian certificate showing that the defendant died. The government relied on a witness, an alleged expert on the Albanian criminal gang of which the defendant was a member, who testified that in his opinion the death certificate was false. The government also submitted letters from Interpol indicating that the defendant was alive at times after the death certificate indicated he was dead. The Court of Appeals held that the surety had not met its burden to show that the trial court abused its discretion in refusing to set aside the forfeiture, in part because the record did not include a transcript of the expert’s testimony so the Court could not review the trial court’s decision to believe it. [Not published.]

In People v. American Contractors Indemnity Company, 2004 WL 1405744 (Cal. App. June 24, 2004) the surety sought relief from forfeiture because within 185 days of mailing of the notice of forfeiture the defendant voluntarily appeared in the clerk’s office and had a new court date set. When he did not appear for the new date, no new forfeiture was entered. The Court assumed, without deciding, that appearing in the clerk’s office was appearing in court within the meaning of Cal. Penal Code §1305(c)(1). It nevertheless refused to set aside the forfeiture because it found that the record before it on appeal failed to establish the defendant had personally appeared. The surety had the burden of establishing a basis to reverse the trail court, and the factual record was inadequate to do so. [Not published].

County of Los Angeles v. Granite State Insurance Company, 2004 WL 1464892 (Cal. App. June 30, 2004) held that the surety's motion to set aside summary judgment and exonerate the bond should have been granted. The defendant failed to appear on February 13, 2001, and the judge issued a bench warrant and forfeited the bond. Inexplicably, the clerk's minute order said the bond was not forfeited and the bench warrant held until March 6. On March 6 the defendant did not appear and the bench warrant was issued and the bail bond again forfeited. This time the clerk mailed a notice to the surety on March 9 but the notice specified only the March 6 forfeiture. Cal. Penal Code §1305(b) requires that the surety shall be released if notice of forfeiture is not mailed within 30 days after entry of the forfeiture. The Court held that the clerk could not overrule the judge and the forfeiture occurred on February 13 and the March 9 notice, although mailed within 30 days, could not be stretched to encompass the February 13 forfeiture. [Not published].

People v. American Contractors Indemnity Company, 2004 WL 1552061 (Cal. App. July 12, 2004) acknowledged that the trial court erred in entering summary judgment on a bail bond forfeiture before ruling on the surety's timely motion to vacate the forfeiture. The Court of Appeals nevertheless refused to reverse the trial court's denial of the surety's motion to set aside the summary judgment. The Court noted that the motion to vacate was heard and denied on its merits a few days after the summary judgment was granted and held that while the surety could have appealed from the erroneous summary judgment it could not show exceptional circumstances justifying a collateral attack on the judgment via the motion to set it aside. [Not published].

People v. American Contractors Indemnity Co., 16 Cal. Rptr.3d 76, 93 P.3d 1020 (Cal. 2004) is a rare California Supreme Court decision on a bail bond issue. The trial court entered summary judgment against the surety on the 185th day after the notice of forfeiture was mailed. The summary judgment was therefore premature. The surety, however, did not move to set it aside before it became final or file an appeal (either of which would have alerted the government and the court to the error and allowed them to correct it). Instead, the surety waited until it was too late to enter a new summary judgment and then filed a motion to set aside the summary judgment, discharge the forfeiture and exonerate the bond.

If the summary judgment were void, the surety would prevail. The Supreme Court, however, held that the summary judgment was only voidable. That is, the trail court had jurisdiction over the parties and the subject matter but acted in excess of its statutory jurisdiction by entering the judgment prior to expiration of the 185 day appearance period. The Supreme Court held that a voidable judgment must be timely attacked by a motion to set aside before it becomes final or an appeal, and that it is not subject to collateral attack by an untimely motion to set it aside unless special circumstances prevented a timely motion or appeal. Here there were no such special circumstances, so the surety's untimely motion to set aside the erroneous summary judgment was properly denied. [Published].

People v. Lexington National Ins. Co., 2004 WL 1663579 (Cal. App. July 27, 2004) allowed the bail agent to appeal in the surety's name but denied relief from the bail forfeiture. The defendant pled guilty and bail was continued pending sentencing. The court warned the defendant that he faced a substantially longer sentence if he failed to appear and indicated that it wanted the bail agent to agree that the bail continued in force. The bail agent did not agree, and the defendant did not appear for sentencing. The Court of Appeals held that the guilty plea, unlike a conviction after trial, did not require the court to remand the defendant into custody unless it made certain specific findings. The fact that the trial court apparently was confused or had doubts and wanted the bail agent's consent did not change the statutory procedure. The failure of the bail agent to consent to continuation of the bail was not a constructive surrender of the defendant.

People v. Safety National Casualty Co., 2004 WL 1839154 (Cal. App. August 18, 2004) held that the surety was not entitled to have the forfeiture set aside and its bond exonerated. The defendant fled to Korea where a representative of the surety located him and took him to a local police station. The issue was whether the prosecutor elected not to seek extradition, which is one of the elements that Penal Code §1305(g) requires. The prosecutor did not act quickly, but eventually initiated an extradition request. The court held that even if inactivity can equal an election not to seek extradition, the trial court’s finding that the prosecutor did elect to seek extradition was supported by substantial evidence. [Not published].

In People v. National Automobile and Casualty Insurance Company, 18 Cal. Rptr.3d 357 (Cal. App. 2004) the parties wanted to continue a motions hearing. The trial court agreed, but instead of simply continuing the hearing date, it said that the defendant and his counsel need not appear but left the case on the docket for the original date and at that time purported to forfeit the bond but took the forfeiture and a bench warrant under advisement. When the defendant appeared at the agreed-upon continued date, the court purported to vacate the forfeiture and reinstate the bond. After various other proceedings, the defendant failed to appear for sentencing, and the court forfeited the bond. The surety argued that the court had no jurisdiction to forfeit the bond at the sentencing because no notice was given of the purported forfeiture on the original date for the motions hearing and no prior notice was given when the bond was reinstated. The Court of Appeals held that once the defendant was excused from appearing on the date the motion was originally to be heard, his presence was not "lawfully required" within the meaning of Penal Code §1305(a) and therefore the bond could not be forfeited for his failure to appear and therefore the court did not have jurisdiction to declare a forfeiture, and its purported forfeiture was void. Since the bond was not actually forfeited, it could not be reinstated when the defendant appeared for the continued motions hearing. Thus, no notice to the surety was required. In effect, the Court of Appeals disregarded the trial court's procedural errors in purportedly forfeiting and reinstating the bond, and looked at the actual substance of the events which was a simple continuance of the hearing. In County of Los Angeles v. Lexington National Ins. Co., 2004 WL 2404587 (Cal. App. October 28, 2004) the surety obtained the one permitted extension of the 180 day period to surrender the defendant and avoid a summary judgment on the bond forfeiture. For some reason, the court on its own granted another extension and entered summary judgment after expiration of this second extension. The Court of Appeals reversed and remanded for entry of an order exonerating the bond because the summary judgment was not entered within 90 days after the proper extension expired and, therefore, the bond was exonerated by statute. [ Not Published].

People v. Heritage Bail Bonds, 2004 WL 2581126 (Cal. App. November 15, 2004) rejected an attempt by sureties that had prevailed in an earlier appeal to recover their attorneys fees as a part of the "costs" awarded to the prevailing party. [Not published.] In People v. Accredited Surety and Casualty Co., 2004 WL 2650999 (Cal. App. November 22, 2004) the defendant was located and arrested in Kentucky on the California fugitive warrant. He was released there on bail before the California authorities were informed. He was allegedly terminally ill, and rather than seek extradition the district attorney dropped the charges in return for restitution. The surety sought relief from forfeiture. The surety's primary argument was that Penal Code §1305(c)(3) required relief because the defendant was arrested outside of the County in which the charge was pending. The Court held that §1305(c)(3) applies only if the defendant is arrested or surrendered in another California jurisdiction. In the alternative, the surety sought relief under §1305(d), (f) and (g). The Court rejected all three arguments by reading the statute very literally. Subdivision (d) applies if the defendant is dead or permanently unable to appear because of illness, but there was no showing that the "terminal" illness prevented him from appearing. Subdivision (f) applies if the defendant is in custody outside of California and the prosecutor elects not to seek extradition. Here, he had been released before the prosecutor elected not to seek extradition. Subdivision (g) applies if a bail agent temporarily retains the defendant outside of California in the presence of local law enforcement authorities. That did not happen here since the defendant was arrested. The net result is that the surety pays the bail forfeiture even though the prosecutor could have had the defendant back but did not want him. [Not published.]

In People v. Accredited Surety & Casualty Co., 2004 WL 2729593 (Cal. App. December 1, 2004) the defendant was charged with possession with intent to distribute at least 44 pounds of cocaine. He also had a prior drug-related conviction and faced a potential sentence of 25 years. His bond was reduced from $2 million to $20,000 pursuant to a stipulation between the defendant and the state, and without making any of the findings required by Penal Code §1275 for bail reduction. The surety posted the $20,000 bond. After the defendant failed to appear for sentencing, the bond was forfeited. The court affirmed denial of the surety's motion to set aside the forfeiture and exonerate the bond. The court rejected the surety's arguments that the bond was discharged by the failure to follow the procedure mandated by §1275 and the state's failure to inform the surety of the amount of cocaine or the prior drug charge. It appears that the bond reduction was part of a deal for the defendant to a act as an informant. The bail agent stated that he assumed certain things from the fact of the bail reduction. The court held that, "Noncompliance with section 1275 is not a cognizable ground for exoneration nor a defense to forfeiture of a bail bond." The court also held that the state had not misled the surety, and any lack of knowledge was attributable to the bail agent's failure to examine the court record. [Not Published].

People v. American Surety Company, 2004 WL 2729781 (Cal. App. December 1, 2004) held that the record on appeal was inadequate to overcome the presumption that the trial court acted properly in denying exoneration of the bond. The bond covered several separate charges. The defendant pled guilty to the motor vehicle charges and was granted probation, but he was ordered to a diversion program on the drug charge. He was to appear on a date certain to show that he had attended the drug programs. He failed to appear and the bond was forfeited. The record did not establish that he pled guilty to the drug charge or that he was granted probation on it or that the diversion was pursuant to a Penal Code section that would have exonerated the bond. [Not Published]. People v. Aegis Security Insurance Company, 2004 WL 2809520 (Cal. App. December 8, 2004) is an object lesson in the precise use of language. The defendant was convicted and bail set pending sentencing at $1,560,000. The surety, apparently through a program with Capital Bonding Corp., posted the bail by two bonds, one for $1 million and one for $560,000. Separate powers of attorney were attached to each bond. The powers said that the obligation of the company shall not exceed $1 million and had "anti stacking" language which said the bond was void "if more than one such power is attached." The powers also said, "no more than one power from the surety may be used to execute any one bond." The Court pointed out that the surety could have limited the agent's authority to $1 million per case or per defendant but did not. The literal prohibition of the powers was not violated because only one power was used on each bond. The decision has a good survey of California cases on anti stacking provisions and implicitly acknowledges that such provisions will be enforced as written.

The surety also argued that forfeiture should be set aside because the name of the agent was not filled in on the powers. There was no dispute, however, that the agency, Apo's Bail Bonds, was authorized, and the agent signed the power. The court held that there was no requirement that the agent's name also be printed and that the blank did not render the powers too uncertain or misleading to be valid. [Not Published].

People v. Anyway Bail Bonds, 2004 WL 2809343 (Cal. App. December 8, 2004) affirmed denial of the surety's motion to vacate bond forfeiture. The clerk's minutes indicated that the defendant was in court on a date within 180 days of forfeiture (which would have exonerated the bond) but the court found that the entry was clearly an error and the defendant was not actually present. The surety presented no evidence to show the defendant was present other than the minute entry. The court also rejected the surety's argument based on alleged failure to enter the warrant into the national warrant system because the surety made no showing that such a failure impacted its ability to recover the defendant. [Not Published.]

In People v. Amwest Surety Insurance Company, 22 Cal. Rptr.3d 810 (Cal. App. 2004) the defendant did not appear and the clerk’s minutes said the bond was forfeited, but the transcript showed that the court did not forfeit the bond in open court as required by Penal Code §1305(a). The required notices were mailed, the appearance period extended, and summary judgment entered against the surety. No appeal was taken, but more than two years later the surety moved to set aside the judgment and exonerate the bond. The issue in the appeal was whether the judgment was void, in which case it could be collaterally attacked, or merely voidable, in which case it could be appealed but not collaterally attacked after it became final. The Court held that failure to declare the forfeiture in open court meant that the bond was exonerated and the court lost all jurisdiction to later enter the summary judgment, so the judgment was void and subject to collateral attack.

In People v. Ranger Insurance Co., 2005 WL 91408 (Cal. App. January 14, 2005) the defendant failed to appear, a forfeiture was declared, but four days later the bond was reinstated with the surety's consent and the forfeiture vacated. The defendant again failed to appear and the proper procedures were followed to enter judgment against the surety. The surety moved to set aside the judgment on the ground that no notice of the first forfeiture was mailed and so the court lost jurisdiction to enter judgment on the bond. Not surprisingly, the court rejected this argument and held that there was no requirement to mail notice of the first forfeiture since the bond had been reinstated with the surety's consent. [Not published].

People v. Granite State Ins. Co., 2005 WL 236186 (Cal. App. January 25, 2005) affirmed denial of the surety’s motion to vacate a forfeiture. The defendant pled no contest and was ordered to appear for sentencing on July 29. For reasons not contained in the record, the bond itself said he was to appear on July 26. He failed to appear on either date, and the court forfeited the bond for the July 29 non-appearance. The surety argued that the entry on the bond (which the surety alleged was made by the “jailor”) was an order to appear and that when he failed to appear on the 26th and no forfeiture was entered, the court lost jurisdiction to enter the forfeiture on the 29th. The court found that the record did not establish who wrote the 26th on the bond and no appearance was scheduled for that date, therefore not appearing on the 26th was not a breach and no forfeiture could have been entered. [Not published.]

In Overland v. Superior Court, 23 Cal. Rptr.3d 676 (Cal. App. 2005) depositors of cash bail sued for interest earned on the deposits. The plaintiffs relied on U.S. Supreme Court cases involving lawyer trust accounts and argued that the state’s retention of interest earned on the deposits was an unconstitutional taking of their property. The trail court sustained the defendant’s demurrer [dismissed the case] as to pre-exoneration interest. The Court of Appeal held that the deposit was made pursuant to a contract, the contract did not provide for interest, and there was no unlawful taking. The appeal did not address interest earned after entry of the court order exonerating the cash bail but before the deposit was returned.

In People v. Aegis Security Insurance Company, 2005 WL 460039 (Cal. App. February 28, 2005) the defendant failed to appear on February 27, 2003, and the court forfeited the bond in open court. The notice of forfeiture was mailed to the surety on March 7, but it erroneously stated that March 7 was the date of forfeiture. The summary judgment later repeated the erroneous March 7 forfeiture date. The Court of Appeal affirmed the judgment and held that the erroneous date on the notice was just a clerical error, which could be corrected at any time. There was, in fact, no hearing or failure to appear on March 7, and even though the notice had the wrong date, it was mailed within 30 days of the actual forfeiture and contained all the information to which the surety was entitled by statute. The Court also granted the government's motion that it take judicial notice of trial court's docket but refused to take judicial notice of the trial court's case management procedures as described in an affidavit by a deputy clerk.

People v. Ranger Insurance Company, 2005 WL 590650 (Cal. App. March 15, 2005) rejected the surety's appeal on various procedural and evidentiary grounds. The surety argued that the defendant was in federal custody on the date he failed to appear or during the 180 day period following forfeiture. After the notice of forfeiture was mailed, the surety filed a timely motion to vacate forfeiture and exonerate the bond. The trial court was not satisfied with the evidence submitted by the surety and continued the hearing. No one appeared for the surety on the new date, and no reporter's transcript of the proceedings that day was filed as a part of the appeal. The court entered summary judgment. The Court of Appeals did not deny that if the defendant was in federal custody, the bond could have been exonerated, but nevertheless affirmed the judgment. The court thought that the evidence submitted to the trial court, the arguments made to the trail court, and the record on appeal were all deficient and failed to establish that the surety was entitled to relief.

In People v. Aegis Security Insurance Co., 2005 WL 665339 (Cal. App. March 23, 2005) the defendant failed to appear and was arrested three months later in another county. The surety moved to exonerate its bonds under the wrong provision of the Code, subsection (c)(2) of section 1305 instead of subsection (c)(3). The trial court denied the motion without prejudice. Rather than re-file under the correct section, the surety appealed. The Court of Appeal recognized that under the admitted facts the surety was entitled to exoneration, and so reversed the trail court. The Court pointed out that the surety could have avoided the expense of an appeal by filing a corrected motion, and ordered the surety to pay the state's costs on the appeal.

People v. Allegheny Casualty Co., 2005 WL 941473 (Cal. App. April 22, 2005) reversed a judgment of forfeiture because the "judgment" was signed by a clerk rather than by a judge. The Court held that the document was not effective to enter judgment and, since the 90 day period following expiration of the appearance period had expired, it was too late to correct the error and enter a valid judgment. The Court directed that the bond be exonerated on that ground and did not reach the surety's alternative argument that it was entitled to relief because the judgment was entered on the last day of the extended appearance period rather than within 90 days following expiration of the extended appearance period. [Not published].

American Contractors Indemnity Company v. County of Orange, 29 Cal.Rptr.3d 916 (Cal. App. 2005) acknowledged that the certificate of mailing filed by the clerk did not comply with Penal Code §1013a(4) because it did not include the name and address of the persons served. Nevertheless, the Court affirmed the judgment of forfeiture because the bail agent admitted receiving actual notice of the forfeiture.

People v. Aegis Security Insurance Co., 30 Cal. Rptr.3d 686 (Cal. App. 2005) held that summary judgment against the surety was premature because a timely motion to extend the appearance period was pending at the time the summary judgment was entered. The Court nevertheless affirmed the judgment because the surety did not make a timely motion to set it aside or take an appeal from the judgment. Instead, the surety waited until after the appeal period expired and then filed a motion to vacate the judgment on the theory that the trial court did not have jurisdiction to grant it. The Court found that the trial court had jurisdiction over the bond and that such a collateral attack on the judgment was barred by People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004). People v. Harco National Insurance Co., 2005 WL 1533133 (Cal. App. June 30, 2005) affirmed the trial court’s refusal to vacate judgment against the surety. During trial, one surety surrendered the defendant and Harco provided a new bond. The defendant immediately absconded, and the court forfeited the bond. Notice of forfeiture was timely mailed, but the notice referred to the wrong date of forfeiture. The surety argued that the court lost jurisdiction to enter judgment on the bond because no notice had been given of the actual forfeiture. The Court of Appeals noted that Penal Code §1305 does not require a notice to give the date of forfeiture, only that it be mailed within 30 days of forfeiture, and held that the discrepancy in the dates was a clerical error, which could be corrected at any time.

In People v. Sirius America Insurance Co., 2005 WL 1533336 (Cal. App. June 30, 2005) the extended appearance period expired on February 1, 2004, a Sunday. The surety filed a motion to vacate the forfeiture, alleging that the defendant was in custody in Mexico but the district attorney refused to request extradition. Since the appearance period expired on a Sunday, a motion filed on Monday, February 2 would have been timely. The surety’s agent stated in an affidavit that he filed the motion at 4:15 p.m. on Monday by placing it in a filing box in the clerk’s office. The clerk’s stamp on the motion, however, showed that it was received on Tuesday, February 3. The trial court found that the motion was untimely, and the Court of Appeals affirmed on the ground that the clerk’s stamp was substantial evidence to support the finding.

People v. Seneca Insurance Company, 2005 WL 1793555 (Cal. App. July 29, 2005) agreed with the surety that the trial court's entry of summary judgment against the surety was in error because at the time the surety's motion to vacate the forfeiture was pending, but held that the surety could not make a collateral attack on the judgment. The surety could have appealed the summary judgment or filed a timely motion to vacate it, but instead the surety waited until after the appeal period expired and moved to set the judgment aside for lack of jurisdiction. Relying on People v. American Contractors Indemnity Co., 93 P.3d 1020 (Cal. 2004) the Court held that the trial court had jurisdiction and the judgment was voidable but not void, and so not subject to collateral attack.

In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety's appeal, the Court held that there can be no forfeiture unless the defendant is "lawfully required" to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.

In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and "[t]he clerk's transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred." The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].

In People v. Ranger Insurance Co., 2005 WL 2037975 (Cal. App. August 25, 2005) the defendant was order to appear in Compton. The case was then transferred to Los Angeles and a notice of the transfer mailed to the defendant. There was no proof the defendant did or did not receive the notice which, in any case had the wrong time for appearance in Los Angeles. He did not appear and the bond was forfeited and a judgment eventually entered. On the surety's appeal, the Court held that there can be no forfeiture unless the defendant is "lawfully required" to appear. Since he was not lawfully required to appear at the place and time the forfeiture was declared, there was no basis for the forfeiture or judgment. The case was remanded to vacate the forfeiture and exonerate the bond.

In People v. Ranger Insurance Co., 2005 WL 2083051 (Cal. App. August 30, 2005) the defendant failed to appear and "[t]he clerk's transcript indicated that the underlying bail bond was also forfeited although the trial court did not formally recite on the record that a forfeiture had occurred." The Court of Appeals held that Penal Code §1305(a) requires the court to declare the forfeiture on the record in open court. Since the trial court failed to comply with the statutory requirement, the bond was not forfeited when the defendant failed to appear and is exonerated by operation of law. Thus, the trial court lost jurisdiction over the bond and its subsequent summary judgment was void. [Not Published].

County of Los Angeles v. Harco National Ins. Co., 2005 WL 2387349 (Cal. App. September 29, 2005) affirmed summary judgment against the surety. The defendant failed to appear on July 9, but her counsel said she was in custody and the authorities had not transported her to court. The court re-scheduled her appearance to July 15. When she failed to appear on the 15th, the court forfeited the bond and issued a warrant. After several extensions, a timely summary judgment was entered against the surety. On appeal, the court rejected the surety's argument that the court lost jurisdiction to declare a forfeiture when it failed to forfeit the bond on July 9. The trial court had reason to believe the defendant had a sufficient excuse (the representation by her counsel) and was not obligated to verify that she was actually in custody. The issue is not whether she had a sufficient excuse but whether the trail court had reason to believe she had a sufficient excuse. The court also rejected the surety's argument that the defendant did not have notice of the July 15 hearing since no notice was required. [Not published].

County of Los Angeles v. American Contractors Indemnity Co., 2005 WL 2447197 (Cal. App. October 5, 2005) affirmed the trial court's refusal to set aside summary judgment and forfeiture. The bail agent's office moved between the time the bond was issued and the date the defendant failed to appear. The notice of forfeiture was mailed to the address on the bond, but the surety argued that the bail agent had given the court notice of his new address. The County conceded that if the trial court knew of the new address it could not simply mail the notice to the old address even though the old address was on the bond, but the County argued, and the Court agreed, that the surety failed to present competent evidence that the agent had advised the trial court of the new address. The Court also affirmed denial of the surety's motion for reconsideration because it was not based on any evidence that could not have been presented in response to the original motion. [Not Published].

In People v. Accredited Surety and Casualty Co., 2005 WL 2542914 (Cal. App. October 12, 2005) the defendant failed to appear on April 25, 2003, and the court forfeited the bond in open court. The court also, however, continued the case to May 6 and stayed issuance of the bench warrant. The defendant failed to appear on May 6, and the clerk mailed a notice of forfeiture that incorrectly stated the date of forfeiture as May 6. The surety argued that it was never given notice of the April 25 forfeiture and so the eventual summary judgment was invalid and the bond was exonerated. The Court of Appeals reasoned that the notice was not required to state the date of forfeiture, here there was only one forfeiture so there could be no confusion as to what the notice was for, and the notice was mailed within 30 days of the forfeiture as the statute requires. Therefore, the Court concluded the notice was valid and the summary judgment proper. [Not Published].

In Kiperman v. Klenshetyn, 2005 WL 2623663 (Cal. App. October 17, 2005) the surety posted a $250,000 for the defendant's release. Another charge was later added, and the court raised the amount of the bond to $1 million, remanded the defendant into custody and exonerated the bond. The court later reduced the second bond to $250,000, refused to reinstate the first bond, but ordered return of the premium for the first bond. The surety then posted a second $250,000 bond. A few weeks later, after the defendant had been charged with another crime and a warrant issued, the bail agent told the police that the defendant was seeking to flee, and the police arrested him on a bus out of town. The surety then "surrendered" the defendant and sought exoneration of the second bond. The court granted exoneration but directed that the premium be refunded. The bail agent appealed the orders to refund the premiums, and the Court of Appeals reversed. The Court held that as to the first bond there was no basis to even consider return of premium because the surety did not surrender the defendant. The court remanded him in response to the new charge. On the second bond, the surety did surrender the defendant, but it had good cause and under Penal Code §1300 the court may order return of all or part of the premium only if the surrender is without good cause. The Court recognized that the premium is fully earned as soon as the defendant is released without regard to the length of time he is free on the bond, and the only basis to order a refund of premium is under the limited conditions set out in §1300.

In People v. Ranger Insurance Co., 2005 WL 2740879 (Cal. App. October 25, 2005) the defendant failed to appear, the bond was properly forfeited, and notice of the forfeiture was mailed. Subsequently, the clerk erroneously noted in the court record that the bench warrant was withdrawn, but then corrected the error. The surety's agent made substantial attempts to recover the defendant, and the agent submitted an affidavit that he believed that given more time he could locate the defendant. The surety moved to exonerate the bond or, in the alternative, to extend the appearance period for another 180 days. The trail court denied any relief. The Court of Appeals affirmed as to exoneration because the bond was properly forfeited and the clerk's subsequent error was not a ground to set the forfeiture aside. The Court reversed as to extension of the appearance period, however, and held that under the facts it was an abuse of discretion not to grant the surety's motion and allow another 180 days to return the defendant. [Not published.]

In People v. Ranger Insurance Co., 35 Cal. Rptr.3d 253 (Cal. App. 2005) the defendant failed to appear on January 14 and a bench warrant was issued. On January 16 he went to the clerk's office and had his appearance re-set for January 20. He did not appear on the 20th or subsequently. Cal. Penal Code §1305(c)(1) provides that the court must exonerate the bond if the defendant appears in court within 180 days of the bond forfeiture. The issue was whether going to the clerk's office was an appearance "in court." The Court of Appeals held that it was not. The Court stated, "An appearance in the courthouse vestibule, hallway, restroom, or clerk's office is not an appearance in court." The Court also rejected the surety's argument that the clerk had a duty to arrest the defendant pursuant to the warrant.

In People v. Allegheny Casualty Co., 2005 WL 2885771 (Cal. App. November 3, 2005) the defendant fled and was arrested in Canada, but the prosecutor elected not to seek his extradition on one felony charge on which the Canadian court held he was extraditable. The Court held that the bond was exonerated pursuant to Penal Code §1305(f). The Court distinguished cases in which the foreign government refused to extradite or the defendant was not in custody. Here, the prosecutor could have obtained the defendant but made a clear choice not to seek extradition. [Not published.]

In County of San Diego v. Harko National Insurance Co., 2005 WL 3059916 (Cal. App. November 16, 2005) the trail court entered summary judgment against the surety prior to expiration of the 185 day appearance period. The surety (spelled "Harko" throughout the opinion) filed an appeal. The Court of Appeals admitted that the judgment was voidable but nevertheless affirmed it. The Court held that the surety had to bring the procedural defect to the attention of the trial court while there was still time to correct it. The Court stated, "By failing to make an objection or motion in the trial court, Harko failed to preserve the issue for appeal." The Court relied on language from the 2004 American Contractors case, which involved a collateral attack on the judgment not a direct appeal. The Court did reject the County's attempt to have the appeal dismissed as untimely on the argument that the case was a "limited civil case" subject to a 30 day appeal period rather than the normal 60 days. Although the amount involved was less than $25,000, none of the procedural requirements for a limited civil case were present.

People v. Ranger Insurance Co., 2005 WL 3100990 (Cal. App. November 21, 2005) held that the County did not have to return the surety's payment of a judgment even though the judgment was unenforceable when paid. The summary judgment was entered in 1997. After an appeal, a remand, delay when the court misplaced the file, and a second appeal, the judgment was affirmed in April 2004. The surety paid the judgment in September 2004 and then moved to set it aside and recover the payment. The Court admitted that under Penal Code §1306 a summary judgment on a bail bond becomes unenforceable after two years, but pointed out that the County was not trying to enforce the judgment. Unenforceable does not mean void, and just because the County could not enforce the judgment does not mean that the surety is entitled to recover its money.

In People v. Ranger Insurance Co., 2005 WL 3275909 (Cal. App. December 1, 2005) the defendant appeared for trial on Monday, July 7, 2003, but the case was placed on the master trial calendar, which apparently meant it came up the next Monday, July 14. On the 14th the defendant's counsel appeared but not the defendant, and the court ordered forfeiture of the bond. Eventually a summary judgment was entered against the surety and the surety appealed from denial of its motion to set aside the judgment. The issue was whether the court could forfeit the bail when the defendant had not been specifically ordered to appear on the 14th. The Court of Appeals held that his appearance for trial was required by law, and thus the trial court had to forfeit the bond when he failed to appear or lose jurisdiction to do so later. The Court affirmed denial of the surety's motion to se aside the summary judgment. [Not published].

County of Orange v. Ranger Insurance Co., 2005 WL 3416292 (Cal. App. December 13, 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant failed to appear on February 2, 2004, but his attorney had spoken to the defendant’s sister who said the defendant did not realize he needed to appear. The court did not forfeit the bond and re-scheduled the appearance to February 6. When the defendant did not appear on February 6, the court forfeited the bond. The Court held that defense counsel’s explanation was a rational basis for the court to believe that the defendant had a “sufficient excuse” under Penal Code §1305(a) not to appear on February 2, therefore the failure to declare a forfeiture on the 2nd did not deprive the court of jurisdiction to declare a forfeiture on the 6th. The Court also held that there was no need to give the defendant notice to appear on the 6th beyond the direction in court on the 2nd.

County of Los Angeles v. Harco National Insurance Co., 2005 WL 3540339 (Cal.App. December 28, 2005) reversed judgment against the surety and remanded the case for exoneration of the bond. Neither the defendant nor his attorney appeared at the initial arraignment on Friday, September 26, but the attorney sent word that he was in trial and asked that the case be continued. The Judge did not forfeit the bond and continued the case to Monday, September 29. The attorney appeared on the 29th and said he could not locate the defendant. The court then forfeited the bond and eventually entered summary judgment against the surety. The Court of Appeals held that the record did not support an implied finding that the defendant had a sufficient excuse for his failure to appear on September 26. By failing to forfeit the bond on the 26th, the court lost jurisdiction to forfeit it later.

In People v. Lincoln General Insurance Co., 2006 WL 93297 (Cal.App. January 17, 2006) the trial court's minute order said "Bail ordered forfeited" but the court reporter's transcript did not show that the judge actually forfeited the bond. Cal. Penal Code §1305(a) requires the court to declare the forfeiture "in open court." The Court discussed the legislative history of that provision and held that the statute meant what it said and the Judge has to make a statement in open court not simply make an entry in the court record. The Court reversed summary judgment against the surety and ordered exoneration of the bond.

People v. Allegheny Casualty Co., 2006 WL 137424 (Cal.App. January 19, 2006) reversed the trial court and directed that the bond be exonerated because there was no court reporter’s transcript of proceedings when the defendant failed to appear and therefore no proof that the Judge forfeited the bond “in open court” as required by Penal Code §1305(a). The clerk’s minute order said the bond was forfeited, but not that it was forfeited in open court, and there were no affidavits or other proof of events when the case was called.

County of Orange v. Lincoln General Insurance Co., 2006 WL 188451 (Cal.App. January 26, 2006) held that the trial court abused its discretion in denying the surety’s motion for a 180 day extension of the appearance period. The surety submitted affidavits from its investigators describing their extensive efforts to locate the defendant and the information they had obtained. They found an address for him and spoke with the indemnitor on the bond, who agreed to help locate him. They did not guarantee that he would be recovered if the period was extended, but they stated that they believed he could be located. The Court concluded that there was no reasonable justification for not allowing the surety more time to recover the defendant and ordered that the case be remanded and the surety’s motion granted.

People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) held that Penal Code §1305(c)(3) does not require the Court on its own motion to vacate the forfeiture if the defendant is incarcerated in another county within 180 days of the forfeiture, and does not automatically exonerate the bond. On the other hand, the Court also held that there is no time limit for the surety to make a motion to vacate the forfeiture under such circumstances. Thus, unlike subsections (c)(1) and (c)(2) dealing with appearance in court or arrest in the same county, subsection (c)(3) is not self-executing, but it also does not impose a time limit, and the surety does not have to file its motion to exonerate the bond within the 180 day appearance period or within any other time period.

People v. Seneca Insurance Co., 2006 WL 302404 (Cal.App. February 7, 2006) rejected the surety’s argument that the bond was void because it was for an amount less than the court had set as bail. The Court granted bail in the amount of $250,000, but the clerk mistakenly recited the bail as $100,000. The surety posted the bond in the lower amount and the defendant was released. After he failed to appear the bond was properly forfeited and judgment entered against the surety. The Court refused to set the judgment aside. In People v. Zavala, 2006 WL 411544 (Cal.App. February 23, 2006) the trial court refused a second extension of the 180 day period. The surety's motion was timely filed, but the trail court had entered a premature summary judgment and thought that deprived it of jurisdiction to extend the period. The trial court also, almost as an aside, stated that even if it had jurisdiction the surety had not shown good cause for the extension. The Court of Appeals, and the State, agreed that the trial court was in error on the jurisdictional issue because the summary judgment was premature, but the Court nevertheless affirmed because the trial court did not abuse its discretion in making the alternate finding that the surety's actions to locate the defendant were not sufficient to constitute good cause for an additional extension. [Not Published].

In People v. Aegis Security Insurance Co., 2006 WL 459275 (Cal.App. February 27, 2006) the defendant twice failed to appear and twice was subsequently arrested. The surety argued that these arrests exonerated the bond. The first arrest was on an immigration charge, and the Court held that it did not exonerate the bond because the defendant was not in custody on the charge for which the bond was given. The second arrest was on the correct charge, but the trial court withdrew the warrant and reinstated the bond. It had the right to do so only if the bail did not surrender the defendant and the bail was notified of the reinstatement. There was no dispute that the bail did not surrender the defendant, but the record did not establish whether the surety was notified. There was no evidence of notice to the surety, but the State argued that the surety had the burden to prove notice was not given. The Court of Appeals remanded the case for the trial court to determine whether notice was given.

People v. Accredited Surety and Casualty Co., Inc., 40 Cal.Rptr.3d 892 (Cal.App. 2006) held that the trial court abused its discretion in refusing to extend the 180 day appearance period. Pursuant to Penal Code §1305.4, the surety timely moved to extend the time to vacate forfeiture of the bond and submitted an affidavit of the bail agent describing attempts to recover the defendant. The trial court denied the motion. The Court of Appeals discussed the factors to be considered and concluded, "The good cause showing under section 1305.4 is a low threshold for the movant. If the surety demonstrates good cause by showing due diligence in the initial 180 days, a reasonable likelihood of success of capturing the defendant in a subsequent 180 days, and any other relevant circumstances, the court should grant the motion." Since the defendant was arrested within the 180 day extension period that the surety should have been granted, the Court directed exoneration of the bond.

In People v. Ranger Insurance Co., 2006 WL 979247 (Cal.App. April 14, 2006) the bail agent filed a timely motion to extend the 180 day appearance period. The court scheduled a hearing within 30 days. The motion was supported by a detailed affidavit, and the State neither filed an opposition nor appeared at the hearing. Prior to the hearing, however, the defendant was incarcerated in another county, and at the hearing the surety presented a letter showing the incarceration and that a hold had been placed against the defendant. The court exonerated the bond without first extending the appearance period. The State later moved to set aside the order exonerating the bond on the ground that the original 180 day appearance period had expired, no extension was granted, and so the court lacked jurisdiction to exonerate the bond. The court agreed, set aside its exoneration order and entered summary judgment against the surety. The Court of Appeals reversed the trial court and reinstated the exoneration order. The proper procedure would have been to extend the appearance period and then exonerate the bond, but since on the record it would have been an abuse of discretion to refuse the extend the appearance period the Court deemed the extension to have been granted. The trial court did not lack jurisdiction over the bond, and reconsideration of its order exonerating the bond was error.

In County of Orange v. Ranger Insurance Co., 2006 WL 1330337 (Cal.App. May 16, 2006) the defendant was charged on a fugitive warrant from another state. He failed to appear and the proper procedures were followed to forfeit the bond and enter summary judgment. The surety moved to set aside the summary judgment because the bond form used was not for a fugitive charge. That is, the bond form was an ordinary appearance bond rather than a fugitive bond. The Court noted that the bond was conditioned on the defendant's failure to appear, which is what happened, and that the statute on fugitive warrants does not call for a particular form. The Court affirmed the trial court's denial of the surety's motion. [Not published].

People v. Ranger Insurance Co., 2006 WL 1672885 (Cal. App. June 19, 2006) affirmed the trial court’s refusal to extend the initial 180 day appearance period. The evidence submitted by the surety showed efforts to recover the defendant and some possibility of success if given more time, but not extensive efforts or any great likelihood of success. The Court reasoned that the decision was within the discretion of the trial court and that discretion was not abused because “Reasonable minds could differ as to this issue . . . .” [Not published].

In County of Orange v. Lexington National Insurance Corporation, 45 Cal.Rptr.3d 543 (Cal.App. 2006) the bond was issued with a proper power of attorney. Two months later, the surety terminated the agent’s authority and sent notice of the termination to the Department of Insurance. A month after the agent was terminated, the defendant failed to appear and the Judge declared the bond forfeited. The clerk did not send notice of the forfeiture to the surety, and the surety did not learn of the forfeiture by any other means. Two days later, the defendant appeared, the former agent consented on the surety’s behalf to resumption of the bond, and the court set aside the forfeiture and reinstated the bond. Over the next year the defendant appeared 23 times, but eventually he again failed to appear, the court forfeited the bond and the clerk mailed a copy of the forfeiture to the surety.

The surety obtained an extension of the 180 day appearance period but was unable to recover the defendant. It then moved to exonerate the bond because the clerk failed to mail notice of the first forfeiture. The trial court denied relief and entered summary judgment. On appeal the Court held that Penal Code §1305(b) requires that the surety be released if the clerk fails to mail notice of forfeiture within 30 days after entry of the forfeiture. The Court distinguished cases in which the surety received actual notice even though the clerk made a mistake such as if the notice was mailed to the wrong party but forwarded to the surety. In this case the surety was entitled to notice of the forfeiture and to decide for itself whether to reassume the bond or surrender the defendant. It was deprived of that opportunity. The Court rejected the County’s argument that vacating the forfeiture when the defendant appeared two days later obviated the need for the notice. The Penal Code requires notice of all forfeitures, not just notice of forfeitures that have not been vacated within the 30 day mailing period. The Court thought that the agent’s authority to consent to reinstatement of the bond was not relevant to the case because the statute required notice of the forfeiture whether the bond was reinstated or not. The Court stated, “Simply put, absent notice within the required period, the trial court lost jurisdiction to enter summary judgment on the bond.”

In People v. Ranger Insurance Co., 46 Cal.Rptr.3d 448 (Cal.App. 2006) the defendant failed to appear but was promptly arrested on the charge in another county. The surety, however, did not move to exonerate the bond, and after the 185 day appearance period expired, the court entered summary judgment against the surety and denied the surety’s motion to vacate the summary judgment and exonerate the bond. The Court of Appeals held that in contrast to subsections (c)(1) and (c)(2) of Penal Code §1305, under subsection (c)(3) if the defendant is arrested in the underlying case outside of the county where the case is located, the trial court is not required to act on its own motion to exonerate the bond, and the bond is not automatically exonerated. Fortunately, the Court also held that the surety did not have to move to exonerate the bond within the appearance period. The trial court had jurisdiction to grant the surety’s motion to vacate the summary judgment and exonerate the bond even though it was filed more than 185 days after mailing of the notice of forfeiture and should have done so pursuant to §1305(c)(3). The purpose of bail had been served, and the county should not receive a windfall. The Court reversed the summary judgment against the surety.

In Liberty Bail Bonds, Inc. v. Garamendi, 46 Cal.Rptr.3d 541 (Cal.App. 2006) the Insurance Department suspended the licenses of Liberty Bail Bonds, Inc and Adnan Yousef when they were charged with criminal violations. Cal. Insurance Code §1748.5 did not require any pre-suspension hearing, and none was provided. The Court affirmed suspension of the individual but held that §1748.5 applied only to individuals and therefore could not be used to suspend the license of Liberty Bail Bonds.

In People v. Safety National Casualty Co., 2006 WL 2699211 (Cal.App. September 20, 2006) the Court held that Penal Code §1306(f) barred enforcement of summary judgments after the passage of two years even though there were post-judgment appellate proceedings during the two year period. Enforcement of the judgments was never stayed while the surety appealed denial of its motions to set aside the judgments, and the State did not initiate enforcement proceedings to collect on the judgments. The Court rejected the State’s argument that the surety’s request to stay the disqualification procedures under Penal Code §1308 estopped it from now invoking the two year limitation of §1306(f). The Court enjoined enforcement of the summary judgments but expressed no opinion on whether the surety could be disqualified from writing bail in California pursuant to Penal Code §1308 for failure to pay the unenforceable judgments.

People v. Ranger Insurance Co., 2006 WL 2884934 (Cal.App. October 12, 2006) set aside judgment on a bail bond for release of the defendant pending appeal and exonerated the surety because the court did not declare the bond forfeited at the first court date after the conviction was affirmed and the defendant failed to surrender to serve his sentence. The Court reasoned that once the Court of Appeals issued the remittitur following affirmance, the defendant’s obligation to surrender was self-executing and there was no requirement that a definite date be set for him to appear. Over two years after the conviction was affirmed, the defendant had not surrendered and the trial court scheduled a hearing. The lawyers appeared but not the defendant. There was no excuse offered for his non-appearance, although it also was not clear he had been given notice, and the court did not declare the bond forfeited. Instead, it continued the case for two weeks to allow the public defender to try to locate him. When he still did not appear at the continued hearing, the court forfeited the bond. The Court of Appeals reversed because the defendant’s failure to surrender within a reasonable time was a breach, and at the first hearing thereafter the court had an opportunity and obligation to forfeit the bond. By failing to do so, it lost jurisdiction to forfeit the bond two weeks later. [Published.] In County of Los Angeles v. Ranger Insurance Company, 2006 WL 3060077 (Cal.App. October 30, 2006) the bail agent’s assistant took a timely motion to extend the period to produce the defendant to the court and tried to file it, but the clerk erroneously refused to accept the motion and told the assistant that summary judgment had already been entered. By the time the bail agent returned from an out of town trip and learned what had happened, the time to request the extension had expired. The surety moved to vacate summary judgment because the clerk’s actions made it impossible for the surety to secure additional time to recover the defendant. The trial court denied the motion, and the Court of Appeal affirmed, because the assistant could have asked to speak to a supervisor, called the bail agent for instructions, or otherwise acted to overcome the error of the clerk. The clerk did not make it “impossible” to comply with the statute. [Not published]. In County of Los Angeles v. Harco National Insurance Co., 2006 WL 3095870 (Cal.App. November 2, 2006) the defendant failed to appear, the court ordered forfeiture of the $1 million bail bond, and the clerk mailed notice of the forfeiture. The surety timely moved for extension of the 180 day appearance period. The defendant was arrested in another state before the court ruled on the motion, but the parties apparently did not realize he had been located. The court denied the motion to extend the appearance period and entered summary judgment on the bond. No appeal was taken from the summary judgment, but after the appeal period expired, the surety moved to set aside the judgment. The trial court denied the motion, and the surety appealed. The Court of Appeal dismissed the appeal because the judgment was final and not subject to collateral attack via a motion to set it aside. The surety’s only remedy was to raise the alleged error in refusing to extend the appearance period by a timely appeal of the summary judgment. In County of Los Angeles v. Ranger Insurance Co., 2006 WL 3334413 (Cal.App. November 17, 2006) the trial court denied the surety’s motion for an extension of the 180 day appearance period. The surety appealed from the eventual summary judgment. The Court found that the surety demonstrated diligent efforts to locate the defendant but not a reasonable likelihood of capture if granted an extension. The trial court did not abuse its discretion in denying extension of the 180 day period, and its judgment forfeiting the bond was affirmed. [Not published.]

People v. Ranger Insurance Co., 2006 WL 3377625 (Cal.App. November 22, 2006) held that “within 15 days from the date of arraignment” in Penal Code §1305(a) means within 15 days from the original date set for arraignment. The defendant was released on bond and ordered to appear on January 22, 2004. The police department twice mailed notices re-scheduling the arraignment, and the defendant appeared as directed on March 25, waived arraignment, and pled not guilty. She later failed to appear and the bond was forfeited. Penal Code §1305(a) provides that the court shall not have jurisdiction to forfeit the bond and the bail shall be released if no complaint is filed “within 15 days from the date of arraignment.”

The surety argued that jurisdiction to forfeit the bond was lost when no complaint had been filed on February 6, 2004 (15 days from the original arraignment date set when the defendant was released). The State argued that the complaint was filed on March 18, before the final arraignment date, and so complied with the statute. The Court held that the police department notices continuing the date did not change the “date of arraignment” for purposes of compliance with the statute, and jurisdiction to forfeit the bond was lost when no complaint has been filed by February 6. The decision suggests a different result if the parties had appeared and the court had continued the arraignment date.

People v. Seneca Insurance Co., 2006 WL 3742988 (Cal.App. December 21, 2006) reversed the trial court and remanded the case for exoneration of the bond. After the defendant failed to appear, the surety discovered that he was in protective custody as a witness for the District Attorney in another case and that the District Attorney had induced him to return to the United States by a guaranty that he would not be arrested on any prior charge. In the appeal, the state agreed that under these circumstances the bond should have been exonerated.

In People v. Lexington National Insurance Co., 54 Cal.Rptr.3d 900 (Cal.App. 2007) the defendant appeared for arraignment without an attorney. The prosecutor said the people wanted to seek remand, and the Judge told the defendant to remain in the courtroom to be interviewed by the public defender’s office for possible representation. The defendant left the courtroom and fled. The surety argued that he had been returned to custody, and thus the bond was exonerated, when the court ordered him to remain in the courtroom. The Court disagreed and held that he was never remanded to the custody of the Sheriff or otherwise taken into custody. The Judge told him to remain as a predicate to determining whether he should be taken back into custody, not as a decision to turn him over to the Sheriff.

People v. Grachian, 2007 WL 602870 (Cal.App. February 28, 2007) was an appeal by the sister of the defendant (and presumably indemnitor of the surety) from a judgment forfeiting the bond. The sister argued that the defendant was in custody in Armenia and would return to California as soon as he was able. She provided various unsworn documents in Armenian with alleged English translations in support of her argument that the 180 day appearance period should have been extended. The Court found that there was no properly supported factual basis to question the trial court’s denial of the extension and so affirmed the judgment of forfeiture.

In People v. Safety National Casualty Corp., 2007 WL 901753 (Cal.App. March 27, 2007) the defendant was placed on probation and was supposed to perform community service in lieu of a fine. She failed to appear to show she had performed the community service, and the court issued a bench warrant. She was arrested, and the surety posted a bond for her release. She failed to appear again, and the bond was forfeited, but she appeared several days later, the bail agent consented to reinstatement of the bond, and the court continued her on probation and ordered her to appear and show she had enrolled in a community service program. She again failed to appear, and the court forfeited the bond. The surety sought to set the forfeiture aside because the bail agent did not receive notice of the forfeiture, and the court denied relief.

On appeal the court did not reach the notice issue because it agreed with the surety that the trial court lost jurisdiction to forfeit the bond when it reinstated the probation. The fact that the bail agent consented on the surety’s behalf did not change the fact that the court had no jurisdiction. The Court stated, “Although Post did not appear on July 5, she did appear on July 12. At the July 12 hearing, the court continued Post on probation when it ordered her to appear on July 19 to provide proof of enrollment in the volunteer program. By returning Post to probation, the bail was exonerated by operation of law. Consequently, the trial court’s order reinstating bail and its pronouncement of forfeiture of bail when Post failed to appear at the next scheduled hearing were void acts, as there was no obligation in existence that could be reinstated or forfeited.” Since this defect was jurisdictional, the surety could raise it for the first time on appeal. [Not published]. People v. Allegheny Casualty Co., 2007 WL 1965244 (Cal. July 9, 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.

The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.

In People v. Ranger Insurance Co., 59 Cal.Rptr.3d 128 (Cal.App. 2007) the surety made a timely motion to extend the 180 day appearance period. The court denied the extension and entered summary judgment against the surety. The surety appealed denial of its motion, but it relied primarily on its actions in locating the defendant in Mexico after expiration of the 180 day period and the fact that the District Attorney declined to seek extradition. The Court characterized the surety’s efforts during the 180 day period as minimal and affirmed both denial of its extension motion and the summary judgment. The court held that to justify an extension of the appearance period, the surety must establish diligent attempts during the period, not after its expiration. The surety could not rely on events after expiration of the appearance period to justify its motion to vacate forfeiture of the bond. In addition, while there was some evidence that the defendant was located in Mexico by the surety’s agent, no law enforcement authority identified the defendant as required by Penal Code §1305(g).

In People v. American Contractors Indemnity Co., 2007 WL 1683823 (Cal.App. June 12, 2007) the defendant failed to appear because he was in custody on new charges in another county. The bail agent located the defendant, still incarcerated in the other county, before the 180 day appearance period expired, but he did nothing to seek exoneration of the bond, seek extension of the appearance period, toll the running of the appearance period, or inform the prosecutor or the court of the defendant’s location. When the appearance period expired, the court entered summary judgment to forfeit the bond. Within six months of the judgment, the surety moved to set it aside and exonerate the bond. The trial court granted the surety relief, but the Court of Appeals reversed. The surety could not rely on the general civil section on relief from judgments, Code of Civil Procedure §473, because that section does not apply to bail, which is governed by its own very specific statutes. The Court rejected the surety’s alternative argument that Penal Code §1305(c)(3) permitted relief with no time limit because it applied only if the defendant were re-arrested in another county on the same charges. Here, he was arrested on new charges. The Court thought that the surety had ample opportunity to obtain relief in compliance with the applicable statutes and held that the surety would have to bear the consequences of its own inaction.

In County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) the defendant failed to appear and the court entered a forfeiture. The surety filed a timely motion to vacate the forfeiture and exonerate the bond pursuant to Cal. Penal Code §1305(g) because its agent detained the defendant in Mexico and took him before a police official, but the Los Angeles prosecutor elected not to seek extradition. The trial court denied the surety’s motion because it thought the documents submitted were hearsay. The Court of Appeals reversed and directed exoneration of the bond. The surety submitted an affidavit from a Zone Coordinator of the Police of the State of Guerrero together with a photograph of the defendant and a copy of his California drivers license. The County objected that the affidavit said it was signed under penalty of perjury but did not add “under the laws of the State of California” and was not authenticated by a U.S. counselor official or a Mexican Judge. The Court held that hearsay was not a proper objection because the affidavit was not offered to prove the truth of the statements but rather to show compliance with §1305(g). The Court stated that the Legislature “undoubtedly knew requiring a bail agent in a foreign country to comply with the kind of technicalities cited by the County would result in few if any bailjumpers ever being returned to California to face trial.” The Court also rejected the County’s objection to the bail agent’s statement that the prosecutor declined to extradite the defendant and pointed out that the County never contested the allegation or asserted that it would extradite the defendant.

People v. Allegheny Casualty Co., 161 P.3d 198 (Cal. 2007) reversed the Court of Appeal decision reported at 2006 WL 137424 (Cal.App. January 19, 2006) and held that in the absence of a record showing that the forfeiture was, or was not, declared in open court, the presumption that judicial proceedings are properly performed will control. The bond was forfeited and judgment entered against the surety. Two years later, the surety moved to set aside the judgment. California Penal Code §1305(a) requires that the forfeiture be declared in open court. There was no transcript of proceedings, and the court clerk’s minutes did not show that the forfeiture was, or was not, declared in open court. The trial court denied the surety’s motion, but the Court of Appeal reversed.

The California Supreme Court held that §1305(a) requires only that the forfeiture to be declared in open court not that the transcript or clerk’s minutes reflect that fact. If the record is silent, the Court rejected an analogy to cases dealing with continuances without forfeiting the bond, which are required to show on the record the excuse for the defendant’s nonappearance, and instead looked to Evidence Code §664 establishing a presumption that official duties have been regularly performed. Since Penal Code §1305(a) requires the forfeiture to be declared in open court, if the record is silent the presumption is that the Judge made such a declaration.

In County of Los Angeles v. Continental Heritage Insurance Co., 2007 WL 2153441 (Cal.App. July 27, 2007) the defendant failed to appear, and in due course summary judgment was entered against the surety. Two years later, the surety moved to set the judgment aside because the court lost jurisdiction over the bond when the defendant did not appear at an earlier hearing and no forfeiture was entered.

There were two co-defendants in the case, and the earlier hearing involved only the other defendant’s mental competency to stand trial. The Court agreed that under Penal Code §1305(a)(4) the court must immediately forfeit the bond if the defendant fails to appear without a sufficient excuse when he or she is lawfully required to be in court, but in this case there was no requirement that the defendant be present for her co-defendant’s competency hearing. Therefore, there was no reason to forfeit her bond for nonappearance at the earlier hearing and no bar to forfeiting it later when she failed to appear for trial.

In People v. Ranger Insurance Co., 2007 WL 2164928 (Cal.App. July 30, 2007) the defendant failed to appear on July 13, 2004, and the bond was forfeited. The surety moved to set the forfeiture aside because the defendant failed to appear on May 17 and July 12, 2004, and the court did not declare forfeitures on either date. The Court of Appeal agreed that if the defendant failed to appear without an excuse on a prior occasion there was no jurisdiction to declare the forfeiture on July 13, and the forfeiture would be set aside.

The State argued that the defendant was present on May 17. The clerk’s minutes were ambiguous, but an affidavit from the district attorney stated that her practice if a defendant did not appear was to note certain things in the case file, and the absence of such notes indicated to her the defendant was present. The Court held that evidence formed a reasonable basis for the trial court to conclude that the defendant was present on May 17.

On July 12, however, she unquestionably did not appear, and no facts were offered to suggest that there may have been an excuse. The trial court stated that she was often late on prior occasions and continued the case for one day. The Court of Appeal held as a matter of law that a record of lateness or excused absences cannot form the basis for a continuance. There was no rational basis for a finding that there may have been an excuse for the defendant’s failure to appear on July 12, and the trial court abused its discretion in not granting the surety’s motion to set aside the forfeiture. The Court vacated the forfeiture and directed that the bond be exonerated.

In People v. Lincoln National Insurance Co., 2007 WL 2258284 (Cal.App. August 8, 2007) the defendant failed to appear, the bond was forfeited, and notice was mailed to the surety. The 185 day appearance period expired on May 26, 2005. In due course a summary judgment was entered against the surety. The defendant, however, was in the custody of the California Department of Corrections during the appearance period, and upon the State’s motion the trial court entered on order on May 26, 2005, that she be returned for arraignment in the criminal case in which the bond was issued. She was returned, and the charges were dismissed by the prosecutor. She was then returned to the Department of Corrections.

The surety moved to set aside summary judgment and exonerate the bond. The State opposed the motion. The State argued that the surety’s motion had not been filed within the 185 day appearance period, and thus the court lacked jurisdiction to set aside the judgment. The trial court granted the surety’s motion, and the State appealed. The Court of Appeal made an extensive review of procedure under Cal. Penal Code §1305 and concluded that the trial court’s order on the last day of the appearance period amounted to a return of the defendant to custody. The Court held that the surety’s motion did not have to be filed within the appearance period if the defendant was returned to custody in the case within the period. The Court affirmed the trial court’s order setting the judgment aside and exonerating the bond. [Not Published].

In People v. International Fidelity Insurance Co., 2007 WL 2484097 (Cal.App. September 5, 2007) the defendant failed to appear, and the bail agent diligently, but unsuccessfully, searched for him. The surety timely moved to extend the 180 day appearance period and submitted a detailed affidavit describing the agent’s recovery efforts. The trial court denied the extension motion and eventually entered summary judgment on the bond. The surety appealed. The issue in the case was the trial court’s belief that good cause to extend the appearance period had not been demonstrated because there was an insufficient showing of likelihood of success if the extension were granted. The Court of Appeal thought that the facts of record showed a series of dead ends and no reason to think that there were other efforts the bail agent could make that would be successful. The Court stated, “we continue to believe that a showing of a reasonable likelihood of recapture is an important circumstance to be considered in determining good cause for an extension. Having the inquiry be prospective as well as retrospective serves the statute’s policy of returning fleeing defendants to custody. . . . Although the good cause showing under section 1305.4 is low, it is not non-existent.” [Not Published].

People v. Bankers Insurance Co., 2007 WL 2793118 (Cal.App. September 27, 2007) reversed the trial court and directed that summary judgment against the surety be vacated. The defendant fled to Mexico. The surety located him there and asked the District Attorney’s office several times whether it would seek extradition. The District Attorney refused to say until the defendant was actually in custody. The surety’s agents brought the defendant before a law enforcement official in Mexico, fingerprinted and photographed the defendant, and had the law enforcement official execute an affidavit in compliance with Cal. Penal Code §1305(g). While the defendant was in custody, the surety attempted to contact various people in the District Attorney’s office and left messages. The District Attorney made no response, and the defendant was released. Shortly before expiration of the 185 day appearance period, the surety moved to vacate the forfeiture and exonerate the bond. The trial court denied the motion and eventually entered summary judgment against the surety. The surety appealed denial of its motion to vacate. The State argued that the affidavit executed by the law enforcement official was technically deficient because it did not say it was executed under the law of California. The Court followed County of Los Angeles v. American Contractors Indemnity Co., 61 Cal.Rptr.3d 367 (Cal.App. 2007) and rejected that argument. The Court also rejected the State’s argument that the District Attorney did not refuse to extradite the defendant. The Court stated, “The People were informed of Barraza’s location by telephone and fax messages. All that is required to compel the prosecuting agency to make an election whether or not to seek extradition is to be informed of a defendant’s location. That was done here. The silence and inaction of the People is deemed an election not to extradite.” [Not published].

In People v. Ranger Insurance Co., 2007 WL 2876092 (Cal.App. October 4, 2007) the defendant appeared before the master calendar control judge who placed the case on standby for trial. The case was called one week later, but the defendant did not appear. His attorney was present and offered no excuse for the defendant’s absence. The court forfeited the bond, and in due course summary judgment was entered against the surety. On appeal, the surety argued that nothing in the record showed the defendant had been informed that he was obligated to appear on the continued date and, therefore, the bond could not be forfeited when he failed to appear. In California, if a defendant fails to appear when he is required to be present and the court does not forfeit the bond, it loses jurisdiction to do so later. On the other hand, if a defendant’s presence is not required, the bond cannot be forfeited. The Court held that by statute a felony defendant’s presence was required at certain points, including trial for the presentation of evidence. The defendant could not waive his presence at those points. Thus, a defendant’s presence can be required by statute as well as by court order, and the date set for trial, the master trail calendar hearing date, is one of the times his presence is required by law. Therefore, the court properly forfeited the bond when the defendant failed to appear at the continued master trial calendar hearing.

In People v. Lexington National Insurance Co., 69 Cal.Rptr.3d 738 (Cal.App. 2007) the defendant failed to appear for sentencing in a case in Yolo County, and the clerk mailed notice of forfeiture to the surety. The 185 day appearance period expired on December 23, 2005. On or before December 21, the defendant was arrested in another county and a hold placed on him for the Yolo County case. The surety filed its motion to vacate the forfeiture and exonerate the bond on December 27. There was no dispute that the surety was entitled to relief on the merits of its motion, the only issue was whether the motion had to be filed within the 185 day appearance period. The Third District Court of Appeal declined to follow the opinion of the Second District in People v. Ranger Insurance Co., 38 Cal. Rptr.3d 511 (Cal.App. 2006) and held that the trial court did not have jurisdiction to grant relief if a motion was not filed within the appearance period. The Court justified its decision by stating, “Thus, although the defendant was in custody in the underlying case within the statutory period, we cannot ignore the plain language of the statute. If the Legislature finds the failure to vacate the forfeiture and exonerate the bond unjust in such cases, it can amend the statute.”

In People v. International Fidelity Insurance Co., 2007 WL 4499080 (Cal.App. December 24, 2007) the defendant failed to appear for sentencing and judgment was entered against the surety. A recovery agent located the defendant in another state and sought help from local law enforcement officials in apprehending him. The local law enforcement personnel reported that the warrant in the NCIC said “no extradition outside of California” but they did not refuse to help the recovery agent. In the meantime, however, the recovery agent lost track of the defendant, who was driving with the recovery agent following him. The surety sought relief under Cal. Penal Code §980, which provides that the court shall exonerate the bond if the appropriate agency fails to enter the warrant in the NCIC system and the court finds that failure prevented the surety from recovering the defendant. The surety argued that the “no extradition” condition was tantamount to not entering the warrant into the system. The Court did not reach this “creative argument” because it held that the record did not show the alleged defect in the warrant prevented arrest of the fugitive. The Court interpreted the record, an affidavit from the recovery agent, as establishing that the local law enforcement officials were willing to help in spite of the no extradition condition on the warrant.

People v. Bankers Insurance Co., 2008 WL 458669 (Cal.App. February 21, 2008) reversed a judgment against the surety. The defendant failed to appear and the clerk noted in the minute entries that the bail bond was forfeited, but the transcript showed that the court did not actually declare the forfeiture. The surety twice located the defendant outside of California, but the prosecutor did not seek extradition. The surety moved to set aside the forfeiture and exonerate the bond and appealed the trial court’s denial of its motion. The Court of Appeal held that the trial court lost jurisdiction to forfeit the bond when it failed to order the forfeiture upon the defendant’s initial failure to appear. The forfeiture has to be declared in open court, not by the clerk later noting a forfeiture in the minutes. The Court vacated the judgment and exonerated the bond and, therefore, did not reach the surety’s alternative argument based on failure to extradite the defendant after the surety located him. [Not Published].

In People v. Lexington National Insurance Co., 2008 WL 542171 (Cal.App. February 29, 2008) the defendant was in custody in another county well within the 180 day appearance period, but the Court nevertheless affirmed summary judgment against the surety. The trial court clerk mailed notice of forfeiture to the surety and bail agent at the addresses stated on the bonds. The surety, however, had moved some four months prior to issuance of the bonds. Although not completely clear, it appeared that the surety gave the court notice of its new address, and after the original notices were returned, the clerk mailed another notice of at least one of the forfeitures to the surety at the new address shown on the returned envelope. The bail agent also moved, and he claimed he never received the clerk’s notice, but the surety notified him of the forfeitures.

The Court held that the original notices complied with the statutory requirements. The Court distinguished cases involving a court ignoring a change of address sent after the bond was issued. Here the bond itself contained the surety’s old address, and there was no obligation for the court to look at change of address records that pre-dated the bond. The bail agent received actual notice of the forfeitures, and could not complain that the notice was not sent to his new address. Since the original notices complied with the statute, they started appearance period. The surety filed its motion to vacate the forfeitures shortly after the appearance period expired (and within 185 days of the second notice). The Court followed its own precedent and held that the motion had to be filed within the appearance period in spite of the contrary decision of the Second District Court of Appeal in People v. Ranger Insurance Co. Since the motion was untimely, it was properly denied. [Not Published].

In County of Los Angeles v. Ranger Insurance Co., 2008 WL 2068068 (CalApp. May 16, 2008) the defendant fled to Mexico. The surety’s agent, along with the Mexican police, located him there, but the agent did not obtain an affidavit from a Mexican law enforcement officer. When the agent in Mexico located the defendant, the surety’s agent in California called the District Attorney’s office and asked for an extradition request. The District Attorney’s office refused. The surety moved to set aside summary judgment and exonerate the bond. The trial court denied the surety’s motion, and the surety appealed. The Court of Appeal affirmed the trial court because Penal Code §1305(g) requires that the defendant be detained in the presence of a local law enforcement officer and identified in an affidavit made by that officer. Here, there was no affidavit from a Mexican law enforcement officer, and it was not clear that the defendant had ever been detained in the presence of the Mexican authorities. [Not published].

In People v. Accredited Surety and Casualty Co., Inc., 2008 WL 2266141 (Cal.App. June 4, 2008) the defendant failed to appear and her bond was forfeited. The bail agent found evidence that she was in Costa Rica, and the prosecutor, bail agent and federal authorities were working to extradite her. The trial court granted one extension of the 185 day appearance period. The surety applied for another extension or in the alternative to toll the running of the period. The trial court denied the surety’s request, and the Court of Appeal affirmed. The Court held that only one extension of the appearance period can be granted. Penal Code §1305(e) permits tolling of the appearance period because of temporary disability of the defendant, but here the defendant was alleged to be at liberty in Costa Rica. There was no evidence she was prevented from appearing by illness, insanity or incarceration, therefore there was no basis for tolling the running of the appearance period. [Not Published].

In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2440442 (Cal.App. June 18, 2008) the defendant posted bail on February 25, and the bond stated on its face that he was to appear on March 3. The Complaint, however, was not filed until March 7, and the court records were silent as to any proceedings on March 3. The defendant appeared for arraignment and throughout the proceedings up to sentencing. When he failed to appear the court declared a forfeiture, and proper notice was given the surety. The trial court denied the surety’s timely motion for extension of the 180 day appearance period, and the surety raised two issues on appeal. First, the surety argued that the bond should have been forfeited when the defendant failed to appear on March 3, and that having failed to declare a forfeiture then the trial court lost the ability to declare one later. The Court rejected the argument because on March 3 the complaint had not been filed so the defendant was not required to appear. The Court also held that the trial court did not abuse its discretion in denying an extension of the appearance period because the surety did not demonstrate either sufficient diligence during the initial period or a sufficient likelihood of success if it was granted an extension.

In People v. Lincoln General Insurance Co., 2008 WL 2690761 (CalApp. July 10, 2008) the defendant failed to appear for his trial readiness conference. His attorney was present but could not explain the defendant’s absence. Nevertheless, at the attorney’s request the court agreed to hold the bench warrant until the preliminary hearing date and did not forfeit the bond. When the defendant failed to appear for the preliminary hearing, the court forfeited the bond. The surety moved for relief because there was no good cause for the defendant’s first failure to appear, and the court had to forfeit the bond at that time. The Court of Appeals agreed and held that the fact that the defense attorney had spoken with the defendant by telephone in the previous week was not good cause for the defendant’s failure to appear. Since the court did not forfeit the bond when the defendant failed to appear for the trial readiness conference, it lost the ability to declare a forfeiture at a later date. [Not published].

In County of Los Angeles v. Fairmont Specialty Group, 2008 WL 2806088 (Cal.App. July 22, 2008) the defendant appeared for a preliminary hearing and pled nolo contendere. The court indicated what his sentence would be, agreed to delay commencement of his jail term and ordered him to appear on a future date. He did not appear, and the court forfeited the bond. The trial court denied the surety’s motion to vacate the forfeiture, and the surety appealed. The issue was whether the defendant had been sentenced or placed on probation at the preliminary hearing, which would have exonerated the bond. The Court reviewed the record of proceedings and concluded, “Where, as here, the court merely indicates its intention regarding sentencing and probation but does not actually pronounce sentencing or grant probation, bail is not exonerated.”

In People v. American Surety Co., 2008 WL 2807228 (Cal.App. July 22, 2008) the defendant was arrested and bond posted. He was directed by the jailor to appear in court on February 19, 2004. There was no record of anything transpiring on February 19, but on February 24 a criminal complaint was filed and he was arraigned on March 4. He appeared as required but at an evidence suppression hearing on April 24, 2006, a representative of the surety attempted to surrender the defendant to the court. The record was not clear what was said or what documents the representative had, but the court continued the matter to April 25 at which time the defendant did not appear. A summary judgment was eventually entered, and the surety appealed.

The surety made three arguments to set aside the judgment. First, the surety claimed that the bond should have been forfeited when the defendant failed to appear on February 19. The Court found that the surety had not carried its burden of showing what happened on February 19, but in any event since the complaint had not yet been filed the bond could not have been forfeited. The case was subject to the 15 day rule of Penal Code §1305, and the complaint was filed within the 15 day period. Second, the surety argued that the bond should have exonerated on April 24 when the bail agent tried to surrender the defendant. The trial court, however, had stated that the representative who appeared had no proof of authority and no certified copy of the bond or surrender certificate and did not express a concern that the defendant was a flight risk. The Court rejected the surety’s argument based on the surety’s failure to comply with the statutory requirements to surrender the defendant. Third, the surety argued that the summary judgment was void because when it was entered there was a pending motion to vacate the forfeiture. The trial court, however, had already denied two motions to vacate the forfeiture. The motion pending when the summary judgment was entered was just an attempt to re-litigate something the court had already decided. Even if it had been an error, however, it would not make the summary judgment void, only voidable, and the summary judgment was properly not set aside because the surety did not follow the rules for surrendering the defendant and exonerating the bond.

County of Los Angeles v. Akseralyan, 2008 WL 2895962 (Cal.App. July 29, 2008) held that the judge’s statement on the record that “bail will be forfeited” met the requirements of Penal Code §1305. The defendant failed to appear, and the judge stated, “He posted a $40,000 bond on the arrest warrant, so bond will be forfeited and a bench warrant will be issued. . . .” The bail agent argued that the statement the bond “will” be forfeited was an indication it would be forfeited at some time in the future not an immediate forfeiture as required by the statute. The Court found that no magic words were necessary and that taken as a whole the statement unequivocally declared the bond forfeited.

In People v. American Contractors Indemnity Co., 2008 WL 2897292 (Cal.App. July 29, 2008) the defendant failed to appear, the court first declared a forfeiture then vacated its order and continued the case. The defendant again failed to appear but the case was continued without any indication in the record that his failure to appear was excused. He appeared on several more court dates but ultimately failed to appear and the bond was forfeited. After one extension of the appearance period, the court denied a further extension and entered summary judgment. On the surety’s appeal, the court did not reach the surety’s claims based on lack of notice after the first, vacated forfeiture or refusal to extend the appearance period because it reversed the judgment and exonerated the bond based on the trial court’s failure to forfeit the bond on the occasion of the second failure to appear. There was no finding of sufficient excuse and nothing in the record to indicate why the defendant failed to appear, therefore the court had to declare a forfeiture in open court or lose jurisdiction to do so at a later date. Since no forfeiture was declared at that time, the later forfeiture was void. [Not Published].

In Amwest Surety Insurance Co. v. Billingslea, 2008 WL 4352599 (Cal.App. September 25, 2008) the defendant failed to appear and a summary judgment was entered against the surety on July 12, 1999. When the surety was placed into liquidation on June 7, 2001, the judgment was still unpaid. The County filed a proof of loss in the Amwest liquidation proceeding, and Amwest demanded indemnity from the bail agent who wrote the bond. There was an arbitration clause in the agreement between Amwest and the agent, and the arbitrator awarded Amwest the amount of the County’s allowed claim plus attorneys fees and costs. Amwest sought to confirm the award, and the agent sought to vacate it. The agent argued that the County’s claim was barred by the two year limitation provision of Penal Code §1306(f) because the proof of claim in the liquidation proceeding was filed more than two years after entry of the summary judgment. The arbitrator disagreed because commencement of the liquidation proceeding within the two year period stayed any enforcement of the judgment and tolled the running of the two year period. The Court of Appeals held that the bail agent had not established any legal basis to set aside the arbitration award, affirmed the judgment for Amwest, and remanded the case to determine the amount of additional appellate attorneys fees to which Amwest was entitled.

In County of Los Angeles v. American Contractors Indemnity Co., 2008 WL 4605908 (Cal.App. October 17, 2008) the defendant failed to appear for a pretrial conference, but the bond apparently had not yet been filed. The court noted in the record that the bond would be forfeited when it was received. The surety’s agent filed the bond almost two months later, and the court entered a minute order forfeiting the bond. Only then did the clerk mail notice of forfeiture to the surety and agent. The court denied the agent’s motion to set aside the forfeiture, and the surety appealed. The County did not contest the appeal, and the Court of Appeals reversed denial of the motion to set aside the forfeiture. The trial court had to declare the bond forfeited in open court as soon as the defendant failed to appear without sufficient excuse. From the record, it appeared that the court failed to make such a declaration, and thus lost jurisdiction to declare a forfeiture later. The record was not entirely clear, however, and the Court noted that in the alternative, if forfeiture was declared in open court at the time of the scheduled pretrial conference, the notice of forfeiture was not mailed within 30 days. That was a separate, independent basis to set aside the forfeiture. In either case, the surety was entitled to relief from the forfeiture. [Not Published].

In People v. International Fidelity Insurance Co., 2008 WL 4681370 (Cal.App. October 23, 2008) the defendant failed to appear on July 27, 2005, because he was home in Naples, Italy with a broken his leg. The court found this to be good cause and continued the hearing to September 20, 2005. He did not appear at the continued hearing, and the court forfeited the bond. Notice was mailed the following day. The surety filed a timely motion to extend the original 185 day appearance period, and the court granted an extension of less than the maximum upon the surety’s representation that it had located the defendant in Naples and was working with an Italian investigator to coordinate his detention. Before the extended appearance period expired, the surety moved to toll the appearance period or extend it because extradition proceedings were under way. The appearance period was extended to September 25, 2006. On September 21 the surety moved to discharge the forfeiture and exonerate the bond because the defendant’s original failure to appear had been without good cause or, in the alternative, to toll the running of the appearance period. The court denied the discharge but agreed to a 180 day tolling. The defendant was not returned to custody, and the court entered summary judgment on May 25, 2007. The surety appealed.

The Court held that the district attorney’s office did not hinder or interfere with the surety’s attempts to recover the defendant. It is the surety’s task, not the prosecutor’s, to return the defendant. The government is not required to take affirmative steps to help the surety, only to refrain from affirmative actions that prevent the surety from performing its obligations. The record did not show any action by the district attorney that hindered the surety. The various delays and failures were attributed to the surety. The Court also rejected the surety’s argument that the appearance period expired on September 21, 2006, and so the extension to September 25 was outside of the court’s jurisdiction and discharged the bond. The Court noted the 5 days because the original notice was mailed and the fact that the first appearance period ended on a Saturday resulted in the next Monday becoming the end date and calculated the end of the extended appearance period as September 25. The surety’s motion filed on September 21 was timely heard and the period extended. The summary judgment was entered well within the permitted 90 days from the end of the adjusted appearance period.

In People v. Fairmont Specialty Group, 2008 WL 4697084 (Cal.App. October 27, 2008) the defendant was released with a notice to appear on October 27. The court clerk rescheduled the appearance to October 31. The defendant failed to appear on October 31, and the court forfeited the bond. The surety obtained one 90 day extension of the appearance period, but the court refused to consider the merits of the surety’s motion for another extension. The Court of Appeals held that the court clerk had the power to reschedule the hearing, the defendant’s appearance was not required on October 27, and the court did not lose jurisdiction by not forfeiting the bond on that date. The trial court’s denial of the surety’s second motion to extend the appearance period, however, was an abuse of discretion because the court did not consider the merits of the request or the facts put forward by the surety to justify the additional extension. The trial court seemed to think that there was time left in the appearance period and that the best way to gain a quick recovery of the defendant was to deny any further extension. The surety’s counsel explained that if the appearance period were not extended there was no reason for the surety to continue looking for the defendant, but the court did not want to hear the facts. The Court of Appeals reversed the judgment and remanded the case for reconsideration of the surety’s motion to extend the appearance period.

In People v. Fairmont Specialty Group, 2008 WL 4907503 (Cal.App. November 17, 2008) the surety obtained a 180 day extension of the appearance period. Before the extended period expired, the surety located the defendant incarcerated in Arizona under his brother’s name. The surety verified by photographs, social security number and date of birth that the person in jail in Arizona was in fact the defendant. The surety moved to toll the running of the extended appearance period based on a “disability” under Penal Code §1305(e) or in the alternative to exonerate the bond because the prosecutor did not seek extradition of the defendant. The trial court denied relief, and the surety appealed. The Court of Appeal rejected the Government’s primary argument that an extension of the appearance period and tolling were mutually exclusive. Given the facts presented and the lower burden of proof to establish a right to tolling, the trial court erred in refusing to toll the period based on the defendant’s continued incarceration during the extended appearance period. The Court affirmed denial of the surety’s alternative exoneration argument because the defendant was not “temporarily detained” by the surety’s agents and, even if incarceration met the temporary detention requirement, the record did not establish that the prosecutor elected not to seek extradition. The Court vacated the summary judgment and remanded the case for further proceedings. [Not Published]. County of Los Angeles v. Fairmont Specialty Group, 2008 WL 4926873 (Cal.App. November 19, 2008) held that a criminal complaint with several different charges all related to the defendant’s arrest for the sale or transportation of marijuana did not increase the surety’s risk and discharge the surety. The Court noted that the bond was conditioned on appearance to answer “any charge” based upon the acts supporting the complaint and that the bond was actually filed after the complaint. The Court also was doubtful of the existence of a common law discharge defense based on acts that increased the surety’s risk. The Court stated, “Fairmont suggests that it has a common law defense to the forfeiture of the bond because the risk was materially increased. We reject this argument. There is no common law defense, and the risk was not increased.” [Not Published].

In People v. Lexington National Insurance Co., 2008 WL 5244275 (Cal.App. December 16, 2008) the defendant failed to appear, the bond was forfeited, and notice mailed to the surety. Seven days later, the defendant appeared before the same judge in another case involving separate facts and charges. The court did not take him into custody on its outstanding bench warrant from the first case. The surety moved to vacate the forfeiture. The trial court denied the motion and entered judgment on the bond. The surety appealed denial of its motion. The Court of Appeals held that Penal Code §1305(c)(1) required the court to vacate forfeiture of the bond if the defendant appeared in court “on the case in which the forfeiture was entered,” but here the appearance was in another case. Therefore, the statute did not require the court to vacate the forfeiture. The Court also found that it was not inequitable to forfeit the bond, and given the volume of criminal cases it would be unrealistic to expect the judge to connect the case before him and the bench warrant issued a week earlier in a separate case. [Not published]. In People v. Fairmont Specialty Group, 2009 WL 33653 (Cal.App. January 7, 2009) the defendant failed to appear without sufficient excuse, and according to the transcript the trial court stated in open court, “Bench warrant forfeited – no. Bench warrant issue. No bail. You can do a letter of reassumption.” The clerk’s minutes said the bond was forfeited, and two days later a notice of forfeiture was mailed to the surety. The trial court refused to set the forfeiture aside, and the surety appealed. The Court of Appeals held that Penal Code §1305(a) required the court to declare the forfeiture in open court so that the surety or agent in attendance would know to commence recovery efforts as promptly as possible. In this case there was a transcript, so the presumption that the court followed proper procedures did not apply, and entering the forfeiture later in the clerk’s minutes was not compliance with the statutory requirement. The trial court’s statement was not equivalent to “bail is forfeited” and did not comply with the statute. Therefore, the court lost jurisdiction to forfeit the bond. The Court of Appeals reversed the trial court and ordered exoneration of the bond. [Not Published].

In People v. American Surety Co., 2009 WL 131995 (Cal.App. January 21, 2009) the defendant failed to appear and the trial court declared the bond forfeited. Later that day, the defendant appeared and the court reinstated the bond. No notices of the forfeiture or the reinstatement were sent to the surety or agent. Several months later, the defendant failed to appear for sentencing, and the court again forfeited the bond and the notices were sent. The court denied the surety’s motion to set aside the forfeiture and exonerate the bond, and the surety appealed. The Court of Appeals held that the failure to give the surety and agent notice of the original forfeiture and reinstatement deprived the court of jurisdiction to forfeit the bond months later. The surety and agent are entitled to notice within 30 days of forfeiture so they can determine how to proceed with respect to the bond. The failure to give notice pursuant to Penal Code §1305(a) deprived them of the opportunity to consider any possible increased risk. [Not Published].

In County of Los Angeles v. International Fidelity Insurance Co., 2009 WL 215147 (Cal.App. January 30, 2009) the defendant failed to appear and the court Commissioner declared the bond forfeited. Summary judgment was eventually entered against the surety, and the surety moved to vacate it and exonerate the bond. The trial court denied the motion, and the surety appealed. The Court rejected the surety’s argument that “court” in Penal Code §1305(a) meant a judge not a commissioner and affirmed denial of the motion. The Court held that bail forfeiture was an ex parte proceeding that commissioners were authorized to perform. The Court noted that Court of Appeals precedent from 1971 had so held, and the Legislature had not seen fit to amend the statute to change that result. [Not Published].

In People v. Bankers Insurance Co., 2009 WL 354200 (Cal.App. February 11, 2009) the defendant failed to appear, and the judge said “we’ll keep the bail bond and issue a warrant.” The clerk’s minutes indicated that the bond was forfeited, and notice was mailed to the surety. The surety eventually moved to set aside the forfeiture because the court lost jurisdiction when it failed to forfeit the bond in open court. The trial court denied the motion, and the surety appealed. The Court of Appeal noted that the statutory procedure had to be strictly followed and that all the statute required was for the judge to say, in open court, “the bond is forfeited.” While other words can be used, an ambiguous statement is insufficient. The majority of the Court of Appeals held that “we’ll keep the bail bond” was not close enough to “the bond is forfeited” and reversed the trial court. The dissenting Justice would have affirmed because “we’ll keep the bail bond” was, in context, not subject to any interpretation other than that the bond was forfeited. [Not published].

In County of Los Angeles v. Lexington National Insurance Co., 2009 WL 446135 (Cal.App. February 24, 2009) the agent located the defendant in Mexico and brought him to a police station to be identified. The surety contacted the prosecutor’s office, but no decision was made to seek, or not to seek, extradition. The 180 day appearance period was extended, but at the end of the extension the court entered judgment against the surety, and the surety appealed, but the surety did not obtain a reporter’s transcript of the court hearing. The Court of Appeal held that without a transcript it could not determine what took place or the basis for the trial court’s ruling, and accordingly could not hold that the trial court erred. The Court affirmed the judgment. [Not published].

In People v. Fairmont Specialty Group, 2009 WL 961525 (Cal.App. April 9, 2009) the surety and agent did not receive notice of the bond’s forfeiture. The clerk certified that the notices had been mailed. Penal Code §1305(b) required that the notices be mailed to the agent and surety at the addresses shown on the bond. The Court held that the evidence was consistent with the clerk mailing the notices and the Postal Service failing to deliver them, and therefore the trail court did not abuse its discretion in denying relief. The Court affirmed the trial court’s denial of the surety’s motion to vacate the forfeiture. [Not Published].

In County of Los Angeles v. Indiana Lumbermens Mutual Insurance Co., 2009 WL 1039580 (Cal.App. April 20, 2009) the surety’s recovery agent filed a motion to extend the appearance period on the last possible day, but he did not include a declaration or affidavit showing good cause for the extension. He filed such a declaration 24 days later after the defendant had been located in jail in another county. The defendant, however, had been arrested after expiration of the initial appearance period. The Court held that a declaration showing good cause for the extension is a statutorily required part of a motion to extend the appearance period and that the motion in this case was untimely because the declaration was filed after the initial period expired. Since the period was not extended and the defendant was not recovered during the initial period, the Court affirmed the summary judgment against the surety.

People of the State of Colorado v. Hoover, 2005 WL 674642 (Colo. App. March 24, 2005) held that a post-conviction bond pending appeal can be "cash only." The defendant was convicted of multiple counts of securities fraud and sentenced to 100 years in prison. He applied for bond pending appeal, and the trial court set it at $1 million cash only. He asked the appellate court to allow a $1 million surety bond. The Court held that the constitutional right to bail applied only prior to conviction and that release on bond pending appeal was purely a question of statute. The statute gave the trial court considerable discretion to deny bail or to set conditions including personal recognizance, security by cash or deposit of property or security by an approved surety. The trial court's decision was not an abuse of discretion and was affirmed.

Fullerton v. County Court, 2005 WL 1038988 (Colo. App. April 5, 2005) held that a "cash only" bond was within the trial court's discretion under the Uniform Criminal Extradition Act. The court discussed cases interpreting "sufficient sureties" under various state constitutions and held that "with such sufficient sureties and in such sum as such judge deems proper" in §16-19-117(1), C.R.S. gave the trial court discretion to require a "cash only" bond.

In People v. Escalera, 121 P.3d 306 (Colo. App. 2005) the defendant appeared once and failed to appear for a second hearing because he was in jail in another county. Before the trial date, the other county turned him over to INS, which deported him. When he failed to appear for trial, the court forfeited the bond, later entered judgment on the forfeiture and denied the surety’s motion to set the judgment aside. The applicable Colorado statute, §16-4-112, C.R.S., authorizes setting such a judgment aside “if it appears that justice so requires.” The Court of Appeals held that the trial court abused its discretion and ordered the judgment set aside. The Court noted that the surety had no reason to know the defendant was in the United State illegally and that an arm of the state, the other county sheriff, played a role in the deportation by turning the defendant over to INS.

People v. Diaz-Garcia, 159 P.3d 679 (Colo.App. 2006) held that the surety was not entitled to relief from a judgment forfeiting the bond. The defendant fled to Mexico, and the United States refused to permit him to re-enter the U.S. The Court held that §16-4- 108, C.R.S. exonerating the surety if the defendant was incarcerated in a foreign jurisdiction did not entitle the surety to relief because it did not apply to compensated sureties and did not grant post judgment relief. The Court thought that the applicable statute was §16-4-112, which authorizes relief from a judgment of forfeiture “if it appears that justice so requires.” The Court reviewed the equitable factors to be considered and concluded that they did not favor relief from the judgment. The Court stated, “Surety here is seeking to carve out a blanket exception to bond liability for illegal aliens who flee the country and fail to appear in court. The risk of such flight is, however, assumed by sureties when they post bail for illegal aliens.”

In People v. Rickman, 178 P.3d 1202 (Colo. 2008) the defendant, while released on bond, tried to purchase a firearm. In doing so, he lied on the purchase application and eventually pled guilty to a federal felony for making the false statement. He was also convicted in state court of two counts of violating conditions of his bail bond, and he appealed. The Court of Appeals reversed, and the State appealed. The Colorado Supreme Court affirmed the Court of Appeals as to one count but reversed as to the other. When the defendant was released, the court did not set the conditions of his bail. The pretrial services agency set the conditions by checking boxes on a form approved by the court. Although the trial court had authority to set the conditions, it could not delegate its authority to the pretrial services agency. Therefore, the conditions which he violated, to not possess firearms and to not commit a felony, could not be imposed by the pretrial services agency. However, the prohibition on committing a felony was also a condition of his release by statute. Therefore, the Supreme Court held that he could not be convicted of violating the conditions of his bail by possessing the firearm but could be convicted based on committing a felony.

In People v. Chavarria-Sanchez, 2008 WL 540624 (Colo.App. March 5, 2009) the Court construed a 2007 statute, §16-3-503 C.R.S. 2008, that addressed bail for persons illegally present in the United States. The statute provided that if the defendant is deported, the court will return the documents signed by the bail agent and the bail agent will surrender the fees received. In effect, if the bond was provided by a commercial surety, deportation of the defendant does not cause forfeiture of the bond amount. Instead, the bond transaction is rescinded, and the state gets the fees paid by or on behalf of the defendant. The Court held that returning the surety’s documents meant there could be no forfeiture of the bond, but it also held that the statute did not apply retroactively. Since the bond was posted and the defendant failed to appear before June 1, 2007, when the statute took effect, the surety was not entitled to relief. A dissent argued that the statute was procedural and should have been applied retroactively.

State v. Jacobs, 2003 WL 23112746 (Conn. Super. December 12, 2003) is a muddled opinion in which the court granted the surety's summary judgment motion discharging its bail obligation. The defendant was originally released on a $10,000 bond. After conviction, another $140,000 bond was required. The case involved liability on the $140,000 bond.

The defendant did not appear for sentencing. Instead of issuing a warrant and continuing sentencing, the court ordered the bond forfeited and then sentenced the defendant, in absentia, to 20 years in prison. When the clerk called the case, the surety on the original $10,000 bond was named instead of the surety on the $140,000 bond, but the court rejected that error as a basis to discharge the surety. The court did, however, grant the surety' s summary judgment motion because Conn. Gen. Stats. §54-66a(8) provides that a bond is automatically terminated when the defendant is sentenced and because the substantial sentence imposed increased the surety's risk by decreasing its chance to avoid liability by producing the defendant within the six month period following forfeiture. State of Connecticut v. Prazeres, 2004 WL 575060 (Conn. Super. February 27, 2004) held that the surety, Capital Bonding Corporation, was entitled to remission of 30% of the forfeited bail because the defendant was returned to custody within 270 days. The opinion discusses the schedule of amounts to be remitted pursuant to Conn. Gen. Stats. §54-65a and Practice Book §38-22.

International Fidelity Insurance Co. v. Spencer, 2005 WL 2496843 (Conn. Super. September 8, 2005) held that the statute of frauds did not bar a claim by the surety against the defendant's mother who made an oral promise to indemnify the surety. The court found that her agreement was an original, primary promise not a promise to answer for the debt or default of her son.

In Tirreno v. Mott, 2006 WL 2806609 (D.Conn. September 29, 2006) the plaintiffs sued several bail enforcement agents, a bail agent and a surety for alleged torts in seeking to recover the bond principal. The court granted the surety summary judgment dismissing the suit because there was no evidence to support a finding that the bail agent or bail recovery agents were acting as agents of the surety. The court discussed and rejected arguments based on the surety’s agreement with the bail agent, a Connecticut statute and the common law doctrine of nondelegable duties. The court held that there were genuine issues of fact precluding summary judgment for the other defendants.

Surety Administrators, Inc. v. Guadalupe (In Re Guadalupe), 2007 WL 766233 (D.Conn. March 15, 2007) affirmed judgment of the bankruptcy court disallowing the $791,038.38 claim of Capitol Bonding Corporation, and of Harco Insurance Co. and Surety Administrators, Inc. as Capitol Bonding’s successors. The debtor was a sub-agent whose contract with Capitol Bonding named Vincent Smith as the supervising agent. The contract provided that as long as the debtor acted in accordance with the agreement (essentially did what the supervising agent told him to do) he had no responsibility for bond forfeitures. The debtor testified that he did as he was instructed, and that on the few occasions that Capitol Bonding sent him an invoice, he called Smith and he did not hear any more about it. The bankruptcy court credited his testimony and found that he did not breach the agreement and so owed nothing to the creditors. The U.S. District Court affirmed and commented on the lack of invoices or records one would expect if in fact the debtor owed Capitol Bonding the large sums claimed.

In State v. Odell, 2008 WL 2068197 (Conn.Super. April 25, 2008) the mother of the defendant pledged real property as surety for her son’s appearance. At a time when he had not defaulted, she asked the court to revoke the bonds because he had moved out of her house and had little contact with her. The court discussed the right of a surety to seize and surrender the defendant and its statutory right to inform the court that it believed the defendant intended to abscond and to ask the court to order the defendant’s arrest. The surety in this case, however, did neither. She did not surrender the defendant or tell the court that he was likely to flee and ask for his arrest. Under these circumstances, there was no basis for the court to revoke the bonds, and the surety’s motion was denied.

In Hernandez v. Carbone, 2008 WL 2900932 (D.Conn. July 29, 2008) an indigent defendant, against whom charges were ultimately dropped, spent a year in jail because he could not post a $100,000 bond. He sued, among others, the Executive Director of the Connecticut Court Support Services Division (CSSD) arguing that requiring cash or surety bonds from an indigent defendant was unconstitutional. The court granted the Executive Director’s motion to dismiss. The trial court, not CSSD, set the $100,000 bail and refused to reduce it. No act of the Executive Director, therefore, caused the alleged harm to the plaintiff for purposes of his federal civil rights claims. The court declined to exercise jurisdiction over any state law claims or to interfere with the administration of bail by the Connecticut courts because the state court system provided more than adequate opportunities for a defendant to challenge his bail. The court was careful, however, to say that it was not deciding the merits of the plaintiff’s claims and he was free to assert them in a state court suit.

In State of Delaware v. Jefferson, 2003 WL 22931392 (Del Common Pleas October 10, 2003) the defendant failed to appear and her bond was forfeited. A few days later she was brought before the court. The court denied a motion to vacate the forfeiture because no evidence was presented to show that the bondsman made any effort to locate the defendant and return her to the court.

Al Estes Bonding v. Pinellas County Board of County Commissioners, 845 So.2d 254 (Fla. 2nd DCA 2003) was a procedural victory but a substantive defeat. The court held that the bondsman could pay the forfeiture and appeal without having a judgment entered against the surety. On the merits of the appeal, however, the court rejected the argument that the forfeiture should be set aside because the defendant was in federal custody, thus preventing the bondsman from producing him. There was no evidence he had been in federal custody at the time he failed to appear, and none of the statutory grounds for discharge under section 903.26(6), Fla. Stats. were met.

In Allegheny Casualty Co. v. State, 2003 WL 21749533 (Fla. 4th DCA July 30, 2003) the court refused to remit a forfeited bond. The defendant failed to appear and fled to Haiti. The surety located her there, but under the relevant treaty she allegedly could not be extradited. The court found that the surety did not meet the requirement in §903.28(2), Fla. Stat. that the surety "has substantially attempted to procure or cause the apprehension or surrender of the defendant." The court distinguished cases in which the state refused to seek extradition after the surety located the principal in another country and noted that the defendant fled to Haiti some three months after the bond forfeiture. In effect, the court thought the surety bore a sufficient part of the blame for the failure to return the defendant that the forfeiture should not be remitted.

Section 903.28, Fla. Stats., allows remission of bail bond forfeitures if the defendant surrenders or is apprehended within 2 years of the forfeiture. The percentage of the forfeiture remitted depends on the length of time between the forfeiture and the surrender or apprehension. In Board of Commissioners of Brevard County v. Barber Bonding Agency, 2003 WL 22213328 (Fla. 5th DCA September 26, 2003) the defendant was arrested in another county within 270 days of forfeiture but not returned to Brevard County until over one year after forfeiture. The statute provides for remission of up to 90% if apprehension is within 270 days but of up to 50% if apprehension is between one and two years after forfeiture. The court of appeals held that the date of “apprehension” is the date the defendant is taken into custody in another jurisdiction, not the date of return to custody in the jurisdiction where the bond was filed, and therefore affirmed remission of 90% of the forfeiture. The decision was by a two to one vote, and the dissenting judge suggested the issue should be certified to the Florida Supreme Court as a matter of public importance.

In Carr v. Lammie, 2004 WL 507570 (Fla. 2ndDCA March 17, 2004) a defendant was recovered and $28,500 of the forfeited bond proceeds remitted. The seller and purchaser of the bail bond agency both claimed the right to receive the money. The surety had been reimbursed in part from the agency's build up fund and in part from the purchase price of the agency. The surety did not claim the remitted money for itself. The Court held that the right to receive the money was an asset of the agency transferred to the purchaser along with the other agency assets.

In Integrity Bail Bonds v. Pinellas County Board of County Commissioners, 2004 WL 784734 (Fla. App. April 14, 2004) the State, after the bond was written, increased the offense charged from a third degree felony to a second degree felony. The Court held that this change, which increased the potential maximum sentence from 5 years to 15 years, was a substantial change that increased the likelihood the defendant would abscond. Therefore, the bond was discharged, and the trial court erred in not setting aside the forfeiture ("estreature") entered after the defendant failed to appear. The Court rejected the County's argument that the surety had a duty to object after receiving notice of the increased charge.

Green v. Abony Bail Bond, 316 F. Supp.2d 1254 (M.D. Fla. 2004) is a suit for personal injuries allegedly inflicted by agents and employees of the surety and bail agent in the process of recovering the bond principal who had "inadvertently failed to appear." The case was filed in federal court on the theory that the actions of the defendants violated the plaintiffs' civil rights pursuant to 42 U.S.C. §1983. The court dismissed the case without prejudice to re-filing in state court because the defendants were not "state actors" for purposes of §1983.

In A-Alternative Release Bail Bonds v. Martin County, 882 So.2d 414 (Fla. App. 2004) the defendant was arrested for simple cocaine trafficking for which the mandatory minimum sentence is 5 years. The prosecutor filed an information charging him with trafficking in an amount greater than 400 grams which carried a mandatory minimum sentence of 15 years. Neither the bail agent nor the state official who reviewed and accepted the bond were aware of the increased charge, and the bond described the offense as “trafficking in cocaine.” The Court reversed an order escheating the bond because the offense for which the defendant failed to appear was significantly different than the one described on the face of the bond. Although the description can be in general terms without technical detail, it cannot describe a different offense. The dissenting Judge thought the trial court should have been affirmed because the information was filed before the bond was issued and therefore “trafficking in cocaine” should be read as a general description of the 400 gram offense. Even the dissent acknowledged that if the offense were increased, without the surety’s consent, after the bond was written the bond would have been discharged. [Probably published].

Allegheny Casualty Company v. Roche Surety, Inc., 885 So.2d 1016 (Fla. App. 2004) was a dispute over a build-up fund. The bail agent involved had a fund on deposit for Allegheny’s benefit. The bail agent ceased doing business with Allegheny and entered into a contract with Roche and assigned the agent’s rights in the build-up fund to Roche. Allegheny refused to release the fund on the ground that its liability on any and all bonds had not been discharged. The trial court granted Roche summary judgment and attorneys fees. The six allegedly remaining Allegheny bonds dated from 1994 to 1997. The trial court held that any possible liability on the bonds was time barred under §903.31(1), Fla. Stats., which states that an original appearance bond expires 36 months after it is posted. Allegheny argued that the 36 month provision did not apply because it was added to the statute in 1999 after the bonds were written.

The Court of Appeals agreed that the 36 month provision did not apply retroactively. It rejected Allegheny’s arguments that the bail agent breached the contract (thus discharging any obligation to return the build-up fund) by writing bonds for another surety and by assigning the build-up fund to Roche, and that the court lacked jurisdiction because the contract said exclusive jurisdiction was in New Jersey. The Court vacated the attorneys fee award because the trial court did not follow the required procedures but indicated the trial court could revisit the issue upon remand. The case was remanded to determine whether Allegheny had any remaining bond liability.

Fast Release Bail Bonds, Inc. v. State, 895 So.2d 448 (Fla. 4th DCA 2005) was a 2 to 1 opinion affirming forfeiture of several bonds. The defendant failed to appear for a scheduled hearing, and the court estreated [the Florida word for forfeited] the bonds and issued a "no bond" capias [bench warrant?] for the defendant. The sureties, however, had not been given proper notice of the hearing, and the trial court set aside the estreature, noticed another hearing, but refused to cancel the capias. The defendant again failed to appear and the court estreated the bonds for the second time. The sureties argued that the defendant fled when he learned of the "no bond" capias and that their bonds should be exonerated because the court interfered with their control over the defendant by refusing to cancel the capias. The majority disagreed and held that the capias was correctly issued when the defendant, who had been properly noticed, failed to appear at the first hearing and that the defendant's decision to flee was his own and not attributable to the capias. The dissenting judge would have exonerated the bonds because the prospect of pre-trial incarceration represented by the no bond capias materially increased the risk that the defendant would flee.

Roche Surety and Casualty Co., Inc. v. Department of Financial Services, Office of Insurance Regulation, 895 So.2d 1139 (Fla. App. 2005) reversed the Department's fine for willful failure to return a former agent's build-up fund. The surety and the former agent were engaged in litigation in the Florida Circuit Court, and the Circuit Court entered an Order that the build-up fund be held pending the outcome of that case. The Department's administrative law judge found that the existence of the Circuit Court Order meant that the surety's refusal to return the build-up fund was not a "willful" violation of §648.29, Fla. Stat. The Department re-classified that finding as a conclusion of law and disregarded it. There was a delay of several months between the hearing in the Circuit Court (at which the former agent consented to the holding of the build-up fund) and the Circuit Court's entry of its written Order. The Department imposed a fine based on the proposition that retaining the build-up fund during this delay period, i.e. prior to entry of the written Order, was a willful violation. The Court of Appeals reversed and held that willfulness was a question of fact on which the Department was bound by the administrative law judge's finding.

Surety v. State, 894 So.2d 301 (Fla. App. 2005) in a one paragraph decision reversed estreature of the bond because the surety was not given the 72 hour notice of the defendant's appearance as required by section 903.26(1)(b), Fla. Stats.

Monroe County Bail Bonds v. State, 2004 WL 3262883 (Fla. Cir. Ct. December 6, 2004) is an opinion from a Florida Circuit Court (which is probably why it is dated in 2004 but only now reaching Westlaw). The defendant failed to appear, but the surety located him in Virginia. The state refused to issue a warrant for his arrest outside of Florida. The government and the surety agreed to a stipulated order to set aside the forfeiture and exonerate the bond. The county court refused to enter the order. The surety appealed to the circuit court which held that payment of the forfeiture was a precondition to relief, that even if the forfeiture was paid, relief could only be granted if the motion was brought before the judge within 60 days after the notice of forfeiture was mailed. The court also thought that the surety could not be entitled to remission of any part of the forfeited amount since it had not paid the forfeiture and that no remission was due based on the mere fact that the defendant was outside of Florida unless there was proof the surety had seized him but could not have him returned to Florida because of the state's limit on the warrant. This decision seems to be one judge's explanation of how he thinks sections 903.26, 903.27 and 903.28, Fla. Stats., ought to work.

In Mike Snapp Bail Bonds v. Orange County, 913 So.2d 88 (Fla. App. 2005) the bail agent did what the statute required for remission of the forfeiture. The defendant was recovered thirteen days after the forfeiture notice, and the bail agent paid the costs to return the defendant. The state admitted that the prosecution was not hindered. The trial court nevertheless refused to remit the forfeiture because there was no proof in the court file that the transportation costs were paid. The bail agent paid the forfeiture and sought rehearing on remission of the forfeiture. The trial court again denied relief, and the bail agent appealed. The Court held that the statute does not require the surety to have filed a receipt or proof of payment of transportation costs to be entitled to remission of the forfeiture (the State did not contest that the transportation costs actually were paid, and the bail agent had a letter to that effect from the sheriff). The Court of Appeals reversed the judgment and remanded the case with directions that the amount forfeited plus interest be returned to the bail agent.

In Universal Bail Bonds, Inc. v. State, 929 So.2d 697 (Fla.App. 2006) the court conditioned release of the defendant on electronic monitoring by the Miami-Dade County Corrections and Rehabilitation Department and a $100,000 bond. The bond, however, was conditioned only on appearance and did not mention electronic monitoring. Within a few days of release, the defendant removed the electronic monitoring device and absconded, but the Department neglected to tell the court or the bail agent for over a month. The defendant did not appear and the bond was forfeited. The surety argued that the bond was discharged because the Department's failure to notify the court or the agent that the defendant had absconded altered the terms of the bail contract to the prejudice of the surety. The Court of Appeals disagreed. The Court held that the bond contract remanded custody of the defendant to the surety and made the surety responsible for the defendant's appearance. The Department's failure in its independent duty to the court did not interfere with the surety's custody or control of the defendant.

Curleycan Bail Bonds, Inc. v. State, 933 So.2d 122 (Fla.App. 2006) denied relief to the surety. The defendant fled to Venezuela, which refused to extradite him. The Court thought that the surety ran the risk the defendant would flee and should have taken precautions to keep him in Florida.

In State v. Sunshine State Bail Bonds, Inc., 967 So.2d 1084 (Fla.App. 2007) the defendant failed to appear for trial and a notice of forfeiture was filed. The surety paid the forfeiture. Six months later, the defendant was shot and killed by law enforcement authorities in another state. The trial court granted the surety an 80% remission, and the State appealed. The Court of Appeals held that no remission was justified under §908.23, Florida Statutes. The Court recognized that the defendant’s death made it impossible for the surety to return him to Florida and surrender him for trial, but the court relied on cases denying relief when other circumstances prevented the return of the defendant. The Court stated, “the doctrine of impossibility of performance does not excuse [the surety] of its obligation to take precautionary action to prevent [defendant] from leaving the jurisdiction, even though the actions of a third party prevented it from bringing [defendant] back to the jurisdiction.”

In Rusty Bail Bonds, Inc. v. Clerk of Circuit Court, Monroe County, 2008 WL 451784 (Fla.App. January 22, 2008) the Court dismissed the appeal because there was neither a final judgment of forfeiture nor payment of the amount of the bond. The dismissal was without prejudice to permit the bail agent to file another appeal after it satisfies one of these preconditions.

In Continental Heritage Insurance Co. v. State, 981 So.2d 583 (Fla.App. 2008) the First District Court of Appeal held that the 72 hour notice to the surety of the defendant’s required appearance did not need to state that the defendant’s appearance was required. The notices were timely sent and stated the date, time and place scheduled for the defendants’ arraignments, but they did not explicitly say that the defendants were required to be present. The defendants failed to appear, and the court forfeited the bonds. Section 903.26(b), Florida Statutes, states that a bail bond can be forfeited only if the clerk gave the surety at least 72 hours notice “before the time of the required appearance of the defendant.” The Court held that “The failure of the notice to specifically state that the defendants’ presence was required does not render it defective.” The Court certified that its holding conflicted with two contrary decisions of the Fourth District Court of Appeal.

In State ex rel. Gardner v. Allstar Bail Bonds, 983 So.2d 1218 (Fla.App. 2008) the defendant failed to appear and the surety paid the forfeiture. Approximately 15 months later, the surety learned that the defendant had died. The surety sought partial remission of the forfeiture. The trial court granted a 50% remission, which the surety would have been entitled to if it had located and returned the defendant. The State appealed. The issue was whether the defendant’s death, which made it impossible to return him to custody, justified granting partial remission of the forfeiture. The record showed that the surety diligently attempted to locate him, and that the delay did not thwart the State’s prosecution other than the obvious fact that it could no longer prosecute him once he was deceased.

In a 2 to 1 decision, the Fifth District Court of Appeal held that no remission should have been granted. The surety did not return the defendant, the State did not obstruct the surety’s efforts, and therefore the surety was not entitled to remission under the statute. The dissenting Justice emphasized that the bond was a contract between the State, the surety, and the defendant, the statute was read into that contract, and the statute gave the surety a right to partial remission if it retuned the defendant within two years. Since his death (treated as an Act of God) made the surety’s performance impossible, it was entitled to relief.

In Continental Heritage Insurance Co. v. State, 990 So.2d 610 (Fla.App. 2008) the defendant failed to appear at his arraignment and the bond was estreated. At the arraignment the state also filed an additional felony charge. The surety argued that the additional charge increased the surety’s risk without its consent and exonerated the bond. The Court recognized that in a proper case an additional charge could discharge the surety, but in this case the new charge was filed after the defendant had already failed to appear. There was no evidence that the defendant knew of the new charge, and the Court affirmed estreature of the bond.

In Reliable Bonding Co. v. State, 2003 WL 21544201 (Ga. App. July 10, 2003) the surety received notice to appear and show cause why a judgment of forfeiture should not be entered but no notice of the actual judgment. The court refused to set the judgment aside finding no statutory right to notice of entry of the judgment.

In Re Geeslin, 2003 WL 21756072 (Bankr. M.D. Ga. July 17, 2003) found that a professional bail bondsman's bond obligation was discharged in his bankruptcy proceeding. The state attempted to collect on the forfeited bond, and the bankruptcy court held that it was in violation of the automatic stay, §362 of the Bankruptcy Code, and of the injunction against collecting discharged debts. The court suggested that the result might be different if the bondsman was himself the criminal defendant or a friend or close relative of the defendant.

A.A. Professional Bail v. State, 592 S.E.2d 866 (Ga. App. 2004) held that the surety was discharged because the state failed to try the defendant within one year of the date the bond was posted as required by OCGA §17-6-31(e). The statute contains an exception if the failure to prosecute is the defendant's fault. The delay in the case was caused by the defendant's demand for a jury trial, but the court held that was exercise of a right not "fault." Note that this case involved a misdemeanor and that the statutory period for trial of a felony is two years.

Skandalakis v. Geeslin, 2004 WL 43165 (M.D. Ga. January 5, 2004) held that the Eleventh Amendment to the Constitution bars a purported contempt proceeding by an individual bail bond surety against the state district attorney for allegedly violating the automatic stay of the Bankruptcy Code by attempting to collect on a forfeited bail bond after the surety filed for bankruptcy.

A.A. Professional Bail v. State, 630 So.2d 620 (Ga.App. 2006) held that the State's failure to try the defendant within one year of the date he was released on bail required exoneration of the bond pursuant to OCGA §17-6-31(e). The statute contains an exception if the delay is due to the defendant's "fault," but an action that the defendant has a legal right to take is not "fault." In this case, the trail was not even scheduled until almost two years after the defendant's release, and the State conceded that forfeiture of the bond should be set aside.

In Confidential Bonding Company v. State of Georgia, 2006 WL 1529326 (Ga.App. June 6, 2006) the bail agent paid 5% of the amount of the bonds and sought remission of the remaining 95%. In each of four cases, law enforcement authorities had re-arrested the defendants, apparently without help from the bail agent or surety. The Court of Appeals held that under O.C.G. §17-6-72(d) the surety can seek remission or reduction within 120 days of forfeiture only if it either pays the entire forfeiture and shows the defendant is in custody of the Sheriff ("if the surety locates the defendant in the custody of the sheriff") or itself surrenders the defendant or locates the defendant in custody in another jurisdiction. In this case the bail agent did neither and so was entitled to no relief. If the bail agent had paid the amount of the bonds, it would probably have been entitled to 95% back, but because it paid only 5% it lost the entire amount.

In State v. A 24 Hour Bail Bonding, 634 S.E.2d 99 (Ga.App. 2006) the trial court granted relief from forfeiture pursuant to O.C.G. §17-6-31(d)(2) which gives the court discretion to release the surety if the defendant used a false name when bound over and the surety establishes that it acted diligently. The Court decided several evidentiary issues adversely to the bail agent and then reversed the judgment because there was no evidence the defendant used a false name.

Joe Ray Bonding Company, Inc. v. State, 2007 WL 925896 (Ga.App. March 29, 2007) held that the surety was not entitled to remission under O.C.G. §17-6-72(d)(1) because the surety did not play any role in the recovery or prosecution of the defendant. The bond was forfeited and the surety paid the judgment. Several months later, the defendant was arrested on the court’s bench warrant and incarcerated in the same county where the charge was pending. The surety applied for a 50% remission under §17-6-72(d)(1), but the court interpreted the statute to require the surety either to recover the defendant or to identify a defendant already in custody or otherwise facilitate bringing the defendant to justice.

In State v. Free At Last Bail Bonds, 647 S.E.2d 402 (Ga.App. 2007) the defendant failed to appear and a forfeiture judgment was entered and paid by the surety. Approximately five months after payment of the judgment, the surety located the defendant and surrendered him to the Sheriff. The surety then applied for remission of 50% of the forfeiture pursuant to O.C.G. §17-6-72(d)(1). The trial court granted the request, and the State appealed on the ground that the application for remission had to be filed within 120 days from payment of the judgment.

While the first part of the statute required application within 120 days of payment, the last part said that if the defendant were recovered within two years of the judgment, the surety was entitled to 50% remission and the application “shall be filed no later than 30 days following the expiration of the two-year period following the date of judgment.” The surety’s application was filed after the 120 day period but within the two years plus 30 days, so the Court had to resolve the apparent contradiction in the statute. The Court looked to the purpose of the statute and its legislative history and concluded that for a 50% remission following recovery of the defendant, the latter time period controlled and the surety’s application was timely. The Court affirmed the 50% remission.

In Troup Bonding Company, Inc. v. State, 663 S.E.2d 734 (Ga. App. 2008) the defendant failed to appear and the court issued a bench warrant. The court did not, however, immediately forfeit the bond or give notice to the surety. Instead, it set the case for a “bench warrant calendar” several months later. When the defendant again failed to appear, an execution hearing was set and notice sent to the surety pursuant to O.C.G. §17-6-71(a). The statute, however, required that the execution hearing be scheduled at the end of the day the defendant failed to appear and notice of the hearing mailed to the surety within ten days of the failure to appear. The surety objected to the court’s failure to comply with the statute when the defendant first did not appear, but did not proffer evidence of any actual prejudice from the delay. The Court interpreted the statute to apply to any day on which the defendant failed to appear and so his non-appearance at the “bench warrant calendar” could trigger the statutory requirements anew. The Court held that in any case, even if there was error, it was harmless because the surety did not prove that it suffered any prejudice from the delay.

Northeast Atlanta Surety Co. v. Perdue, 668 S.E.2d 508 (Ga.App. 2008) held that notice mailed to the surety 22 days after the defendant failed to appear was substantial compliance with the requirement of OCG §17-6-71(a) that the notice be given “within ten days of such failure.” The Court affirmed forfeiture of the bond. The surety did not establish actual prejudice from the delay.

In Gomez-Ramos v. State, 2009 WL 607345 (Ga.App. March 11, 2009) the defendant was released on bond but turned over to Immigration and Customs Enforcement which deported her. She failed to appear for arraignment, the bond was forfeited, and judgment ultimate was entered on the bond. The defendant and surety appealed. The Court of Appeals found that the defendant’s failure to appear was not caused by any of the reasons for which the statute provided relief such as confinement in a penal institution or pursuant to court order in a mental institution. The Court rejected Constitutional arguments based on equal protection and the supremacy clause and affirmed the judgment.

In re Extradition of Chapman, 459 F.Supp.2d 1024 (D.Hawaii 2006) granted bail to three recovery agents (“Dog The Bounty Hunter” and two of his sons) arrested on an extradition request from Mexico. There is a presumption against bail in international extradition cases, but the court found special circumstances justifying bail including very low likelihood of flight by the defendants who are recognizable public figures with a lucrative television show.

State v. Mezurashi, 2008 WL 4899435 (Hawaii App. November 12, 2008) dismissed the surety’s untimely appeal from an order denying its motion to set aside the judgment forfeiting its bond. Bail forfeiture is a civil matter, and pursuant to Rule 4(a)(3), H.R.A.P., the surety’s motion for reconsideration of the trial court’s denial of its motion to set aside the forfeiture extended the time to appeal until 30 days after entry of an order disposing of the motion. However, the motion for reconsideration was deemed to be denied when it was not ruled upon within 90 days. Thus, the 30 days to appeal ran from the date of that deemed denial, not from the actual denial of the motion several months later, and the surety’s appeal was untimely.

State v. Vargas, 111 P.3d 621 (Idaho App. 2005) is a very unfortunate case. Alladin Bail Bonds appealed denial of its motion to set aside forfeiture and motion to extend the 90 day period to produce the defendant. The first motion was based on the fact that the clerk put the wrong date on the notice of forfeiture so it was mailed within the required five days of the actual forfeiture but said the failure to appear occurred on a future date. The court held that the notice was sufficient. The court noted that Alladin was not mislead by the clerk's mistake. Unfortunately, on the second motion the court held that there was no statutory authority to extend the 90 days to recover the defendant even though it was the custom of the courts to do so. There was, therefore, no abuse of the trial court's discretion in denying the extension requested by Alladin. Presumably, extensions will no longer be available unless or until legislation is obtained to authorize them.

In State v. Beck, 167 P.3d 788 (Idaho App. 2007) the defendant failed to appear because he was incarcerated in another state. The court declared the bond forfeited and the surety received proper notice of the forfeiture. The surety moved to exonerate the bond, and the surety and State agreed to a series of extensions of the 90 day period during which the surety could produce the defendant and obtain an automatic exoneration. Eventually, the trial court held that the series of extensions was impermissible, that it could consider only the facts presented during the first 90 days following forfeiture, and on those facts it denied the motion. The surety and State stipulated to a stay of payment pending appeal. While the appeal was pending, the defendant filed a request for disposition of the Idaho charge pursuant to the Interstate Agreement on Detainers, he was returned to Idaho, pled guilty to an amended charge, and received a judgment of conviction.

The Court of Appeals held under Idaho Criminal Rule 46 the court may, at any time prior to remittance, set aside all or part of the forfeiture if justice does not require a complete forfeiture. The Court agreed that the 90 day period for automatic exoneration cannot be extended, but thought that was irrelevant to this case because the surety did not move to extend the 90 day period. Rather, the surety sought to exonerate the bond (before remittance) pursuant to Rule 46. Once the 90 day period expires, the County must sue on the bond if the surety does not pay voluntarily. Here, there was no such suit. The surety can move to set aside the forfeiture, and once it is set aside to exonerate the bond, at any time before remittance. It is within the discretion of the trial court whether to set aside the forfeiture and exonerate the bond, in whole or in part, and in exercising that discretion the court should consider a series of factors including the willfulness of the failure to appear, the surety’s role in locating and apprehending the defendant, cost and prejudice to the State, the public interest and any mitigating factors. Since the trial court did not exercise its discretion because it thought it was limited to the facts presented in the 90 day period following forfeiture, the Court vacated the order denying the surety’s motion to exonerate the bond and remanded for the trial court to consider all of the facts of the case, including that the defendant was returned and the charge resolved. The Court pointed out that the point of bail was not a windfall to the State but rather to assure the defendant’s presence in court.

In State v. Castro, 188 P.3d 935 (Idaho App. 2008) an incorrect case number was written on the bond. At some point, the error was corrected on the bond in the court’s file, and when the defendant failed to appear a timely notice was sent to the surety. The notice had the correct case number, which did not match the number on the surety’s file. The surety appealed forfeiture of the bond and argued that there was no meeting of the minds on issuance of a bond because the number did not describe the case in which the defendant was charged. The Court held that from all the circumstances, the surety clearly intended to provide a bond for the defendant in the case, and no actual prejudice resulted from the error. Just as a draftsman’s error can be corrected in a contract, the parties intended a bond for the case, and the bond would be reformed to correct the error and conform to what the parties intended. A valid bond agreement was formed, and the surety received timely notice of the forfeiture. The Court affirmed the judgment against the surety.

State v. Boles, 792 N.E.2d 553 (Ind. App. 2003) involved a consolidated appeal of nine cases in which the trial court clerk imposed "late surrender fees" after the defendant failed to appear. The Court of Appeals affirmed the trial court's order vacating the fees and exonerating the bonds. In each case, the court had failed to give the bail bondsman or surety advance notice of the trial or hearing date at which the defendant did not appear. The Court of Appeals held that such notice was mandatory. The Court also held that only a trial court judge, not the clerk, could assess late surrender fees.

In State v. Boles, 2004 WL 1445441 (Ind. June 29, 2004) the Indiana Supreme Court reversed the trial court and Court of Appeals and held that late surrender fees and bond forfeiture can be imposed even though the court failed to give the bail agent or surety advance notice of the appearance date as required by Ind. Code §27-10-2-8(a). The Supreme Court also held that the clerk, as opposed to the Judge, could assess the late surrender fees. The bail agent and surety would still be entitled to receive notice that the defendant failed to appear pursuant to §27-10-2-12(a), and only the Judge could declare a forfeiture of the bond. The Court remanded the case to the trial court to determine whether the late surrender fees should be waived pursuant to §27-10-2-12(e) because of the surety's or bail agent's diligent efforts to locate the defendants.

In Smith v. City of Hammond, 388 F.3d 304 (7th Cir. 2004) a City Court judge refused to permit use of a surety bond for bail and instead ordered that bail be “cash bond” meaning that the defendant had to deposit 10% of the face amount of the bail and would receive that deposit, less certain deductions, back if she appeared. The bondsman sued the judge, the city court, the City, the police chief and the city clerk asserting that he was deprived of a property right in violation of 42 U.S.C. §1983. The alleged property right was his license as a bondsman. The plaintiff sought a preliminary injunction and appealed its denial. The Seventh Circuit affirmed on multiple grounds and remanded the case with the suggestion that it be dismissed “without further ado” since it was plainly without merit.

Smith v. City of Hammond, 2006 WL 1460602 (Ind.App. May 30, 2006) was another version of a bail agent's attempt to challenge the policy of a Judge on the Hammond City Court to require 10% cash bail. The Court held that the Judge and his agents (the police chief and court clerk) had complete judicial immunity and the bail agent did not have standing to challenge the Judge's policy. The Court affirmed summary judgment dismissing the suit. This case was very similar in substance to Smith v. City of Hammond, 388 F.3d 304 (7th Cir. 2004) in which the Seventh Circuit rejected the same arguments. The Seventh Circuit warned of sanctions if the bail agent did not stop filing frivolous lawsuits, and in this case the Court remanded the case to the trial court to consider sanctions.

In Government Payment Service, Inc. v. Ace Bail Bonds, 854 N.E.2d 1205 (Ind.App. 2006) a group of bail agents sued Government Payment Service (GPS) for violating the Indiana statute on licensing of bail agents and tortious interference with the bail agents’ contracts. The trail court granted a temporary restraining order, and later a permanent injunction, restraining GPS from facilitating the payment of cash bail in Indiana. GPS counterclaimed for malicious prosecution. GPS had contracts with three courts under which inmates could charge their cash bail. GPS received a fee in connection with each transaction, and the bail agents argued that this violated IC 27-10-3-1 under which only a licensed bail agent may charge a fee to post a bail bond. The Court of Appeals reversed the injunction and held, “Facilitating the access of incarcerated defendants to credit which they in turn post as cash bail is not engaging in the writing of bail bonds, and it is not tortious interference with the business relationships of the Bail Agents.” The Court also held that the lower court case terminated in the bail agents’ favor, therefore GPS could not recover on its counterclaim.

Shroyer v. State, 2007 WL 926057 (Ind.App. March 29, 2007) held that the 10% cash bond posted by the defendant could be applied by the state to pay the defendant’s fine and court costs. The court ordered a $1,500 cash only bond. The court interpreted that to be 10% of a $15,000 bond and so subject to application to fines, costs and administrative fees.

Smith v. Lake County, 863 N.E.2d 464 (Ind.App. 2007) is the latest in a series of cases in which a bail agent challenged the constitutionality of Indiana bail statutes and particularly the use of 10% cash bail. The Court held that the adverse decision in Lake County Clerk’s Office v. Smith, 766 N.E.2d 707 (Ind. 2002) barred the plaintiff’s claims because they could have been raised in the earlier case. The Court also noted Mr. Smith’s several other state and federal suits and appeals asserting similar challenges and imposed sanctions for vexatious and frivolous litigation.

In Campbell v. A.A.A. Bail Bonds, 2008 WL 187968 (Ind.App. January 22, 2008) an indemnitor appealed summary judgment for the bail agent awarding expenses the agent incurred to locate the defendant and arrange his surrender to authorities. The indemnitor argued that the indemnity agreement obligated him to the surety, not to the agent, and the agent sued for the agent’s own expenses not the surety’s. The Court rejected the arguments. The agreement was for the benefit of the surety and its agents and assigns, and the surety provided an affidavit that it assigned its interest to the agent. The Court affirmed the judgment.

In Galloway v. Hadley, 881 N.E.2d 667 (Ind.App. 2008) a bail agent who had not contributed to the election campaign of the new sheriff of Hendricks County was removed from the “Preferred Agent List” used at the jail to call bail agents for inmates who did not already have an agent. The agent sued for an injunction against use of the Preferred Agent List as a violation of the Indiana Equal Access statute that guaranteed equal access to the jails for all properly licensed and registered bail agents. The trial court granted the injunction, and the sheriff appealed. The Court of Appeals affirmed the injunction. The Court held that there was a private right of action under the Equal Access Law, that use of the Preferred Agent List was a denial of equal access, that the complaining agent would suffer irreparable harm, and that continued use of the List was against the public interest.

In Haddix v. State, 2008 WL 786540 (Ind.App. March 26, 2008) the court set bond at $500,000. The next day the State moved to increase the amount of the bond. The defendant’s family contacted the surety, paid the $50,000 premium, and the defendant was released from jail. At the hearing on the State’s motion four days later, the court substantially increased the amount of the bail, and the defendant was taken into custody. After the defendant was sentenced, he sought, in the criminal case, to have the bond premium returned. The trial court refused the request, and the defendant appealed. The Court held that the bond contract was between the defendant’s family and the surety and the defendant did not have standing to seek return of the premium. The Court, therefore, affirmed the trial court’s denial of the relief he sought.

In United States v. Odumabo, 2008 WL 2003229 (N.D.Ind. May 7, 2008) the defendant was released on an unsecured bond signed by his brother as surety. He failed to appear, and the court forfeited the bond and directed that token monthly payments be made. The Government re-arrested the defendant some 14 months later without any help from the surety. The defendant committed suicide while in custody, and the surety moved for relief from the bond forfeiture and the order to make monthly payments. Since the surety did not surrender the defendant, the surety’s only ground for relief under Federal Rule 46(f) was that justice did not require forfeiture of the bond. The court considered the relevant factors including the willfulness of the breach, the extended period the defendant was a fugitive, expense to the Government of recapturing him, and the lack of help from the surety. The court denied the motion and reiterated the order that the surety make monthly payments.

In Awald v. State, 2009 WL 426195 (Ind.App. February 19, 2009) the agent was tipped off that the defendant intended to leave the state. She located him and called for local police help. He was in a different county than the one in which the charges were pending, however, and the local police would only turn the defendant over to the police from the other county. The other county would not come to get him, and he was released and left the state. When he failed to appear, the court entered judgment for 20% of the face amount of the bond, and the surety appealed. The Court held that the statute permitted the surety to avoid a forfeiture if, within one year, it produced the defendant or showed that the defendant’s appearance was prevented by death, illness, incarceration or the court’s failure to give a required notice. Since none of these applied, the judgment was affirmed. [Not published].

State of Iowa v. Briggs, 666 N.W.2d 573 (Iowa 2003) considered a constitutional challenge to an Order requiring the defendant to post “cash only” bail. The defendant was first released on a surety bond but failed to appear. The bench warrant specified that bail would have to be in cash. She eventually appeared and filed an application for bond review arguing a constitutional right to a surety bond. The trial court refused to modify the cash only requirement, and the defendant, who was found guilty of the charged offense, appealed the denial of access to a surety bond.

The Iowa Constitution provides that before conviction all persons shall be bailable “by sufficient sureties” except for certain capital offenses. It also forbids “excessive” bail. The majority of the Iowa Supreme Court held that the imposition of a “cash only” bail requirement does not per se violate either clause of the Iowa Constitution. The majority opinion seems to hold that the posting of cash is a form of access to a surety. The three dissenting Justices argued that “A cash-only bond is a per se denial of the constitutional guarantee to bail 'by sufficient sureties.'”

Even the majority opinion acknowledges that appellate courts in Louisiana, Ohio, Minnesota and Tennessee have reached the opposite conclusion under their constitutions, and that if the defendant could show that “the bail determination absolutely bars his or her utilization of a surety of some form, a court is constitutionally bound to accommodate the accused’s predicament.”

In State v. Neville, 2004 WL 1813748 (Iowa August 11, 2004) a judgment forfeting the bond was entered, and the surety did not appeal. Almost a year later, the surety filed a motion for return of surety. The trial court denied the motion and the surety appealed. The Iowa Supreme Court treated the motion for return of surety as a petition to vacate the judgment. Of the six permissible grounds to vacate a judgment, however, the surety could advance only one – that the clerk did not mail the notice of forfeiture as required by law. The trial court held a hearing and found that the surety did receive notice, and the Supreme Court affirms on the ground that there was substantial evidence to support the finding.

State v. Erdman, 727 N.W.2d 123 (Iowa 2007) held that the $10,000 civil case jurisdictional limit for associate district court civil cases applied to bail bond forfeitures and therefore vacated the district court’s judgment for $26,500.

In State v. Chukes, 2003 WL 23018243 (Kan. App. December 24, 2003) the bond was signed by the defendant as principal and by the bail agent as surety. There was no execution by an actual surety company although a power of attorney for the bail agent as agent for a surety company was attached. The appeal was from entry of judgment on the bond and an order refusing to set the judgment aside. The court held that the judgment (which was against the principal and the bail agent only) and refusal to set it aside were not abuses of discretion and so under Kansa law the judgment is affirmed as to the agent. The surety also purportedly appealed even though no judgment was entered against it and it was not a party to the case, and the court dismissed the surety's appeal for lack of standing.

In State v. Burhans, 89 P.3d 629 (Kan. 2004) a bail bondsman was convicted of criminal trespass and assault for going on the bond principal’s sister’s property and threatening the sister’s husband, allegedly in an attempt to apprehend the principal. The court considered cases from other jurisdictions dealing with the rights of bail agents to enter property of third parties and concluded that it did not have to decide whether a reasonable belief that the principal was on the property would have justified the bondsman’s actions since, under the facts of the case, there was no basis to believe the principal was present. State v. Ocampo-Navarro, 2004 WL 1609122 (Kan. App. July 16, 2004) held that the surety was discharged by a material alternation in the risk of the bond. As issued, the bond was conditioned on appearance and on the defendant not having contact with the alleged victim or others under the age of 18. Without notice to the surety, or obtaining its consent, the court added a condition that the defendant be subject to electronic monitoring of his location. He did not appear to have the electronic monitoring put in place, and the court forfeited the bond. He then did not appear for a preliminary hearing and the court forfeited the bond again. The state initially sought judgment against the bond for both forfeitures but eventually withdrew the request for forfeiture based on failing to appear for the electronic monitoring. Judgment, therefore, was entered only on the forfeiture for failure to appear at the preliminary hearing.

The Court of Appeals reversed and discharged the bond on the theory that adding the electronic monitoring requirement was a material change in the bond that increased the surety's risk. The Court reasoned that since the additional condition could result in bond forfeiture it was material and increased the surety's risk of loss. [Not published]. State v. Landes, 2004 WL 1683126 (Kan. App. July 23, 2004) held that the trial court was within its discretion in refusing to remit any part of a forfeited bond. The defendant was apprehended shortly after he failed to appear, but the surety and bail agent did not play any part in the apprehension. The trial court thought the bail agent should have done a better job of monitoring the defendant and his appearance obligations. The Court also refused to consider the bail agent's argument that the judgment should have been only against the actual surety not the agent because the argument was not raised in the trial court. [Not published.]

State v. Sedam, 122 P.3d 829 (Kan. App. 2005) held that the appearance bond was discharged by a material change without notice to the surety or the surety's consent. The defendant failed to appear and the bond was forfeited. Three days later the defendant appeared in court and the court "reinstated" the bond and added a condition that the defendant be supervised by pretrial services. Part of such supervision was to report to pretrial services weekly and undergo drug testing. After giving a urine sample showing use of amphetamines, the defendant never came back. When he did not appear at the next court date, the bond was forfeited. The state argued that the addition of pretrial supervision benefited the surety, but the Court of Appeals thought the surety's risk was increased by requirement of drug testing and more frequent appearances even though the ultimate forfeiture was for failure to appear in court. The Court held, "By reinstating a forfeited bond with new conditions with no notice to the surety, the court in fact rewrote the bond and gave the surety no opportunity to evaluate whether he wanted to assume the increased risk of forfeiture. Imposing a money judgment under such facts is an abuse of discretion."

City of Dodge City v. Reyes, 133 P.3d 1291 (Kan.App. May 19, 2006) held that an appearance bond in connection with an appeal to the district court was valid even though the defendant did not sign it within the time required. The surety's agent signed the bond on the proper form, and the court held that was sufficient.

In State v. Berges, 2007 WL 881865 (Kan.App. March 23, 2007) the defendant was arrested and a bond posted even though he had not yet been formally charged. In the criminal case, the defendant failed to appear, but the court held that it did not have jurisdiction to enforce the bond because when it was written there were no pending charges. The State did not appeal that decision. Instead, the State filed this separate civil case arguing that the bond was a contract and the surety could be sued civilly on that contract. The trial court thought the bond could not be enforced in a separate civil action and dismissed the complaint. The Court of Appeals reversed. The Court thought that even if there was no obligation under criminal law for the defendant to appear, he and the surety entered into a contract obligating him to appear, and they were subject to suit for breach of that contract just as in any other civil matter.

In State v. Thammavong, 2008 WL 762507 (Kan.App. March 21, 2008) the surety posted a bond to release the defendant. Several months later, the defendant was arrested on a new charge, and the surety again provided a bond. Apparently as a result of the new arrest, the bond in the first case was revoked and a new bond required for an increased amount. The surety was not informed of the changes in the first case. The defendant failed to appear in the second case and the court entered judgment against the surety. The surety appealed. The Court agreed that a material increase of the bond’s risk without the surety’s consent discharges the surety, but in this matter there was no increased risk. The forfeiture was in the second case, and that bond was written after the increase in the bond in the first case. The surety could have checked the court record and learned of the actions in the first case, but in any event there was no change in the second bond’s risk after it was written.

In State v. Futch, 2004 WL 626204 (La. App. March 31 2004) the surety moved to set aside a bond forfeiture because the record did not show that the defendant was given notice of the date he was to appear. The Court affirmed denial of the motion because Art. 344 of the La. Code of Criminal Procedure requires notice after the initial appearance only to the surety, agent or bondsman not to the defendant. Since notice was given to the surety, the forfeiture was correct.

In State v. Ainsworth, 2004 WL 1459356 (La. App. June 29, 2004) the surety had two grounds to set aside forfeiture of the defendant's bond. The surety argued that the state did not give the defendant the required notice of the appearance date and that the defendant was incarcerated in another jurisdiction on the appearance date. The Court held that under Louisiana statutes some defenses must be raised within 60 days and some within six months. The alleged lack of notice is a 60-day defense, and it was first raised by motion filed more than 60 days after the notice of forfeiture was mailed. In addition to being untimely, the defense failed on its merits because the state tried to serve notice of the appearance date on the defendant at the false address he gave.

The incarceration is a six-month defense, but the surety did not raise it in its motion or in any amended motion. It was first raised the morning of the hearing which was more than six months after the date the notice of forfeiture was mailed. The statute also requires an affidavit from a public official that the defendant was incarcerated, and the surety provided only an unsworn letter. The Court, therefore, affirmed the trial court's denial of the surety's motion to set aside the forfeiture.

Reading between the lines of this case, it appears that the way things have routinely been done has not complied with the applicable statutes and the Court of Appeals is giving notice that it will require strict compliance in the future. [Published].

In State v. Harris, 2004 WL 2072040 (La. App. September 17, 2004) the defendant failed to appear and the bail agent asked the Sheriff to enter the resulting bench warrant in the National Crime Information Center Registry and tendered the $25 fee. The Sheriff refused to enter the warrant, and when the bail agent’s representatives later seized the defendant in another state the local police refused to hold him because there was no confirmation of the warrant in the Registry. The court held that the bond was exonerated pursuant to Art. 345G of the La. Code of Crim. Proc. The court said that it relied on the fact that the $25 was accepted and did not express an opinion on whether the Sheriff could have refused the fee and not entered the warrant. A concurring opinion, however, argues that the Sheriff was obligated to accept the fee and enter the warrant and to refuse would border on malfeasance. Under the terms of the cited statute, it appears that mere refusal to enter the warrant should discharge the surety, and the fact that the defendant was later located, and released because of the Sheriff’s failure, was not essential to the holding.

State v. Timberlake, 2004 WL 2290500 (La. App. October 12, 2004) refused to consider the merits of the surety's motion to set aside forfeiture of its bond because the motion was filed after the expiration of six months from the date notice of the judgment of bond forfeiture was mailed. The motion was, therefore, untimely, pursuant to La. R.S. §15:85. The Court also noted several other avenues of relief that the surety failed to pursue. State v. Campbell, 889 So.2d 1030 (La. App. 2004) refused to consider the merits of the surety's appeal from the forfeiture of two bonds. The surety argued that the defendant was not served with notice of the court date upon which she failed to appear and that she was incarcerated in another Parish within six months of the mailing of the notice of bond forfeiture. The surety's original motion to set aside the forfeiture was based on only the lack of proper notice defense. The Court refused to consider it because it was not filed within 60 days of the mailing of the notice of bond forfeiture as required by La. R.S. §15:85(5). That statute allows six months to assert a defense based on incarceration of the defendant, but the surety did not raise that defense until the hearing on its motion, which was after expiration of the six month period.

State v. McCoy, 889 So.2d 1026 (La. App. 2004) reversed a judgment vacating a bond forfeiture. La. C. Cr. P. Art. 345 allows the surety six months from the mailing of notice of bond forfeiture in which to surrender the defendant. The surety moved to extend the period, the state withdrew its opposition to the motion, and the trial court granted an extension. The surety surrendered the defendant one day after expiration of the extended period. The Court of Appeals held that the trial court did not have discretion to extend the surrender period, and even if the state's acquiescence legitimized the extension, the surrender was not within the extended period. In addition, the various statutory procedures to obtain relief from the forfeiture were not followed.

In State v. Turner, 2004 WL 2806466 (La. App. December 8, 2004) the criminal falsely identified himself as his younger brother. The Sheriff's office did nothing to verify his identity. The bond was issued in the name of the brother in reliance on the false identification. The defendant failed to appear and a warrant was issued in the brother's name. Eventually, the mistake was discovered and corrected. The surety moved to set aside the forfeiture more than six months after the notice of forfeiture was mailed. Nevertheless, both the trial court and the Court of Appeals held that the surety should not be penalized for failing to produce the defendant because that failure was caused by reasonable reliance on false information provided by the state. State v. Rivera, 894 So.2d 496 (La. App. 2005) affirmed denial of the surety’s motion to set aside forfeiture of its bond. The defendant was a native of Mexico and was voluntarily deported immediately after his release. He did not appear for arraignment and the bond was forfeited. Notice of forfeiture was mailed to the surety and agent.

Deportation is not one of the grounds for non-forfeiture enumerated in La. R.S. §15:87 (which can be raised within six months of mailing the notice), and therefore the surety could proceed only by summary proceeding in the criminal case under La. R.S. §15:85. However, such summary proceedings must be brought within the 60-day period following mailing of the notice, and the surety’s motion was untimely.

In State v. Gibson, 2005 WL 675664 (La. App. March 24, 2005) the clerk mailed notice of the judgment of bond forfeiture to the surety and to the defendant, but the envelop to the defendant had the wrong zip code. The rest of the address was correct, and there was no allegation that the notice was not received or that the surety was prejudiced by the error. The surety moved to set aside the judgment, which was denied, and the surety appealed. The Court of appeals affirmed. The statute required mailing to the address on the bond, but does not define address. The court suggests, over a dissent, that the zip code should not be considered part of the address, but the judges agreed that the intent of the statute is to provide notice and that in this instance notice was provided and no prejudice suffered, therefore, in this instance, failure to include the correct zip code did not render the address invalid.

United States v. Green, 2005 WL 1400426 (E.D. La. June 6, 2005) charged a Louisiana district court judge in Jefferson Parish with accepting, and Bail Bonds Unlimited and Norman Bowley with giving, bribes in return for various favors related to bail bonds. Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

Sanders v. Yentzen, 2005 WL 2035029 (W.D. La. August 23, 2005) unsuccessfully challenged the constitutionality of the Louisiana statutes requiring collection of a $15.00 fee, La. R.S.33:1432(9), and a 2% tax, La.R.S.22:1065.1, in connection with submission of a bail bond. The court dismissed the case in reliance on Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). The court held that as long as the fees and taxes were reasonable administrative charges and not arbitrary punishment, they were constitutional.

In State v. Melancon, 925 So.2d 552 (La. App. 2005) the defendant failed to appear and the court issued a bench warrant and signed a judgment of bond forfeiture. Some time later the defendant went with a representative of the surety to the sheriff's office. Upon being informed by the sheriff that she was in his office, the court recalled the warrant. The Court held that her appearance at the sheriff's office was an "appearance" under La. R.S. 15:85 (that is, "appearance" does not mean just an appearance in court) and the surety was entitled to relief from the forfeiture judgment. [Published].

State v. Davis, 923 So.2d 744 (La. App. 2005) affirmed judgment of forfeiture against the surety. The Court rejected the surety’s argument that statutory notice of the court appearance was not given to the defendant. Notice was sent by certified mail and attempted personal delivery to the address the defendant gave on the bond. It turned out to be a vacant house, and the surety argued that actual notice was required. The Court held that the defendant had the obligation to file any change of address, and that notice sent to the address of record in the case was sufficient.

Williams v. City of Jeanerette, 2005 WL 3113024 (W.D.La. November 21, 2005) denied the surety’s motion for summary judgment in a suit based on alleged torts of a bounty hunter. The surety argued that the bounty hunter was an independent contractor, but the court held that there were genuine issues of fact.

In State v. Murphy, 917 So.2d 769 (La. App. 2005) the defendant failed to appear and the trial court ordered the bond forfeited and a bench warrant issued, but no judgment of forfeiture was signed. Five months later, the forfeiture was set aside, the warrant recalled, and the defendant ordered to appear on a new date. He again did not appear, and this time a judgment forfeiting the bond was signed and timely notice mailed to the surety and bail agent. The surety argued that because notice was not mailed within 60 days of the original failure to appear and forfeiture, the bond was released. The Court held that the 60 days in which the clerk must mail notice of forfeiture runs from the date of nonappearance that results in a signed forfeiture order. If there is no signed judgment, even though there was a failure to appear, there is no final judgment and no duty to mail the notice. The Court affirmed the trial court’s denial of the surety and agent’s motion to set aside the forfeiture judgment.

In State v. Wilson, 917 So.2d 719 (La. App. 2005) Bossier City charged the defendant with theft, and he was ordered to appear in the Bossier City Court. The obligee of the Bond was the Mayor of Bossier City, and the power of attorney stated that it was not transferable to another court except for change of venue under La. C. Cr. P. Art. 626. The Sheriff sent a letter to the defendant telling him to appear to answer the theft charge in the Bossier Parish District Court. The Court held that the bond was discharged because the change of venue procedures of La. C. Cr. P. Articles 621 – 627 were not followed and the power of attorney clearly limited the bond to appearance in the Bossier City court. The Court rejected the state’s argument that the power of attorney was just an agreement between the surety and agent and stated, “the power of attorney is a critical and mandated portion of the bail bonding agreement. It is to be viewed and read as part of the total bail bond agreement.”

In City of Bossier City v. Miller, 920 So.2d 408 (La.App. 2006) the defendant was released and later pled guilty and was fined $1,000. She forfeited the $1,000 posted for her release to pay the fine. The paperwork for her release showed “cash” as the surety and gave no indication that anyone served as her surety. Someone else paid the $1,000, however, and he objected to forfeiture of his money to pay the defendant’s fine. The court noted that a contract of suretyship must be in writing and that there was no writing indicating that the appellant was surety for the defendant. The court affirmed dismissal of his claim.

In State v. McLaurin, 2006 WL 782849 (La.App. March 28, 2006) the bond contained an appearance date, but the date was changed. The court attempted unsuccessfully to give the defendant notice of the new date by personal service, but did not give the surety notice. The defendant appeared on the original date and filled out a form to change her address. The record does not show whether she was given notice of the new date, but she failed to appear on the new date, and the court forfeited the bond and denied the surety's motion to set the forfeiture aside. The Court of Appeals reversed because the surety was not given notice of the new appearance date as required by La.C.Cr.P. art. 344. The Court held, "a judgment of bond forfeiture is only to be rendered upon proof of delivery or mailing of notice of the appearance date to the surety, when that date has been changed from the one listed on the appearance bond." The Court did not reach the problem with notice to the defendant, but expressed skepticism that it would have supported a forfeiture judgment.

In State v. Ramee, 930 So.2d 1092 (La.App. 2006) the defendant failed to appear and the bond was forfeited. Several months later, but within the six month appearance period, the defendant was incarcerated for two days in another Parish. The Court held that La.C.Cr.P. 345 did not provide relief because the defendant was released. The Court interpreted section 345 to apply only if the surety was unable to return the defendant because the defendant was incarcerated and was still incarcerated. Presumably the Court meant still incarcerated at the time the surety's motion was filed. The Court noted that La.R.S. 15:87 provides relief to the surety if the defendant's original failure to appear was because of incarceration on the appearance date. The Court disagreed with the trial court that denied the surety's motion to set aside the forfeiture because the surety did not tender transportation costs pursuant to section 345 but nevertheless affirmed the result because section 345 did not apply at all.

In Louisiana Bail Bonds, Inc. v. State, 930 So.2d 1113 (La.App. 2006) the defendant failed to appear, and the court issued a bench warrant and forfeited the bond. No written order of forfeiture was signed, however, and no notice of forfeiture was mailed. Several months later, the court recalled the bench warrant and set aside the forfeiture. The defendant again failed to appear, and the bond was forfeited properly and notice sent to the surety.

The surety and bail agent argued that the bond was released because no notice was mailed within 60 days of the original failure to appear as required by La. R.S. 15:85. The Court held that the notice requirement applied only if there was a written forfeiture order. Since in this case there was no written order for the first forfeiture, the 60 day period to mail notice did not apply and the trial court was free to set aside the forfeiture and start over. The Court affirmed judgment against the surety.

Bartholomew v. Bail Bonds Unlimited, Inc., 2006 WL 2524167 (E.D.La. August 30, 2006) asserted various claims based on an alleged conspiracy to monopolize the bail bond business in Jefferson Parrish. The court granted a surety company’s motion to dismiss the claims subject to a one year limitations period because the plaintiff should have known of her claims in 2003 when the first criminal charges were brought against one of the alleged conspirators. The court otherwise found that the amended complaint survived the surety’s motion to dismiss for failure to state a claim.

Ranger Insurance Co. v. State, 941 So.2d 182 and 191 (La.App. October 11, 2006) affirmed the trial court in two consolidated cases in which the surety argued that the court commissioner did not have authority to sign judgments of bond forfeiture. In the first case, the surety prevailed on another argument and the state did not appeal, so the Court of Appeals refused to consider the case. In the second case, the Court held that the commissioner’s judgment was valid under the de facto officer doctrine. Only an elected judge had authority to sign the judgment, and the commissioner was an appointed official not an elected judge, but under the de facto officer doctrine the officer’s actions are valid and binding on the parties until the officer’s authority or status is attacked. This appears to mean that in the future commissioners will not be able to sign bail bond forfeiture judgments but that ones already signed are valid.

In State v. Williams, 945 So.2d 106 (La.App. 2006) the defendant failed to appear and a forfeiture was entered five months before Hurricane Katrina. The six month period to surrender the defendant, therefore, was interrupted by the Hurricane. The Court held that a series of Executive Orders, which were ratified by the Legislature, applied to the six month period of La. C.Cr. P. Art. 345. While the appeal was pending, the Legislature passed Act 466 of 2006 that, among other things, authorized discretionary relief from judgments of bail bond forfeiture if the hurricane related events made it impossible for the surety to perform under the bond or return the fugitive. Even though the trial court judgment in this case predated the remedial legislation, the Court held that the legislation applied and formed an alternative basis for relief. The Court vacated the judgment denying the surety’s motion to set aside the forfeiture and remanded the case to the trail court to consider the motion under the standards set forth in the remedial legislation. State v. Weaver, 951 So.2d 421 (La.App. 2007) reversed the trial court’s order setting aside forfeiture of the bond and remanded the case for the court to make specific factual findings. The defendant failed to appear, and the issue was whether the State had given her satisfactory notice of the hearing. On the bond she provided a street address but no apartment number. She was served several times at that address although a number of other attempts failed. At some point someone put an apartment on the subpoena, and the sheriff’s return said she was not at the address. The State can rely on the address the defendant provides, and the defendant has a duty to update it. On the other hand, if the State added an incorrect apartment number and that caused the Sheriff’s service to fail, then the bond would not be forfeited because the State did not provide notice of the hearing. The Court remanded the case for an evidentiary hearing on these issues. In State v. Coker, 951 So.2d 1255 (La.App. 2007) the surety filed a motion to set aside forfeiture of its bond within six months of the date the clerk mailed the notice of forfeiture. After the six month period had expired, the trial court denied the motion. Instead of appealing, the surety filed a “Motion to Reconsider Ruling,” which the trial court granted. The State appealed on the ground that statutes and rules applicable to bail in a criminal case do not provide for a “Motion to Reconsider Ruling,” and the forfeiture judgment became final when no timely appeal was taken. The Court of Appeals agreed and reversed the trial court.

State v. Hill, 953 So.2d 849 (La.App. 2007) held that the surety had six months from the date notice of the judgment of forfeiture was mailed to move to set the forfeiture aside. The State argued that a summary proceeding in the criminal case had to be filed within 60 days, but the Court found that the case was controlled by the six month period in La. Code of Criminal Procedure Art. 345(D) rather than the 60 day period in La. R.S. 15:85(5). The Court thought that the shorter period was for summary proceedings to set the forfeiture aside for procedural deficiencies that rendered it a nullity, whereas here the surety argued that the defendant was incarcerated in California during the six month recovery period and could have been returned but for the Sheriff’s delay in entering the warrant in the NCIC database. The Court found that there was no delay, and although the motion was timely it was properly denied on its merits.

In City of New Orleans v. Young, 967 So.2d 539 (La.App. 2007) the surety on an appearance bond for the defendant asked the trial court to grant a suspensive appeal of its order forfeiting the bond. The trial court refused. The Court of Appeals held that the surety was entitled as a matter of law to the suspensive appeal and remanded the case with directions that the trial court grant the surety’s motion and enter an order for a suspensive appeal.

In State v. Whitehouse, 2007 WL 3228506 (La.App. November 2, 2007) the trial court denied the surety’s request to be released from any obligation as to future appearances by the defendant. The surety appealed, but in the meantime the defendant pled guilty and was sentenced. Since this discharged the surety as a matter of law, the Court of Appeal dismissed the appeal.

State v. Williams, 977 So.2d 154 (La.App. 2008) held that the surety was discharged by the State’s failure to comply with the requirement that the clerk mail notice of forfeiture to the surety within 60 days of the defendant’s failure to appear. The defendant failed to appear for a hearing on November 28, 2006. The court set January 9, 2007, for a rule requiring the surety to produce the defendant. The defendant did not appear on January 9, and the order of forfeiture was entered, but the clerk did not mail the notice of forfeiture to the surety until February 5. The issue was whether the 60 day period to mail the notice started on the first date the defendant failed to appear or the date the order of forfeiture was entered. The Court held that the January 9 hearing was not a continuation of the hearing on November 28, and the defendant’s failure to appear was on November 28. The trial court then had 60 days from November 28 to complete the forfeiture process including mailing notice of entry of the order. When 60 days elapsed without mailing the notice, the bond was discharged. The fact that for the first 42 days of the 60 days notice could not be mailed because the order of forfeiture had not been entered did not change the requirement. The Court noted that the purpose of the 60 day deadline was to assure that the surety received prompt notice of the defendant’s failure to appear. The Court stated, “It is axiomatic that, as the time period between entry of the forfeiture and the sending of notice thereof increases, the surety’s chances of tracking down the defendant are progressively diminished.”

In Safety National Casualty Corp. v. State, 986 So.2d 802 (La.App. 2008) the defendant appeared and eventually pled guilty, but he failed to appear for sentencing. The court issued a bench warrant and, almost two months later, signed a judgment of bond forfeiture. The clerk mailed notice of the bond forfeiture shortly after the written order of forfeiture. The surety did not appeal the judgment and did not assert defenses by summary proceedings within 60 days of the date the notice was mailed. The third avenue available to it to obtain relief from the judgment was to file a civil action asserting nullity of the judgment. Such a nullity action is available if the judgment was obtained by fraud or ill practice. Here, the Court found no evidence of fraud or ill practice. The surety merely failed to avail itself of its statutory remedies. Thus, even though the bond should not have extended beyond entry of the guilty plea without the surety’s consent (La. C. Cr. P. Art. 326(B)), the Court did not reach the merits of the surety’s arguments.

The surety also argued that the notice of forfeiture was not timely mailed. The notice had to be mailed within 60 days. There were disputes over what started the 60 days and when the notice was actually mailed. The Court pointed out that in an earlier case it held that the 60 days started from entry of the order not the defendant’s failure to appear, but it did not reach that issue because the clerk’s affidavit of mailing indicated the notice was mailed within 60 days of the nonappearance. The surety argued that the date in the affidavit was wrong based on a postmark on the envelop for the copy sent to the defendant, which was five days later and past expiration of the 60 day period. The Court found no evidence to support the surety’s argument that the notice to it was mailed at the same time as the notice to the defendant, and the surety admittedly received the notice and knew of the forfeiture. The Court affirmed the trial court’s dismissal of the surety’s petition to nullify the judgment.

In State v. White, 996 So.2d 448 (La.App. 2008) the court file showed two names for the defendant, and it was unclear which was correct and which was an alias. The surety received notice of the judgment of forfeiture showing one name but had the bond filed under the other name. However, the other information such as the power of attorney number and court file number were correct, and the court file contained both names. The bail agency may have called the court clerk to inquire about the forfeiture and been given the other name. The surety appealed the judgment, and the Court held that the notice was sufficient and any defect did not prejudice the surety or agent in their ability to locate the defendant or identify the obligation. The Court affirmed judgment forfeiting the bond. In State v. De La Rosa, 997 So.2d 165 (La.App. 2008) the defendant traveled to Mexico and was not allowed to return for his required court appearance. The trial court forfeited the bond, and the surety appealed. The facts did not fit the justifications for nonappearance in La.R.S. §15:87 (physical disability or injury, incarceration, and service in the armed forces). Instead, the surety relied on a post-Hurricane Katrina statute, La.C.Cr.P., Art. 345(I), allowing relief if a fortuitous event prevented the defendant from appearing. The Court held that the inability to return from Mexico was not a fortuitous event as defined in the statute. The Court thought that when writing a bond for an alien, legal or otherwise, the possibility that he would return to his native country and not be allowed to return to the United States was foreseeable and part of the risk the surety took. The Court affirmed the trial court’s judgment denying the surety’s motion to set aside forfeiture of the bond.

In City of New Orleans v. Young, 2008 WL 4890887 (La.App. November 12, 2008) the trial court forfeited the bond when the defendant failed to appear. The Court of Appeals reversed because there was no transcript of the proceedings in the trial court. La. R.S. 15:85(1) required proper evidence of the bail contract, power of attorney and notices. Evidence meant more than just in the record of the case. Evidence has to be offered and admitted. The Court stated, “While the bail contract, power of attorney, and notice to the defendant were in the record, there is no indication the documents were properly and officially offered and (sic.) into evidence.”

In State v. Fall, 2008 WL 5247124 (La.App. December 16, 2008) the defendant’s arraignment was rescheduled and subpoenas issued to the defendant and the surety bond agent. The record did not include any return of service on the defendant. When he failed to appear, the bonds were forfeited and notice mailed to the surety and agent. Over a year later, the surety filed a motion to set aside the forfeitures. The trial court granted the motion, and the State appealed on the ground that the motion was filed too late. The Court of Appeals affirmed because judgment cannot be rendered against a defendant who was not served, and such a judgment can be annulled pursuant to La.C.C.P. Art. 2002(A)(2). The 60 day requirement of La.R.S. 15:85 applied only to assertion of defenses to a forfeiture, not to a surety’s action to annual a forfeiture judgment for vices of form under Art. 2002.

In State v. Bell, 2008 WL 5377644 (La.App. December 23, 2008) the defendant was served with a summons to appear at a pretrial and trial, but he failed to appear on either date. The court forfeited the bond on August 5, 2005. The defendant was arrested in Texas on May 3, 2006 and extradited to Louisiana on May 16. The surety did not appeal the judgment of forfeiture but moved on January 28, 2008, to set it aside. The surety argued that the judgment was based on the defendant’s failure to appear for the pretrial conference, which he had no legal obligation to attend, and, in the alternative, that it was entitled to remission of the bond forfeiture upon payment of 10% of the bond amount pursuant to La.R.S. 15:85(10)(b)(ii).

The court held that the surety did not timely challenge the judgment based on the first argument and, even if considered on its merits, the argument failed because the court’s summons required the defendant’s attendance at the pretrial. Even if the minutes of the prior hearing did not include an instruction to the defendant to appear at the pretrial, the summons instructed him to appear. He also failed to appear for trial, and the forfeiture was based on both failures. On the second argument, the court did not reach the issue of whether the defendant’s arrest in Texas was a “surrender” pursuant to §15:85(10)(b)(ii) or whether the nine month period of the section applied because there was no dispute that 10% of the amount of the bond was not tendered within the nine month period. The court interpreted the statute to require “the surrender of the defendant and the payment in cash of ten percent of the face amount of the bond within the nine-month period.” Since the record did not show a timely tender, the surety could not rely on §15:85(10)(b)(ii). A concurring opinion agreed with the result but thought that the statute did not apply anyway because the criminal case was filed before the statute was amended on August 15, 2006.

In Tarver v. Safety National Casualty Corp., 2009 WL 700691 (W.D.La. March 17, 2009) five individual indemnitors sued the surety alleging that although the defendants failed to appear and the bonds were forfeited, the defendants each appeared in court within six months. The plaintiffs complained that the surety still demanded indemnity. The indemnity agreements covered costs as well as forfeitures and included a stipulation for a minimum amount of costs that would be suffered if the defendants failed to appear. The plaintiffs claimed that it was a breach of the indemnity agreements to sue to enforce the agreements, which the court stated bordered on the absurd. The plaintiffs also relied on a statute that applied to insureds or claimants on insurance policies, but the defendants were neither. The court granted the surety’s motion to dismiss and closed the case.

Pantazes v. State of Maryland, 2003 WL 22453793 (Md. App. October 30, 2003) held that the court's delay in forfeiting the bond was not grounds to grant the bail bondsman any relief. The defendant failed to appear for sentencing and the court "revoked" his bail status but did not enter an order forfeiting the bond. Some months later, the administrative judge corrected the error and entered an order forfeiting the bond and giving the surety 90 days to produce the defendant (by statute the 90 days is supposed to run from the date the defendant failed to appear, but the judge's action foreclosed an argument that the belated forfeiture deprived the surety of its 90 days to recover the defendant.) The bail bondsman presented no evidence of his actions to monitor or recover the defendant. The court rejected arguments that prejudice resulted from the "cold" trail to find the defendant or that the "revoked" bond could no longer be forfeited. The court then went on to lecture the bail bondsman that he was not a central party to the case which was really between the state and the defendant and that the bond was just a form of security posted by the defendant and that the business risk assumed by the bondsman was that the defendant would not appear in court. The defendant did not appear, and the court showed little sympathy for the bail bondsman's attempts to escape the financial consequences.

In Professional Bail Bonds, Inc. v. State, Case No. 0638 (Md.App. March 31, 2009) the defendant fled to Honduras. The surety located the defendant there, but the defendant refused to return and no extradition treaty applied. The surety moved to strike forfeiture of its bonds and argued that it had shown reasonable grounds for not recovering the defendant. The Court explained that the case should be about the defendant not the surety, and there was no showing of reasonable grounds for the defendant’s failure to appear. The defendant willfully failed to appear and was still a fugitive. The trial court correctly denied the surety any relief.

In State v. Cabral, 2005 WL 10313 (Mass. January 4, 2005) the state charged a bail bondsman and his alleged agents with assault and various other crimes in connection with the apprehension and surrender of the bond principal. The Court held that the common law privilege of the surety and its agents to apprehend and surrender the principal is still the law in Massachusetts. The Court discussed the burden of proof and standards to determine the extent of this lawful authority.

In re Forfeiture of Bail Bonds, 705 N.W.2d 350 (Mich. 2005) remanded the case to the Court of Appeals to reconsider its decision to remit only a small part of the bond. MCL §765.28.1 was amended in 2003 to require that the court give the surety notice not later than 7 days after the defendant failed to appear. The notice was given six months after the failure to appear. The Supreme Court clearly suggested that the partial remission was not compliance with the statute.

In re Forfeiture of Bail Bonds, 2007 WL 2437982 (Mich.App. August 28, 2007) refused to follow the Michigan Supreme Court’s hints in its decision remanding the case, see 705 N.W.2d 350 (Mich. 2005), and affirmed partial remission of each of the four bonds involved. In each case the defendant failed to appear and the bond was forfeited but the court delayed notifying the surety. In light of that delay, the trial court entered judgment for only the portion of each bond roughly equivalent to the portion of the six year statute of limitations remaining when the surety was finally given notice. In three of the cases, the applicable statute said that the court “may” notify the surety, and the Court of Appeals held that the failure to give notice was not a violation.

Before the failure to appear in the fourth case, however, the statute was amended to say that the court “shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear.” In spite of the legislature’s use of “shall,” the Court held this was not a mandatory provision and the court could still enter judgment on the bond even though six months elapsed before notice was given. The Court stated, “. . . nothing in MCL 765.28(1) expressly precludes the trial court from entering judgment on the recognizance after the specified seven-day notice period has elapsed.” The Court also rejected the State’s argument that nothing in the statutes authorized partial forfeitures. The State wanted the entire amount forfeited in spite of the substantial delays in notifying the surety that the defendant did not appear. The Court rejected the State’s argument and held that “Both the former and the current MCL 765.28(1) plainly authorize the trial court, in its discretion, to enter judgment in an amount less that the full face value of the forfeited surety bond.”

In People v. Bray, 2007 WL 4207818 (Mich.App. November 29, 2007) the defendant pled guilty but fled before sentencing. The trial court forfeited the bond, and the bail agent appealed arguing that the court should have considered various equitable factors in deciding whether to grant full or partial remission of the forfeiture. The Court of Appeals held that this argument had not been presented to the trial court, and so was waived, and in any event the record did not establish that the trail court abused its discretion in denying relief.

State of Minnesota v. Rosillo, 2004 WL 1192085 (Minn. App. June 1, 2004) reviewed the criteria for reinstating and discharging a forfeited bond but held that the trial court did not abuse its discretion in reinstating only $4,000 of one bond (the $4,000 was the cost the surety incurred in unsuccessful attempts to recover the defendant). This seems to be a harsh result given that the defendant was in prison in Mexico, but the court emphasized the surety and agent did very little to monitor him or keep informed about his nonappearance. The court also held that the court administrator's failure to mail notice of non-appearance and forfeiture (the bond was reinstated when the defendant appeared two days later) was outweighed by the surety's failure to monitor the defendant, and the trial court was justified in not discharging the other bond based on the administrator's failure to mail the notice.

In State of Minnesota v. Martin, 2008 WL 43874 (Minn. January 3, 2008), the trial court offered the defendant a choice of either release on his own recognizance conditioned on submission to random drug testing or $5,000 cash bond or $50,000 surety bond. The court admitted that it thought the defendant should have drug testing and set the amount of the bonds to force him to agree to the drug testing rather than to assure his appearance. The defendant appealed to the court of appeals, which affirmed the trail court, and the defendant appealed to the Minnesota Supreme Court. The Supreme Court held that the trial court, and Minnesota Rule of Criminal Procedure 6.02, did not violate the sufficient sureties clause of the Minnesota Constitution because they offered an alternative of a surety bond conditioned only on appearance. The Court declined to adopt the argument that drug use per se was grounds to believe the defendant would fail to appear but thought that the trial court could consider drug use in evaluating whether the defendant would be a danger to himself or others. In this case, however, the trial court did not make such an evaluation and ordered drug testing simply because that was the judge’s standard practice. The Court also held that the trial judge abused his discretion by setting the amount of bail to coerce the defendant to accept the alternative of drug testing. Rule 6.02 requires release except on a finding that release will not reasonably assure the defendant’s appearance or will be inimical to public safety. The trial court violated the Rule by basing the amount of bail on another purpose. The Court remanded the case for reconsideration of the conditions of release and amount of bail to be required of the defendant based on the facts of the case not a blanket rule.

In State v. Soliz, 2009 WL 366500 (Minn.App. February 17, 2009) a defendant released on several charges and several bonds failed to appear, but the surety located him 9 days later. The surety alerted law enforcement, and the defendant was recaptured. The trial court forfeited 10% of the bond amounts, and the surety appealed. The Court of Appeals held that the trial court considered the required factors and did not abuse its discretion in ordering a partial forfeiture. The Court affirmed the judgment for 10% forfeiture. In State v. Vang, 2009 WL 817860 (Minn.App. March 31, 2009) the defendant failed to appear for sentencing and the court forfeited his bond. The surety showed substantial efforts to locate him and the court granted several extensions of the appearance period, but ultimately the surety reported that it believed the defendant was living in Canada. The defendant remained a fugitive. The trial court reinstated and discharged only $500 of the $10,000 bond, and the surety appealed. The Court of Appeals affirmed. The surety complained that the trial court had ruled on its motion without a hearing, but the Court held that no hearing was required. The Court reviewed the factors the trial court is to consider in considering whether to remit any part of the bail, and held that the trial court did not abuse its discretion.

In State v. Langevin, 2009 WL 910790 (Minn.App. April 7, 2009) the defendant failed to appear and the bond was forfeited. The surety contacted an indemnitor and had some surveillance performed but was not able to locate the defendant. The police arrested the defendant who was at large for 42 days. The surety applied to reinstate and discharge the forfeited bond. The trial court denied any relief and the surety appealed. The Court of Appeals noted that the trial court had considered the appropriate factors including the surety’s good-faith efforts and any prejudice to the state. The Court criticized the surety’s lack of monitoring prior to default, characterized its post-default efforts as “token” and held that the surety had not demonstrated an abuse of discretion by the trial court.

Stringer v. American Bankers Insurance Company of Florida, 969 So.2d 113 (Miss.App. 2007) affirmed dismissal of a pro se suit by a criminal who complained that his bond was revoked in 1989. The Court held that a 2002 dismissal of the same claims barred his attempt to re-assert them.

State of Missouri v. Angela M. Cook, 104 S.W.3d 808, 2003 WL 21153484 (Mo. App. May 20, 2003) held that the bail agent had apparent authority to appear for the surety at a forfeiture hearing.

In American Western Bonding Company, Inc. v. United Surety Agents, Inc., 2004 WL 627996 (Mo. App. March 31, 2004) a bail agent sued a managing general agent to recover a buildup fund. The trial court held that (1) the MGA properly paid a bond forfeiture from the fund, (2) the agent was not entitled to damages for alleged mismanagement of the fund, (3) the agent was not entitled to punitive damages, and (4) the agent was entitled to the money held in the fund. Since neither party knew the exact amount, no judgment was entered for a sum certain. The parties could not agree on the amount (the MGA claimed it could subtract litigation costs) and the trial court entered an "amended" judgment for the amount in the fund without reduction for the litigation costs. The MGA appealed claiming that the trial court did not have jurisdiction to "amend" the judgment. The Court of Appeals disagreed and held that the first judgment was not final and could be modified, and affirmed the modified judgment.

In State v. Carroll, 2005 WL 1563084 (Mo. App. July 6, 2005) the defendant failed to appear but the bail agent located him in jail in Georgia and had the Sheriff enter the warrant in the N.C.I.C. system. In due course, the Georgia authorities informed the Sheriff that the defendant could be picked up, but the Sheriff did not tell the bail agent. Instead, the Sheriff sent two deputies to bring the defendant back to Missouri at a cost of $2,988.59. The Court refused to forfeit the bond, but ordered the surety to pay the $2,988.59. The surety appealed and the Court of Appeals reduced the amount to the $584.40 that the bail agent testified it would have cost him to go to Georgia and bring the defendant back. The applicable Missouri statute, §374.200.2, provides that the bail agent shall have the "first opportunity" to return the defendant incarcerated in another state and if unable to do so shall pay the cost for the State to return him.

Lass v. Wright, 2006 WL 1330984 (Mo.App. May 17, 2006) affirmed judgment on a promissory note. The defendant was convicted of second degree murder, and the court set bond at $1 million. The fee for the bond was $90,000, and the defendant's father paid $2,000 and signed a note for the balance. Several months later, the court of appeals ruled that someone convicted of second degree murder was not eligible for release on bond, revoked the bond and incarcerated the defendant. The bondsman sued for the balance owed on the note, and the father counterclaimed for what he had paid on account. The father argued that the bond was illegal and so the note was not collectible. The Court noted that the bondsman was properly licensed and the defendant was released for several months. The Court refused to cancel the note and affirmed judgment for the bondsman. In State v. Wilson, 202 S.W.3d 665 (Mo.App. 2006) the defendant was sentenced to nine years in prison but given thirty days to report. The bond was continued in effect. The surety was not present at the sentencing and was not asked to consent to continuation of the bond. The defendant failed to surrender to begin serving his sentence, and the bond was forfeited. The trial court denied the surety’s motion to set the forfeiture aside, and the surety appealed. The surety argued that its obligation was satisfied when the defendant appeared for sentencing and that releasing the defendant after imposition of sentence increased the surety’s risk. The Court held that under Rule 33.15 the bond continued in force until the condition of the bond was satisfied, the surety deposited the bond amount in cash, or the surety surrendered the defendant. It was up to the surety to monitor the status of the case and surrender the defendant of it no longer found the risk acceptable. Neither the Rule nor any statute terminated the bond upon entry of a guilty plea or imposition of sentence. The Court of Appeals affirmed denial of the surety’s motion.

Peak v. Richardson, 2008 WL 762110 (E.D.Mo. March 19, 2008) held that two sitting Missouri Circuit Judges had judicial immunity from a suit by bail agents whom the judges had barred from writing bonds in the judges’ court on alleged grounds that the bail bond agents were not reputable as required by court rule. Even though licensing bail agents is generally within the jurisdiction of the Department of Insurance and the judges acted on hearsay without a hearing, their acts were judicial not administrative. The judges had immunity under Missouri law, and the case was dismissed.

Restvedt v. Carlson, 2004 WL 1336752 (9th Cir. June 11, 2004) involved a "time-pay" bail bond program allowed by the administrative judge of the Bozeman, Montana Municipal Court. Apparently the judge, Ms. Carlson, lets defendants pay cash bail on an installment plan. A bail agent challenged this as depriving him of a constitutional right to practice his profession. The Court held that even assuming there is such a constitutional right, it would not mean that there could not be a competing arrangement. That is, there is no constitutional right not to have competitors. [Not published.]

In State v. Ashcraft, 2008 WL 2231116 (Neb.App. May 20, 2008) bond was set at $50,000 with the defendant to deposit $5,000 cash. The defendant paid the $5,000 but did not appear for trial because he was incarcerated in another state. The charges were eventually dropped, and the trial court denied the defendant’s motion for release of the bond. On appeal, the Court reviewed factors considered by federal courts in deciding whether to grant partial remission and Nebraska cases in which the surety recovered the defendant and more than 10% of the bond was nevertheless forfeited. The Court held that forfeiture of the 10% cash recognizance was within the trial court’s discretion and affirmed denial of the defendant’s motion.

International Fidelity Insurance Co. ex rel. Blackjack Bonding, Inc. v. State, 126 P.3d 1133 (Nev. 2006) held that no statute or court rule gives the Nevada Supreme Court jurisdiction over appeals from any orders entered in an ancillary bail bond proceeding even though it had previously decided such appeals. The Court dismissed consolidated appeals from eight orders denying the surety's motions to remit the bonds. The Court stated that the proper procedure to obtain review of such orders would be a petition for a writ of mandamus. This will limit the scope of review in future cases to correction of a manifest abuse of discretion.

State v. Clayton, 825 A.2d 1155 (N.J. Super, A.D. 2003) and State v. Dillard, 824 A.2d 1100 (N.J. Super, A.D. 2003) both hold that in a series of cases the vast majority of the forfeited bond amount should be remitted because of the surety's successful efforts to recover the defendant and the lack of any expense or prejudice to the state. In one of the cases decided in the Clayton opinion, the surety was entitled to complete exoneration because it apprehended the defendant and objected to forfeiture within the 45 day period (since extended to 75 days) provided by N.J. Rule 3:26-6(b). The trial court reinstated the bond and again released the defendant who again failed to appear and was again recovered by the surety. The appeal court held that reinstating the bond without the surety's consent discharged the surety from any obligation for further defaults and the surety had fully performed after the first default as required by the rule. In the other 8 cases decided in the two opinions, some part of the bond was forfeited but most was remitted in light of the surety's monitoring and recovery efforts.

State v. Harmon, 825 A.2d 515 (N.J. Super.A.D. 2003) is another decision of the New Jersey intermediate appellate court granting some degree of relief from forfeiture on 14 out of 16 bonds under consideration. The court decided that if the defendant remained at large, no relief was warranted. On the rest of the cases, some relief was granted depending on the facts of each case.

State v. Simpson, 839 A.2d 896 (N.J. Super. A.D. 2003) is an opinion in 17 consolidated appeals raising constitutional challenges to the New Jersey procedure barring sureties and agents who fail to satisfy an uncontested judgment of forfeiture from writing more bonds until the forfeiture is paid. The 17 cases all involve two sureties who have the same Program Administrator, Capital Bonding. The Court found that the constitutional issues were frivolous and resoundingly upheld the right of the New Jersey Supreme Court to establish rules barring defaulting sureties. The Court was also highly critical of the surety companies for which Capital Bonding is the managing agent for a policy of appealing virtually every forfeiture. In cases in which the defendant was not recovered, the grounds of appeal have been the constitutional issues now rejected by the Court, supported by identical "verbatim" briefs. The Court states, "Hundreds of such appeals have been filed in the last several years, but because the appellant saw fit to withdraw or settle them as they were calendared, these constitutional issues were not adjudicated, and the stream of 'verbatim' appeals therefore continues." This is unusually strong language from a court describing what it clearly thinks is an abusive practice. In re Preclusion of Brice, 841 A.2d 927 (N.J. Super. A.D. 2004) is another case indirectly involving Capital Bonding Corporation. The court held that the contracts, court rules and statutes involved permitted the court to de-list (refuse to accept further bonds from) the bail agent, as well as the surety company, if forfeitures were not paid. Although Capital Bonding was not a party, the court noted that the agent’s contract was with Capital Bonding not with either of the surety companies.

State v. Wickliff, 875 A.2d 1009 (N.J. Super. 2005) vacated the conviction of a recovery agent for criminal trespass because the trial court's instructions to the jury did not allow the jury to find that the defendant was not guilty because he reasonably believed he had a right to enter the house of the fugitive's mother to look for the fugitive. The New Jersey criminal trespass statute requires that the defendant must enter a structure "knowing that he is not licensed or privileged to do so."

In State v. Ramirez, 875 A.2d 1025 (N.J. Super. 2005) the court consolidated three appeals by Sirius America Insurance Company, reviewed the factors to be considered when the surety requests remission of all or part of a bail forfeiture, and held that there was no basis in any of the cases to overturn the trial court's exercise of its discretion in determining the amount to remit (in two cases) or not to grant any remission (in the third case).

Dobrek v. Phelan, 2005 WL 1963036 (3rd Cir. August 17, 2005) held that §523(a)(7) of the Bankruptcy Code exempted from discharge the debts of a bail agent on forfeited bonds. In New Jersey, a bail agent who signs the bond is liable for the forfeiture, and a bail agent with unpaid forfeitures is removed from the Bail Registry and thus cannot write additional bonds. Mr. Dobrek had unpaid forfeitures and was removed from the Bail Registry. He sued and argued that his obligations on the bonds were discharged in his Chapter 7 bankruptcy proceeding. The Court held that the debts were "a fine, penalty or forfeiture payable to a governmental unit" and so not discharged pursuant to §523(a)(7).

In State v. AA Bail Bonds, 2005 WL 3500808 (N.J. Super. A.D. December 23, 2005) the surety recovered the defendant for non-appearance in another case and tried to surrender him and revoke the $50,000 bond in the instant case. The trial court refused to revoke the bond, and the defendant failed to appear. The trial court remitted half of the forfeiture. The Court of Appeals reviewed the factors to be considered in granting remission and thought that the facts of the case called for remission of more than 50%. It vacated the trial court order and remanded the case for reconsideration in light of the factors discussed.

State v. Harris, 887 A.2d 728 (N.J. Super. A.D. 2005) affirmed an order remitting only 75% of the bond amount. The Court reviewed the various factors for determination of the amount to be remitted, including that the defendant was apprehended by the Sheriff's office not the surety, and the applicable guidelines and held that remission of only 75% was within the trial court's discretion and the interests of justice.

State v. Safety National Casualty Corp., 2006 WL 167841 (N.J. Super. A.D. January 25, 2006) remanded the case for the trial court to reconsider its decision to forfeit $30,000 of a $100,000 bond. The trial court did not state that it was considering the factors that the case law required. Instead, the trial court seemed to place primary emphasis on the fact that the defendant committed another crime after his release. When bail was posted, the defendant was not released because of a detainer from another county. He failed to appear, and the court declared a forfeiture, but he was still incarcerated in the other county. The court then reinstated the bail without notice to the surety. After the defendant again failed to appear, the bond was forfeited. Notice of the forfeiture was mailed to the surety on August 13, 2004, and the defendant was rearrested on August 17. The Court of Appeals directed that on remand the trial court first consider whether reinstatement of the bond prejudiced the surety, which would require complete exoneration, and if not to consider the proper factors in determining how much of the bond to forfeit. Although remanding the case, the Court of Appeals stated that given the facts of the case, “it would appear difficult to penalize Safety National at all, let alone to the extent of thirty percent of the bond.”

In State v. Hawkins, 889 A.2d 1081 (N.J. Super. A.D. 2006) the trial court forfeited 60% of two bonds. The surety appealed. The Court held that failure to give the surety statutory notice of the defendant's earlier failure to appear prejudiced the surety and exonerated the bonds because the surety could have surrendered the defendant or, at least, not written a second bond for him, if the surety had known of this prior failure to appear. The court rejected the surety's additional argument that the court's questioning of the defendant's release on bail and suggestion that the state move to revoke bail prejudiced the surety and was a grounds to exonerate the bonds.

In State v. Williams, 2006 WL 280514 (N.J. Super. A.D. February 7, 2006) the court affirmed remission of only 20% of a forfeited bond because it found that the surety made no meaningful effort to monitor the defendant or recover him after he failed to appear. Commissioner of the Department of Banking and Insurance v. Capital Bonding Corporation, 2006 WL 2128930 (N.J. Super. A.D. August 1, 2006) affirmed the revocation of the licenses of Capital Bonding and Vincent Smith and fines in excess of $1 million imposed by the insurance commissioner. The decision recites various violations including tendering multiple checks drawn on accounts with insufficient funds and failing to pay numerous bond forfeitures in violation of agreements with different underwriters. State v. Ethridge, 2006 WL 2164619 (N.J. Super. A.D. August 3, 2006) held that forfeiture of the bond was proper but that the trial court had not adequately considered all of the factors for remission of the forfeiture under Court Directive #13-04. The trial court denied the surety’s motion to vacate the forfeiture and remitted 40%. The Court of Appeals vacated the amount remitted and remanded for the trial court to apply all eight of the remission factors.

State v. Gallagher, 2006 WL 2382018 (N.J.Super.A.D. August 18, 2006) affirmed the trial court’s decision to remit only 20% of the forfeited amount. After the defendant failed to appear and the bond was forfeited, law enforcement officers arrested the defendant. He was missing for 47 days. The Court reviewed the applicable factors, including the corporate surety’s failure to supervise the defendant or recover him after default, and held that remission of only 20% was within the discretion of the trial court. State v. Ruccatano, 909 A.2d 1173 (N.J. Super. A.D. 2006) held that it was error for the trial court to remit only 10% of the forfeited bond. Promptly after learning that the defendant had failed to appear, the bail agent located him in jail in another county and informed the authorities, who lodged a detainer against him. The trial court reviewed the “Remittitur Guidelines” and focused on the bail agent’s efforts to recapture the defendant. The trial court did not give sufficient consideration to all the factors, and particularly to the fact that the bail agent promptly located the defendant even though it did not take much effort. The Court held that effective efforts were necessarily reasonable efforts and 40% should have been remitted.

In Allegheny Mutual Casualty Co. v. Delachia, 2006 WL 3476677 (D.N.J. November 30, 2006) the surety sued an agent for indemnity for payments the surety made under a series of immigration bonds. The court denied the agent’s summary judgment motion. The agent argued that the cause of action accrued when the surety entered into an agreement that fixed its liability even though the payments were made over several years. The surety argued that the cause of action accrued when it made the last of the payments. The New Jersey statute of limitations for breach of a written contract was six years from the date the cause of action accrued. The court seemed to assume that there was a single cause of action that accrued at one time not separate causes of action for each payment. The court rejected the agent’s argument and held that the cause of action accrued when payment was made. The issue then was whether it accrued on the first payment or the last payment. The court held, at least for purposes of denying the motion, that the loss became fixed and the cause of action accrued when the last payment was made and the action therefore was timely.

In State v. Tuthill, 912 A.2d 146 (N.J. Super. A.D. December 8, 2006) the court clerk erroneously sent the surety a notice that the bond was canceled. The Court held, “absent a showing by the surety of detrimental reliance or a material increase in the risk originally undertaken, a court is not bound by its error, has the power to correct it, and acts within its discretion in ordering the bond reinstated without the surety’s consent.” The surety argued that it stopped monitoring the defendant, but in fact the defendant appeared as required and was eventually acquitted of the charge. The Court thought that there was no prejudice from, or detrimental reliance on, the erroneous cancellation notice. In State v. Redd, 2006 WL 3816296 (N.J.Super.A.D. December 29, 2006) the trial court remitted only 20% of the bond forfeiture even though the defendant was promptly rearrested on the bench warrant. The Court vacated the trial court’s order and remanded the case for re-consideration in light of State v. Ruccatano and the remittitur guidelines issued by the Administrative Director of the Courts.

In State v. Toscano, 913 A.2d 130 (N.J.Super.A.D. 2007) the trial court remitted only 20% of the bond forfeiture even though the defendant was in custody again by the time the surety received notification of the forfeiture. The Court discussed application of the remittitur guidelines and particularly what are immediate substantial efforts to recapture the defendant if he has already been recaptured. The Court vacated the trial court’s order and remanded the case for re-consideration in light of State v. Ruccatano and the remittitur guidelines issued by the Administrative Director of the Courts.

State v. Carrasco, 2007 WL 674683 (N.J.Super A.D. March 7, 2007) held that the trial court correctly denied the surety’s motion to vacate the forfeiture and discharge the bond. The surety’s only argument was that the trial court’s automated case tracking system showed the bond had been exonerated. The Court weighed that against all the other events in the case, including written notices and court dates, and the surety’s lack of any proof of prejudice from the erroneous information. The surety never did produce the defendant, and the Court exhibited little sympathy for what it thought was an attempt to use the computer error to avoid liability.

State v. Stubbs, 2007 WL 763302 (N.J. Super. A.D. March 6, 2007) affirmed remission of only 85% of the bond amount. The surety monitored the defendant by telephone except for a period when he did not call, and the surety promptly recovered him once it received notice of forfeiture. The issue as application of the Remititur Guidelines for “substantial remission” (95% for these facts) or “partial remission”(75%), and the trial court concluded that the case fell between the two and granted 85%. The Court of Appeals affirmed finding no abuse of discretion or error of law.

In State v. Robinson, 2007 WL 1703501 (N.J.Super.A.D. June 14, 2007) the defendant failed to appear and the court forfeited the bond. In due course, a default judgment was entered against the surety. The surety moved to vacate the forfeiture and discharge the bond based on a certification by its counsel that recited the surety’s efforts to monitor and locate the defendant. He was found in jail in North Carolina, and the New Jersey authorities lodged a detainer against him. At the time the trial court considered the surety’s motion, however, he had not yet been returned. The trial court held that the motion was premature and the surety was not entitled to any relief until the defendant was returned to custody in New Jersey.

The Appellate Division reversed and stated, “a surety need not wait until defendant is returned to custody in New Jersey before seeking remission of the forfeited bail.” On the other hand, the Court suggested that the surety would be entitled to only a small, partial remission unless or until the defendant was returned because the surety would have accomplished only “some small part” of its obligation. The Court also pointed out that the proper support for the surety’s motion should be an affidavit made on personal knowledge, not a certification of counsel as to what his client told him. State v. Simoes, 2007 WL 1756672 (N.J.Super.A.D. June 18, 2007) affirmed the trial court’s decision to remit only 60% of the forfeited bail. The defendant failed to appear and a forfeiture was entered. In due course, a judgment was entered on the forfeiture. Three months after his initial failure to appear, the defendant was arrested on new charges in another county. The Court noted that the surety did not closely monitor the defendant to assure his appearance, that he committed a new crime while a fugitive, and that the surety did not cause his recapture. It is true that the surety told the defendant to report and hired an investigator to locate him, but overall the Court thought that the trial court did not abuse its discretion in ordering a 60% remission and that, indeed, the facts “may have justified a less generous approach.”

In State v. Rojas, 2007 WL 1855369 (N.J.Super.A.D. June 29, 2007) the bond was posted and the defendant released in November, 1998. The defendant failed to appear in September, 1999 and a bench warrant was issued for his arrest. The surety was not notified, however, until October, 2004 when the bail was forfeited. The surety sought to vacate the forfeiture, but the trial court entered judgment in January, 2005. On appeal, the Court held that under N.J.S.A. 2A:162-5 a bail bond is no longer enforceable, and no judgment can be entered, six years after the bond was filed and recorded in the clerk’s office. In this case, the six year period ran from posting the bond in 1998, not the defendant’s failure to appear in 1999, and the judgment entered more than six years later was in error.

State v. Wilson, 2007 WL 2126589 (N.J.Super.A.D. July 26, 2007) vacated the trial court’s refusal to grant relief from forfeitures because the defendants were imprisoned in another state. The trial court followed State v. Erickson, 381 A.2d 72 (N.J.SuperA.D. 1977) which stated that a defendant imprisoned in a state other than New Jersey was still a fugitive and the surety was not entitled to relief unless or until the defendant was returned to New Jersey to face the charges. The Appellate Division decided that developments since Erickson, including increased use of the Interstate Agreement on Detainers, technological advances that enable the state to rapidly find fugitives through the NCIC, and the New Jersey Remititur Guidelines justify abandonment of the absolute position stated in Erickson. Instead, the trial court should balance all the relevant factors, including that the purpose of bail is the appearance of the defendant not revenue for the state. The Court also noted that the state promptly located the incarcerated defendants but did not tell the surety or the court, and the surety retained a recovery agent who also located the defendants some time later. The Court thought this needlessly increased the surety’s costs and should be taken into account in balancing the factors governing remission.

In State v. Granados, 2007 WL 2262883 (N.J.Super.A.D. August 9, 2007) the defendant failed to appear because she was incarcerated in another State. Her bail was forfeited, a bench warrant issued, and a detainer lodged against her. The other State, however, turned her over to federal officials who deported her. The surety moved to vacate the forfeiture and showed that it had diligently monitored the defendant and acted promptly when she failed to appear. The trial court denied the motion and ordered payment of the entire amount of the bond.

The Appellate Division affirmed. The trial court was within its discretion in forfeiting 100% of the bond. The defendant was still a fugitive, and the surety had not sought to intervene in the federal deportation proceeding to prevent her deportation. In State v. Cooper, 2007 WL 2331015 (N.J.Super.A.D. August 17, 2007) the defendant was convicted but did not appear for sentencing. Within about six months, the surety obtained information on his possible location in another state and contacted law enforcement authorities there who arrested him. He was returned to New Jersey and sentenced. The surety had monitored him prior to conviction and was directly responsible for his recovery. He had been a fugitive for about six months, and there was no evidence he had committed any new crime during that time. The trial court forfeited 40% of the bond amount, and the surety appealed. The Appellate Division reviewed the factors to be considered under its prior decisions and the forfeiture Guidelines, and concluded that the trial court had used the Guideline section for forfeitures if the defendant commits a new crime, which called for remission of 60%, instead of the proper section which called for remission of 95%. The Court reversed the judgment and remanded for reconsideration and application of the proper Guidelines.

In State v. Hill, 2007 WL 2416770 (N.J.Super.A.D. August 28, 2007) the defendant failed to appear a second time (the bond had been reinstated once) and a judgment was entered against the surety. Law enforcement authorities located the defendant incarcerated in another state and lodged a detainer against him. The surety moved to vacate the forfeiture and discharge the bond. The trial court denied the motion and ordered the surety to pay the judgment or be suspended from writing further bonds. The surety posted a supersedeas bond and appealed. The trial court relied on cases holding that if the defendant was detained in another state he was still a fugitive, but the Court of Appeals’ recent decision in State v. Wilson, 2007 WL 2126589 (N.J.Super.A.D. July 26, 2007) overruled that precedent. Nevertheless, the Court affirmed the judgment against the surety. The record did not indicate the surety monitored the defendant prior to his disappearance or helped recover him, and he apparently committed a new crime while a fugitive. The Court, however, did not close the door on future relief and stated, “Upon Hill’s extradition to New Jersey and a fair assessment of the costs and expenses associated with returning him to this State, Harco can make a new application seeking remission in accordance with the standards articulated in Harmon and Wilson.” State v. Harvey, 2007 WL 3033964 (N.J.Super.A.D. October 19, 2007) consolidated two appeals in one decision. In both appeals the defendant failed to appear for sentencing and the bond was forfeited. In both appeals the defendant was recovered and returned for sentencing, and the surety made no showing that it had closely monitored the defendant while he was released on bond. In one appeal the surety’s agents were instrumental in effecting the recovery with no help from the State. In the other, the prosecutor’s office recovered the defendant through an NCIC warrant and the surety’s participation was minimal. In the former case, the trial court remitted 80% of the bond and in the latter 20%. The Court of Appeals affirmed as to the 80% remission. In light of the lack of predefault monitoring, the amount remitted exceeded the maximum guideline and was only justified by the surety’s extraordinary recovery efforts. In the 20% case, the Court held that the time during which the defendant was at large (a factor under the guidelines) should be measured only until the date the defendant was located by means of the NCIC database, not the date he was actually returned to New Jersey. Since that was less than six months, the trial court judge used the wrong “starting point” under the guidelines, and the 20% case was remanded for consideration using the appropriate guideline. In State v. Gonzales, 2007 WL 3290287 (N.J.Super.A.D. November 8, 2007) the defendant gave a false name and identification. The surety wrote the bond believing that the defendant was the person whose name he used. After the defendant failed to appear, the surety located the actual person of that name, but not the defendant. The surety moved for additional time to locate the defendant. The trial court denied the motion and entered judgment forfeiting the bond but did not explain its reasoning. The surety appealed and also moved to supplement the record to allege that the prosecutor’s office knew the correct name of the defendant before the bond was written. The Appellate Division vacated the judgment and remanded the case for entry of findings of fact and conclusions of law and consideration of the surety’s request to supplement the record. The Court specifically stated that after remand the surety could move to vacate the forfeiture or for remission of all or part of the forfeiture.

In State v. Pulyer, 2007 WL 3341724 (N.J.Super.A.D. November 13, 2007) the defendant failed to appear and a notice of forfeiture was sent to the surety. Slightly over three months later, the prosecutor’s office located the defendant in federal custody, and a detainer was lodged against him. Eventually, he was returned and pled guilty. The trial court remitted only 20% of the bond amount, and the surety appealed. The trial court assumed that the defendant had committed a new crime while a fugitive, but the record did not support such an assumption. He could have been taken into federal custody because of a pre-existing warrant. The trial court also treated the defendant as a fugitive for 16 months even though he was in federal custody most of that time. Under the Guidelines the length of time he was a fugitive and the commission of a new crime are significant considerations, and the Court vacated the trial court order and remanded for reconsideration of both factors and the amount to remit.

In State of New Jersey v. Ghannam, 2007 WL 4355486 (N.J.Super.A.D. December 14, 2007) the defendant failed to appear and notice was sent to the surety. After additional notice and a hearing, judgment was entered in the amount of the bond. The surety moved to vacate the forfeiture and exonerate the bond on the ground that the trial court’s electronic docket system indicated the bond had been discharged on the date the defendant first failed to appear. The defendant was not recovered, and the Court held that the erroneous docket entry, which did not mislead the surety, was not a basis to set the forfeiture aside.

In State v. Calcano, 937 A.2d 314 (N.J.Super.A.D. 2007) the defendant did not keep in contact with the surety, and the surety obtained a bench warrant. The defendant was brought before the court and the surety sought revocation of bail, but the trial court refused and continued the bond. The defendant later pled guilty to an offense with a mandatory minimum sentence, but at that time neither the State nor the surety sought to revoke his bond. He did not appear for sentencing and has not been recovered. The surety sought to vacate forfeiture of its bond because of the trial court’s denial of its request to revoke the bond and because the court did not revoke the bond when the defendant pled guilty. The Appellate Division recognized that a surety is discharged by an alteration of the terms of the bond that substantially increases the surety’s risk without its consent, but held that the facts of the case did not amount to such an alteration. At the time the surety sought to revoke the bond, the defendant had kept in contact with the surety for a lengthy period before losing contact and had made all court appearances. The trial judge did not abuse her discretion by continuing the bail. The bond guarantees the defendant’s appearance until final determination, i.e. entry of sentence, and the guilty plea was not a substantial increase in the surety’s risk. The Court distinguished a case involving entry of a guilty plea in another case with a mandatory sentence. That was a risk the surety had not assumed, and so a substantial increase, but a guilty plea in the case in which the bond was provided was a risk included in the original bond and not grounds for an automatic revocation. The prosecutor or the surety could have applied for revocation of the bail when the guilty plea was entered, but they did not. The Court affirmed denial of the surety’s motion to vacate the forfeiture.

In State v. Ridgeway, 2007 WL 4462426 (N.J.Super.A.D. December 21, 2007) the defendant pled guilty to a crime that required a psychiatric evaluation before sentencing. He failed to appear for the court-ordered evaluation, and the court issued a bench warrant and forfeited his bond. He was arrested four days later. The surety moved for relief from the forfeiture. The court granted only a 75% remission, and the surety appealed. The Appellate Division held that the court-ordered evaluation was a “stage of the proceedings” and the bond could be forfeited for the defendant’s failure to appear. The trial court, however, ordered only a 75% remission because the bail agent’s affidavit showing that the surety monitored the defendant did not provide details such as the dates of calls and visits. The trial court treated the case as one of no or minimal monitoring and remitted only 75% of the bond even though the defendant was arrested in a few days, committed no new known crime, and the state claimed no expense for recovering him. The Appellate Division vacated the decision on the amount of remission and directed that after the surety has an opportunity to submit a supplemental affidavit with additional details the trial court should reconsider application of the remission Guidelines. State v. Russell, 2008 WL 110482 (N.J.Super.A.D. January 3, 2008) is another case wrestling with application of the Guidelines for partial remission of forfeiture when the defendant is recovered. The defendant was at large less than six months, committed no new crime, and the state alleged no expenses, but the surety performed little or no monitoring prior to his failure to appear. The trial court held that the surety’s recovery efforts were less than immediate and substantial, and granted only a Minimal Remission of 20%. The surety argued that its recovery efforts were immediate and substantial, and it was therefore entitled to a Partial Remission of 75%. The Appellate Division held that the affidavit of the surety’s supervising agent “fell woefully short of demonstrating” immediate, substantial recovery efforts and affirmed the trial court.

In State v. Faswala, 2008 WL 124039 (N.J.Super.A.D. January 15, 2008) the defendant, who was born and raised in Pakistan, did not keep in contact with the bail agent. The bail agent learned that the defendant had been detained at the US-Canadian border and requested that the prosecutor’s office take action to have him returned. The prosecutor refused, and the defendant left the U.S. The surety filed a motion to vacate the bond and issue a warrant, but the court denied the motion on the ground that the defendant had not missed a court date. After the defendant failed to appear for his next scheduled appearance, the court issued a warrant and notified the surety of bond forfeiture and judgment. The surety moved to vacate the forfeiture and judgment. The trial court denied the motion and the surety appealed.

The Appellate Division noted that the defendant had not been recovered. The issue was whether the prosecutor materially increased the surety’s risk by failing to act when advised that the defendant was detained at the border. The Court thought that the record was insufficient to evaluate the issue and remanded the case to allow the surety an opportunity to establish that the defendant’s release by the border authorities resulted from “either an expressed or implied agreement on the part of the prosecutor’s office that it would not seek his return.”

In State v. Graves, 2008 WL 239019 (N.J.Super.A.D. January 30, 2008) the trial court forfeited only $5,000 of a $35,000 bond. The surety nevertheless appealed, and the Court affirmed the trial court. The surety made no effort to supervise the defendant and no reasonable effort to locate her after she failed to appear. The surety eventually located her by a computer search of records of the New York Department of Corrections. The Appellate Division thought that the trial court’s remission of more than 85% of the bond amount was generous to the surety in light of the Guideline maximum of 75% for a surety that does not supervise the defendant.

In State v. Vega, 2008 WL 515976 (N.J.Super.A.D. February 28, 2008) the surety failed to monitor the defendant prior to his failure to appear, but upon receiving notice of the default, the surety promptly retained a recovery agent who located the defendant in jail. The defendant was at large for slightly less than two months and did not commit any known crime during that period. The trial court applied the minimal remission section of the Guidelines and remitted only 20% of the $50,000 bond. On the surety’s appeal, the Appellate Division held that the partial remission guidelines should have been used, that the amount of the bond was a pertinent consideration, and that the trial court’s consideration of the various factors was inadequate. The Court vacated the trial court’s order and remanded the case for additional fact finding and reconsideration in light of the current Guidelines and appellate decisions.

State v. Alexander, 2008 WL 1793206 (N.J.SuperA.D. April 22, 2008) decided seven consolidated appeals in each of which the defendant failed to appear and was arrested for a new crime committed while a fugitive. In each case, the trial court granted partial remission taking the commission of the new crime into account as one factor to weigh against the surety. The surety appealed arguing that commission of a new crime was not a proper factor because it effectively made the surety the guarantor of the defendant’s behavior rather than solely of his appearance. The Appellate Division rejected this argument. It thought that the intangible harm to the public interest when a defendant fails to appear is a proper consideration in remitting forfeitures, and that commission of a new crime is one manifestation of that intangible harm. The trial court, however, had not adequately considered the different facts of the seven individual cases in reaching its decisions on the percentage of each bond to remit, and the Court reversed the orders appealed from and remanded for reconsideration of the amounts to remit.

In State v. Valdes, 2008 WL 2078212 (N.J.Super.A.D. May 19, 2008) the surety posted two bonds for a defendant charged with a series of drug offenses. The defendant pled guilty to some of the charges in a plea agreement. The surety did not seek to surrender the defendant and obtain a release of the bonds. The defendant failed to appear for sentencing, and the bonds were forfeited. The surety appealed the judgments of forfeiture arguing that the guilty pleas materially increased its risk and discharged the bonds. The Court held that a guilty plea to the charges for which the bonds were given was part of the risk the surety assumed and affirmed the judgments.

In State v. Ventura, 952 A.2d 1049 (N.J. 2008) the New Jersey Supreme Court considered two consolidated cases in which the defendants failed to appear but were located incarcerated in another jurisdiction. The New Jersey authorities lodged detainers against the defendants, but in each case they were deported rather than returned to New Jersey. The sureties argued that the forfeitures should be remitted based on the surety’s efforts to monitor and recover the defendants and the fact that the government prevented the defendants’ return. The state argued that the defendants were still fugitives and no remission was appropriate. The trial court denied the sureties’ motions to remit the forfeited bail, and the intermediate appellate court affirmed.

The Supreme Court reviewed the Guidelines published by the Administrative Office of the Courts and several Appellate Division decisions on remission of bail. The Court drew a distinction between a defendant who was in compliance with his or her obligations up to the point of deportation and a defendant who was already a fugitive when deported. The Court thought that in the later case the first starting point of the Guidelines applied and there was a presumption of no remission. If the defendant was in compliance and was prevented from appearing by the act of the government, however, the Court thought that fact should be taken into account. In the two cases before the Court, however, the defendants were already fugitives, the trial court had considered the proper factors, and the Court affirmed denial of the sureties’ motions.

In State v. Holloway, 2008 WL 5101272 (N.J.Super.A.D. December 5, 2008) the defendant was released on a $30,000 bond. He failed to appear but was arrested nine days later. The trial court applied the Guidelines and granted the 75% remission called for if the defendant was a fugitive for less than six months. The Appellate Division accepted the category into which the trial judge placed the case but held that the Guidelines were merely the starting point and in this case the size of the bond and the very brief period of time during which the defendant was at large warranted a 90% remission. The Court vacated the trial court’s order and remanded the case for entry of an order remitting 90% of the bond.

In State v. Borbon, 2009 WL 605297 (N.J.Super.A.D. March 11, 2009) the defendant fled to the Dominican Republic. The surety located him there and gave the information to the State which filed an extradition application. The surety moved for relief from forfeiture of the bond. The trial court denied the surety’s request because the defendant had not yet been returned to custody. The trial court did not consider the various factors for remission of bail such as the surety’s monitoring of the defendant, the surety’s diligence in locating the defendant, any expense to the state and any crime committed by the defendant while released on bail. The trial court held that the surety had not done what it was supposed to do – return the defendant – and denied any relief. The surety appealed and argued that it could not go to the Dominican Republic and seize the defendant and the case was analogous to ones in which the defendant was in custody in another state. The Court held that the various factors should have been weighed and that they favored the surety. The Court ordered that the trial court determine the expense to the state of securing the defendant’s return and remit the balance of the bond to the surety.

In State v. DeShields, 2009 WL 614518 (N.J.Super.A.D. March 12, 2009) the surety appealed remission of only 20% of its $25,000 bond. The surety did not monitor the defendant, and after receiving notice of forfeiture it waited several weeks before sending the matter to a recovery agent. The recovery agent waited several more weeks but then located the defendant in jail in another county. The surety argued that the facts did not support a guidelines classification of “minimal remission” because it made “immediate substantial” efforts to recover the defendant. The surety also asserted that the trial court did not consider the relevant factors and explain its decision. The Appellate Division held that “minimal remission” was the correct category because the surety and its agent did not act promptly and did not play a role in the defendant’s capture. The Court agreed, however, that the trial court was obligated to consider various factors not just blindly use the percentage from the guidelines, and in this case should particularly have considered the amount of the bail and the relatively short period of time the defendant was at large. The Court vacated the judgment and remanded for the trial court to weigh the appropriate factors and equities and to articulate its findings.

In State v. Johnson, 2009 WL 790932 (N.J.Super.A.D. March 27, 2009) the defendant twice failed to appear for a pre-sentence interview with the probation officer, and the court revoked her bond and issued a warrant. She later appeared on the date for sentencing and claimed not to have received notice of the interviews. The defendant had moved and claimed to have informed the court, but the court file still contained her former address. The court accepted her explanation for the missed interviews, withdrew the warrant and reinstated the bond. The defendant later failed to appear for sentencing and the surety appealed forfeiture of its bond on the ground that the initial reinstatement without notice to or consent from the surety increased the surety’s risk and exonerated the bond. The Appellate Division agreed that a unilateral alteration of the bond without the surety’s consent would discharge the surety if the alteration materially increased the surety’s risk. In this case, however, the Court found that the trial court had a reason to reinstate the bond and the surety’s risk was not increased. The Court rejected the surety’s argument that reinstatement of the bond without notice to the surety automatically discharged the surety.

In Jacobs v. A Robert Depersia Agency, 2009 WL 799944 (D.N.J. March 20, 2009) an incarcerated criminal filed a pro se Section 1983 action against a bail bond agency that had apparently surrendered him. The court held that the bail bond agency was not a “state actor” for purposes of the civil rights statute and dismissed the case for failure to state a claim.

In State v. Valles, 99 P.3d 679, opinion reinstated, 143 P.3d 496 (N.M. App. 2004) the bond, on a form mandated by court rules, provided that it remained in force until discharged by the court. The applicable statute, however, stated that the bond was null and void upon a finding that the accused person was guilty. The defendant pled guilty but did not appear for sentencing. The issue was whether the statute or the bond itself controlled. The court held that the statute controlled and reversed a judgment forfeiting the bond.

State v. Gutierrez, 140 P.3d 1106 (N.M.App. 2006) (Cert. Den. August 10, 2006) held that cash only bail does not violate the sufficient sureties clause of the New Mexico Constitution. New Mexico Rule 5-401(B) lists a series of release alternatives in ascending order of onerousness. The final alternative is execution of an appearance bond secured by 100% cash deposited with the clerk. The Constitution provides that all persons shall, before conviction, be bailable by sufficient sureties. The Court stated, “Therefore, we conclude that Rule 5-401 expressly provides for cash-only bail, that this does not violate the New Mexico Constitution, and that a cash-only bond is permissible in appropriate circumstances.” The Court emphasized, however, that the cash-only alternative is the last choice and should be used only after careful consideration. State v. Romero, 143 P.3d 763 (N.M.App. 2006) Cert. Granted, Supreme Court No. 30,000 (October 3, 2006) held that a bail bond can be forfeited only for nonappearance of the defendant not for breach of any other conditions of release. The applicable statute, NMSA §31-3-2 (1993), states that whenever a person fails to appear the court may declare a forfeiture. The State argued that the bond form mandated by the Supreme Court, and used in the consolidated cases before the Court of Appeals, permitted forfeiture for breach of other obligations in addition to appearance. The Court of Appeals held that the statute controlled and while the defendant’s release could be revoked and a warrant for his arrest issued because of breach of other conditions, the surety bond could be forfeited only for nonappearance. On October 3 the New Mexico Supreme Court granted Certiorari to consider this case.

In State v. Romero, 160 P.3d 914 (N.M. 2007) the defendant appeared when required, but the court forfeited his bond for breach of other conditions on his release as permitted by the bond form mandated by New Mexico Court Rules but not authorized by statute. The New Mexico Supreme Court affirmed the decision of the Court of Appeals reported at 143 P.3d 763 (N.M.App. 2006) and held that the statute controlled and the bond should not have been forfeited. The decision recognized that bonds would not be available if the surety was exposed to forfeiture for conditions other than appearance. The Court stated, “If the statute were interpreted otherwise, a surety would be required to insure against a wide range of behaviors, including a defendant’s consumption of alcohol, possession of weapons, contact with victims, and disobedience of the law in general. This is clearly an unacceptable risk that no surety would be expected to take.” The Court also urged the Rules Committee to modify the bond forms.

In State v. Pacheco, 182 P.3d 834 (N.M.App. 2008) the defendant’s relatives secured his bail with a surety that was not authorized to write bonds in the county where he was detained. That surety arranged for another surety to post the bond. The defendant failed to appear for trial, and the court issued a bench warrant. Two days later, on Thursday, December 8, the court filed a notice of forfeiture and scheduled a show cause hearing for December 13. The clerk, however, did not mail the notice to the surety until December 13, and the surety received it on the 14th. The first surety, however, appeared at the hearing and was granted more time to try to locate the defendant. The court granted a series of additional extensions, but neither surety recovered the defendant, and the court entered a final judgment forfeiting the bond a year after the initial failure to appear. The surety appealed arguing that the clerk did not provide statutory notice of the failure to appear, the court abused its discretion in forfeiting the bond, and the court entered inconsistent findings as to the two sureties.

The Court noted the distinction between notice of forfeiture and notice of the show cause hearing. New Mexico Statutes §31-3-2(B) required notice of forfeiture within four working days of the declaration of forfeiture. Here, the forfeiture was declared on Thursday, the notice mailed to the surety the following Tuesday, and the surety received it on Wednesday. The four allowed days were Friday, Monday, Tuesday and Wednesday, and so the notice of forfeiture was timely received by the surety and the clerk complied with §31-3-2(B). Section 31-3-2(E) requires that notice of the show cause hearing be mailed to the surety. The surety did not receive notice of the initial show cause hearing until the day after it took place, but the court did not enter judgment at that hearing. It granted a series of extensions and held more hearings, at which the surety appeared and participated, before entering the final judgment a year later. The Court held that notice of these later hearings satisfied §31-3-2(E). The Court also held that under the circumstances the trial court acted reasonably and within its discretion and that the relationship between the two sureties, and the first surety’s agreement to hold the second surety harmless, was irrelevant to the forfeiture action.

In International Fidelity Insurance Co. v. City of New York, 263 F.Supp.2d 619 (E.D. N.Y. 2003) the surety challenged on constitutional grounds the practice of entering judgment of forfeiture against the surety without any prior notice to the surety. The many counts in the complaint included both specific bonds on which such judgments were entered and general challenges to the procedure. The court seemed to agree with the surety that the failure to give advance notice was a constitutional violation but nevertheless avoided ruling on the merits of the claims. The court held that it lacked jurisdiction over the counts of the complaint addressing specific bonds because they could have been raised in the state court by moving for relief from the judgments. The court also held that the general challenges to the procedure did not present an actual case or controversy because the entry of judgment did not deprive the surety of any constitutionally protected property right. The court, after having the case for over three years, dismissed it on jurisdiction and standing grounds without actually deciding the merits of any of the claims.

In People v. Miller, 824 N.Y.S.2d 831 (N.Y.A.D. 2006) the defendant failed to appear and the trial court revoked his bond and issued a bench warrant. The court did not make a finding that his absence was unexcused or direct forfeiture of the bond. The state waited over three years before moving for forfeiture of the bond. In exchange for a postponement to give it time to try to locate the defendant, the surety waived any objection to timeliness of the motion. The surety did not find the defendant, and the bond was forfeited. On appeal, the Court noted the waiver agreement but also held that the 120 day period to seek enforcement of a forfeiture order runs from adjournment of the court in which a finding is made that the failure to appear was unexcused and an order of forfeiture entered.

In Seneca Insurance Co. v. People, 834 N.Y.S.2d 581 (N.Y.A.D. 2007) the defendant was initially indicted on six counts of drug and weapons violations. The surety posted an $80,000 bond, and the defendant was released pending trial. Some eight months later, he was indicted on two additional counts of drug charges, and the court set an additional $10,000 bond, which the surety also posted, and required the surety to state that it would continue to maintain the $80,000 bond. The defendant was acquitted of the charges in the first indictment and did not appear for trial on the second indictment. The court forfeited the entire $90,000, and the surety sought remission of $80,000 on the ground that it covered only the first indictment. The court denied its request, and the surety appealed.

The Appellate Division reasoned that a bond is a contract to be interpreted according to its terms, and noted that the terms, “must be construed strictly in the surety’s favor and the surety’s obligations cannot be extended beyond the plain language of the bonds.” The $80,000 bond made no reference to the second indictment. It was unambiguous on its face and should have been enforced as written. Even if the discussion at the time of the second indictment were considered, however, it would be insufficient to modify the surety’s obligation under the first bond. The Appellate Division reversed the trial court and directed that the order of forfeiture be vacated.

In Corrales v. Walker, 2008 WL 1944226 (N.Y.Dist.Ct. April 4, 2008) the defendant appeared and was sentenced to probation. After she violated the terms of her probation, the court ordered her to appear and forfeited the bond when she did not. The bond, however, had been exonerated by operation of law when the defendant was sentenced. The surety retained counsel, had the forfeiture judgment set aside, and demanded that the indemnitor on the bond reimburse its counsel fees. When the indemnitor failed to pay, the surety had a confessed judgment entered against her, and she moved to set the confessed judgment aside. The court held that the confessed judgment clause and the indemnity agreement covered only expenses “in connection with the bond,” and the bond terminated when the defendant was sentenced. The counsel fees were not in connection with the bond, and the court set aside the confessed judgment.

State v. Poteat, 594 S.E.2d 253 (N.C. App. 2004) held that N.C. Gen. Stat. §15A-544.5(f) barred the court from setting aside the bond forfeiture. The statute provides that a forfeiture cannot be set aside for any reason if the surety or bail agent had “notice or actual knowledge” before executing the bond that the defendant had failed to appear on two or more prior occasions. The court held that “notice” includes constructive as well as actual notice, and that the facts of the case were sufficient to put the bail agent on constructive notice of the defendant’s two prior failures to appear.

In State v. Evans, 601 S.E.2d 877 (N.C. App. 2004) , affirmed 610 S.E.2d 198 (N.C. 2005) the surety surrendered the defendant before expiration of the 150 day period at the end of which the forfeiture would become final. The surety also filed a timely motion to set aside the forfeiture, but the surety did not actually mail the motion until 9 days after the date he certified he had mailed it. Such delay in mailing seemed to be this surety's pattern of behavior and had the effect of reducing the Board of Education's time to respond to the motion. The trial court denied the motion based on the delayed mailing (by statute the surety was entitled to have the forfeiture set aside when he surrendered the defendant, so the motion should have been granted if addressed on its merits). The surety did not appeal that denial but several months later filed a motion for relief from the judgment. In a 2-1 decision, the Court of Appeals held, in effect, that being right was not a sufficient "extraordinary circumstance" mandating relief from a final judgment. The dissent disagreed and thought that precedent established the post-judgment relief should have been granted.

State v. Robertson, 603 S.E.2d 400 (N.C. App. 2004) is a case which cries out for legislative correction. The defendant was incarcerated in a county jail on a fugitive warrant on the day he was supposed to appear. The surety timely moved for relief from forfeiture. The trial court granted the surety relief, and the court of appeals reversed. The court applied the relevant statute, G.S. §15A-544.5, literally and held that since the defendant was not incarcerated in a "unit of the Department of Corrections and is serving a sentence" no relief could be granted. The surety argued that it met the spirit if not the letter of the law. The court's answer was that "This argument, however, is for the General Assembly to address. We are bound by the statute." Presumably the School Boards in North Carolina, which receive the money from bond forfeitures, will now start opposing any relief based on the fact that the defendant was incarcerated if he or she was not in a state Department of Corrections unit and also serving a sentence.

In State v. Saunders, 2005 WL 14108 (N.C. App. January 4, 2005) the clerk delayed for 18 months in mailing the surety notice of the defendant's failure to appear and entry of the order of forfeiture, but the judgment was not entered until more than the required 60 days after the notice was given. The court found that the surety was not prejudiced by the delay; indeed if the surety had been monitoring the case it would have had a substantial additional period to locate and return the defendant. The court also held that the statute in effect at the time the bond was issued controlled, and that the addition of a street address above the surety's post office box did not make mailing of the notice defective. State v. Moore County Board of Education, 2005 WL 90939 (N.C. App. January 18, 2005) held that post judgment proceedings challenging an order granting relief from forfeiture was subject to the civil rules of procedure, and therefore the Board of Education's motion for reconsideration of the order was timely and should have been decided on its merits. The Court did not consider whether granting the surety relief from the forfeiture was proper. The case was remanded to consider the Scholl Board's motion on its merits.

State v. Belton, 610 S.E.2d 283 (N.C. App. 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk's office and a certificate of mailing in the file. The surety filed an affidavit of one of its employees that the notice was not received, but the Court held that there was sufficient evidence to support the trial court's finding of fact that the notice was mailed. The court refused to consider two other arguments because they were not included in the assignments of error in the appeal.

State v. Banuelos, 2005 WL 756893 (N.C. App. April 5, 2005) held that notice of forfeiture was mailed to the surety based on testimony on the normal practices of the clerk's office, a certificate of mailing in the file and the undeliverable returned envelop sent to the defendant and kept in the court file. An employee of Capitol Bonding Corporation testified that the notice was not received. The court noted that she admitted she had filed seven to ten affidavits claiming that notices from various other counties in North Carolina had not been received. The Court held that there was sufficient evidence to support the trial court's finding of fact that the notice was mailed. The court refused to consider several other arguments because they were not included in the assignments of error or not addressed in the surety's brief. This appeal is virtually identical to State v. Belton decided on the same day.

State v. Paulino, 2005 WL 756890 (N.C. App. April 5, 2005) is almost identical to State v. Belton, 2005 WL 756621 and State v. Banuelos, 2005 WL 756893 decided by the same court on the same day. In each case, Aegis Security Insurance Company appealed denial of relief from bond forfeiture on the ground that notice of the forfeiture was not properly mailed. In each case, the same employee of Capitol Bonding Corporation testified the notice was not received. In each case the Court affirmed the trial court based on the court clerk's description of the standard procedure to mail the notices and the contents of the record in the case file.

State v. Lopez, 2005 WL 887270 (N.C. App. April 19, 2005) and State v. Rodriguez, 2005 WL 892475 (N.C. App. April 19, 2005) are two more cases in which the Court affirmed forfeiture of bonds in spite of testimony by an employee of Capital Bonding that notice of the forfeiture was not received. The trial court held a hearing, and the state's only evidence was the certificates of mailing from the court files. The Court of Appeals held that this was sufficient to support a finding that the notices were mailed as required by the statute.

State v. Ferrer, 611 S.E.2d 881 (N.C. App. 2005) is another appeal by Aegis based on testimony by the same Capitol Bonding employee that notice of forfeiture was not received. Two deputy court clerks testified on the procedures to mail forfeiture notices (one of them also remembered mailing the notice), and the trial court found that the notice was mailed. The Court of Appeals affirmed refusal to vacate the forfeiture judgment.

State v. Ochoa, 2005 WL 1018070 (N.C. App. May 3, 2005); State v. Landaver, 2005 WL 1018073 (N.C. App. May 3, 2005) and State v. Flores, 2005 WL 1018153 (May 3, 2005) are three more appeals by Aegis Security Insurance Co. of denials of motions to set aside bond forfeitures for lack of evidence of mailing and the alleged unconstitutionality of the bond forfeiture statute. In each case, the Court affirmed the trial court citing State v. Ferrer.

State v. Edwards, 2005 WL 1949517 (N.C. App. August 16, 2005) held that recovery of the defendant after the final judgment of forfeiture had been entered did not constitute "extraordinary circumstances" entitling the surety to relief from the judgment as a matter of law. If the defendant had been returned before final judgment, the court pursuant to G.S. §15A-544.5(b)(3) "shall" set the forfeiture aside. Once the judgment is entered, however, G.S. §15A-544.8 controls and the judgment can be set aside only if proper notice of the forfeiture was not given or the court, in its discretion, finds "extraordinary circumstances" entitling the surety to relief. In this case, the trial court denied relief, and the Court of Appeals affirmed. From the discussion, it seems likely that if the trial court had granted relief, that also would have been affirmed. The concurring judge noted that without a reasonable hope of relief, there is no reason for the surety to spend time and money trying to apprehend the defendant once a judgment is entered.

In State v. Sanchez, 623 S.E.2d 780 (N.C.App. 2005) the defendant failed to appear and the court directed that a warrant be issued and the bond forfeited. The clerk, however, did not mail notice of the forfeiture until 36 days later. N.C. Gen. Stat. §15A-544.4(e) provides that the notice must be mailed not later than the thirtieth day after the date on which the forfeiture is "entered." The surety moved to set aside the forfeiture, and the trial court denied the motion. The surety appealed, and the parties argued whether the forfeiture was "entered" when the court declared the forfeiture or when the clerk prepared the bond forfeiture notice and keyed the information into the Civil Case Processing System. The Court of Appeals refused to decide the issue because it thought that under N.C. Gen. Stat. §15A-544.5 relief from a forfeiture can be granted for only certain enumerated reasons, and late notice is not one of them. Late notice is a grounds to grant relief from a final judgment of forfeiture under N.C. Gen. Stat. §15A-544.8. In effect, the Court of Appeals held that the surety would have to wait until a judgment was entered and then appeal that as the only way to gain review of the late notice issue.

In State v. Hernandez, 2006 WL 389643 (N.C.App. February 21, 2006) the defendant failed to appear and the bond was forfeited. The clerk, however, did not mail notice of the forfeiture until five months later. North Carolina Gen. Stat. §15A-544.4 required that notice be mailed within 30 days, and on the surety's motion the trial court entered an Order that set aside the forfeiture, directed that no enforcement of the forfeiture be undertaken, the Department of Insurance not be notified, and that the surety be exonerated from all further liability. No appeal was taken from this Order, but the state noticed another appearance in the case and had a new forfeiture entered when the defendant again failed to appear. The surety moved to vacate this second forfeiture on the ground that the bond had been exonerated and no longer secured the defendant's appearance. The trial court granted the motion, and the Board of Education appealed. The Court of Appeals thought that exoneration of the bond because of the clerk's failure to mail timely notice was of doubtful validity because late notice is not one of the statutory grounds for exoneration, but it held that the Board's failure to appeal the trial court's Order exonerating the bond made that Order final and conclusive. It therefore affirmed the trial court's granting of the surety's motion to vacate the second forfeiture. State v. Hollars, 2006 WL 537481 (N.C.App. March 7, 2006) affirmed denial of the surety's motion to set aside forfeiture of the bond. The defendant failed to appear and the surety was given notice. Before the final judgment date, the defendant was arrested in Tennessee, and the surety's agent appeared in Tennessee and "surrendered" the defendant to the sheriff there. The surety moved to set aside the forfeiture. The Court held that when N.C. Gen. Stat. §15A-540(b) says "a surety may surrender a defendant who is already in custody of any sheriff by appearing in person and informing the sheriff that the surety wishes to surrender the defendant" it means any sheriff in North Carolina. State v. Walker, 2006 WL 997856 (N.C.App. April 18, 2006) held that the professional bondsman knew or should have known that the defendant had failed to appear at least twice prior to the time the bond was written and, therefore, under N.C. Gen. Stat. 15A- 544.5(f) forfeiture of the bond could not be set aside for any reason. The Court of Appeals reversed the trial court and reinstated the forfeiture even though the bondsman showed that the charges were resolved. The bond showed the charge as failure to appear, and with that notice the bondsman could have found the other failures to appear from the court record. The Court stated, "with notice that Walker had a prior failure to appear, Trogdon [the bondsman] could have discovered through the exercise of proper diligence that Walker had a second prior failure to appear." The statute requires notice or actual knowledge of two prior failures to appear, but the Court essentially waters that down to notice or actual knowledge of one failure to appear with the second supplied by what the agent or surety could have found in the court record.

In State v. Teague, 2006 WL 998083 (N.C.App. April 18, 2006) the Court dismissed the School Board's appeal of a decision to remit forfeiture of the bond because the trial court did not enter its decision via a written order.

State v. Ramirez-Marciano, 2006 WL 2807206 (N.C.App. October 3, 2006) dismissed the surety’s appeal because there was nothing in the record to show that the trial court entered the judgments from which the appeals were taken. The surety recovered the defendant after final judgment and filed motions for relief. The trial court’s oral judgment was to grant relief for only $3,000 of the $13,500 of forfeitures, but that decision apparently was not reduced to writing and filed in the record. The surety nevertheless filed a notice of appeal. The Court of Appeals held that entry of judgment requires a written order signed by the judge, and since the surety did not demonstrate that had occurred, the Court of Appeals lacked jurisdiction.

State v. Pickering, 2006 WL 2807210 (N.C.App. October 3, 2006) dismissed the surety’s appeal for lack of jurisdiction because no judgment was entered in the trial court. This case is identical to State v. Ramirez-Marciano, 2006 WL 2807206 (N.C.App. October 3, 2006) except for the name of the defendant and amount of the bond.

In State v. Toomer, 643 S.E.2d 84 (N.C.App. 2007) the defendant failed to appear because he was incarcerated in another county. The surety was granted relief from forfeiture of its bond, and the School Board (the recipient of forfeitures in North Carolina) appealed. The Court held that the surety was not entitled to relief because under N.C.Gen.Stat. §15A-544.5 the defendant has to be incarcerated in a unit of the state Department of Corrections or a federal prison in North Carolina, and a county jail does not qualify. This ludicrous result was also reached in State v. Robertson, 603 S.E.2d 400 (N.C. App. 2004).

In State v. Reyes, 2007 WL 1247088 (N.C.App. May 1, 2007) the defendant fled during trial. The court forfeited bail and issued a bench warrant, but it also continued with the trial, and the jury found the defendant guilty. The court then continued the “prayer for judgment” until the defendant was returned. The surety moved to set aside the forfeiture pursuant to N.C.Gen.Stat. §15A-544.5(b)(2), which provides for setting aside a forfeiture if the charges have been “finally disposed by the court.” The Court of Appeals held that continuing the case was not an appealable, final judgment, therefore the case had not been finally disposed of and the statute did not apply. It also pointed out that the bond itself provided that it would remain in effect until entry of judgment, and that had not yet occurred. The Court affirmed the trial court’s denial of the surety’s motion.

In State v. Beasley, 2007 WL 1745889 (N.C.App. June 19, 2007) the defendant was arrested on a series of traffic offenses and released on personal appearance bonds. In each instance he failed to appear and warrants were issued. He was also arrested on another charge and released on surety bonds for the traffic offenses and other charge. Before his appearance dates, he was arrested in another county on an unrelated charge, and the surety executed a “Surrender of Defendant by Surety.” He failed to appear in the cases in which the surety had issued bonds, and forfeitures were entered. The surety filed motions to set aside the forfeitures on the grounds that the defendant was incarcerated. The trial court denied the motions, and the surety did not appeal. Instead, the surety filed motions for relief from the judgments on the grounds that the surety had surrendered the defendant and terminated the bonds prior to the appearance dates. The trial court also denied the motions for relief from judgment.

On appeal, the Court held that the initial denials of the surety’s motions to set aside the forfeitures were final, appealable judgments, and that the failure to appeal barred any further relief as to those motions. On the motions for relief from judgment, the surety failed to show the required “extraordinary circumstances” to justify relief, and the trial court did not abuse its discretion in denying the motions. The Court stated that events that would have required setting aside a forfeiture before final judgment were not automatically “extraordinary circumstances” to justify post-judgment relief. In State v. Bakri, 651 S.E.2d 266 (N.C.App. 2007) the surety located the defendant in another state after final judgment forfeiting the bond had been entered. The surety’s agents took the defendant to local law enforcement officials, but the North Carolina warrant was not in the NCIC database. A warrant from New Jersey was, however, and he was extradited to New Jersey and sentenced to a lengthy prison term. The surety offered to pay the costs to bring him from New Jersey to North Carolina, but the District Attorney did not request extradition. The surety applied for relief from the judgment, which the trial court denied. The only issue on appeal was whether the surety established “extraordinary circumstances” entitling it to relief. The surety argued that the District Attorney’s Office had agreed to seek extradition and its breach of that promise qualified. The Court of Appeals thought that the record did not establish such a promise and, in any case, the trial court did not abuse its discretion in finding no extraordinary circumstances. In State v. Escobar, 652 S.E.2d 694 (N.C.App. 2007) the defendant failed to appear, notice was given to the surety, and a final judgment of forfeiture entered after expiration of the statutory 150 day period. The surety and its agents determined that the defendant had been deported to Mexico, returned to the United States illegally under an alias, and was incarcerated in another state. The surety provided this information to the prosecutor, and the defendant was eventually returned to North Carolina. The surety moved for relief from the forfeiture for “extraordinary circumstances” under N.C. Gen. Stat. §15A-544.8. The trial court denied relief, and the surety appealed.

The existence of extraordinary circumstances is within the discretion of the trial court, and the Court of Appeals reviewed for abuse of discretion. Due diligence or the mere return of the defendant is not automatically extraordinary circumstances because due diligence is expected of the surety. The trial court found that the surety knew the defendant was born in Mexico, did not determine his immigration status, and did not diligently monitor him prior to his deportation. The surety did not cause his arrest after he failed to appear. The surety only located him after he had been arrested by law enforcement authorities in another state. The Court of Appeals held that on these facts denial of relief from the judgment of forfeiture was not an abuse of discretion.

State v. Massey, 2007 WL 4105554 (N.C.App. November 20, 2007) held that the trial court abused its discretion in returning the forfeited bond amount. After final judgment was entered and the surety, the defendant’s father, paid the forfeiture, the surety moved for relief because of extraordinary circumstances. The defendant was incarcerated in another state at the time of his arrest warrant, and the surety notified the district attorney’s office of his location. The trial court found that these facts constituted extraordinary circumstances and remitted the forfeiture. The Court of Appeals reversed because incarceration in another state is not an extraordinary circumstance and the surety did not return the defendant to North Carolina. Merely notifying the district attorney of the defendant’s location is not sufficient to constitute extraordinary circumstances. In State v. Credle, 2008 WL 1723438 (N.C.App. April 15, 2008) the defendant failed to appear and the surety was sent notice of forfeiture. The defendant was re-arrested shortly thereafter and the charges resolved. If the surety had filed a timely motion to set aside the forfeiture, the motion would have been granted. The surety did not file a motion, however, and after the 150 day period expired the court entered a final judgment of forfeiture. The surety moved to set aside the judgment on the grounds of “extraordinary circumstances” and the court granted partial remission of the bond. The State appealed, and the Court of Appeals held that the trial court had not made findings of fact or conclusions of law to justify any “extraordinary circumstances.” The trial court’s findings would have justified setting aside the forfeiture had a timely motion been filed, but they did not explain any extraordinary circumstances to justify setting aside the final judgment. The Court vacated the trial court’s order and remanded the case for the trial court to make appropriate findings of fact and conclusions of law.

In State v. Lazaro, 660 S.E.2d 618 (N.C.App. 2008) and State v. Rodrigo, 660 S.E.2d 615 (N.C.App. 2008) the defendants failed to appear and notices of forfeiture were timely sent to the surety. In each case the defendant was arrested and held in the county jail prior to entry of final judgment against the surety. The surety asserted that the defendants were released to the federal government and deported. The trial court granted relief from the forfeitures, and the School Board appealed. The Court reversed the trial court and held that under N.C. Gen. Stat. §15A-544.5(b), prior to its amendment in 2007, incarceration in the county jail and deportation by federal authorities were not grounds for relief from forfeiture. Since the defendants’ failures to appear were not excused by any of the statutory grounds, final judgments should have been entered on the bonds. In State v. Lynch, 2009 WL 367771 (N.C.App. February 17, 2009) the defendant failed to appear and the clerk mailed a bond forfeiture notice which the surety received. The bond listed the defendant as “Danielle A. Lynch” and the release order named “Danielle Antwane Lynch,” but the other court documents and the notice said “Daniel Antwane Lynch.” The surety moved for relief from the judgment, to require the clerk to mail a corrected notice, and to extend the final judgment date to 150 days for the mailing of the corrected notice. The surety did not show any prejudice from the inconsistency in the names and knew the notice was for its bond. The Court held that the notice contained the name and address of the defendant as required by N.C.Gen.Stat. §15A-544.3 and affirmed judgment against the surety.

In State v. Hollars, 2009 WL 678692 (N.C.App. March 17, 2009) the defendant failed to appear and the trial court entered a judgment of forfeiture. The surety moved to set aside the forfeiture because the defendant was incarcerated in Tennessee. The trial court denied the motion, and the denial was affirmed on appeal. The surety then moved for relief from the judgment and the trial court granted that motion. On appeal, the Court held that the surety established extraordinary circumstances justifying relief from the judgment. The surety acted diligently, located the defendant and enabled his return and eventual conviction. The Court also rejected the Board of Education’s contentions that the hearing on the surety’s motion was not scheduled within a reasonable time and that denial of the earlier motion to set aside the forfeiture was res judicata and barred the later motion for relief from the judgment. The Court also held that the three year time period in which to seek relief from the judgment was tolled while the earlier motion to set aside the forfeiture was not yet final including while execution on the judgment was stayed during pendency of the appeal.

In City of Xenia v. Diaz, 2003 WL 22972039 (Ohio App. December 19, 2003) the court treated a cash deposit made by a third party as a cash bond by the defendant and not as a surety bond. The defendant was subject to an INS detainer, and even though bond was posted he never was released from custody. It appears the City did not try to have him returned for trial. The court held that the appellant who furnished the cash was not entitled to the statutory pre-forfeiture notice and an opportunity to show why the bond should not be forfeited which a surety would have been entitled to receive. It held, however, that he was entitled to a post forfeiture hearing to try to show that performance of the obligation was impossible (i.e., that the defendant was in federal custody). This case ought to give pause to anyone considering posting cash bail instead of a surety recognizance in Ohio. It is clear that the procedural protections extended to the surety will be lost if cash bail is provided.

In State v. Delgado, 2004 WL 41404 (Ohio App. January 9, 2004) the trial court granted two extensions of time for the bail bond surety to apprehend the defendant but refused to remit any portion of the forfeiture when the defendant was returned shortly after forfeiture. The trial court's only reasoning was that the nature of the surety's business was to assume the risk that the defendant would not appear. The Court of Appeals reversed and remanded holding that the trial court had to consider a number of factors including the delay and cost to the state in obtaining the defendant and preparing for trial a second time, the surety's efforts to return the defendant, and any other factors the court finds to be relevant. The trial court has discretion but must exercise it in light of the purpose of bail to assure that the defendant appears at all stages of the proceeding. In State v. Hardin, 2003 WL 23167301 (Ohio App. December 31, 2003) motions for remission of bond forfeitures were filed without requesting a hearing or setting forth any factual basis for relief. The trial court denied the motions without a hearing. The court of appeals affirmed, in a 2-1 decision, even though there was no basis in the record to review whether the trial court considered the various factors governing requests for remission of forfeiture. If the sureties had asked for a hearing and alleged facts entitling them to relief, the opinion suggests they would have been entitled to a hearing. Jones v. Bea, 2004 WL 442876 (Ohio App. March 12, 2004) is a very strange case. The defendant’s father testified he obtained a $15,205 cashiers check payable to the Clerk of Court to pay a 10% cash bond plus fees to the clerk (he would have been liable for the balance of the $120,000 bond if his son failed to appear) but the bail agent waylaid him at the clerk’s office and insisted on signing the bond for the balance as surety, and they agreed that when the $15,000 was returned the bail agent would give the father $8,000 of the $15,000 and keep the rest as his fee. The defendant did not appear for sentencing and the bond was forfeited. The father then sued the bail agent for converting the cashiers check and won. The Court of Appeals reversed and held that since there was no refund there was no obligation to return anything.

In State v. Harshman, 2004 WL 491410 (Ohio App. March 15, 2004) the trial court ordered that cash bail deposited by the defendant and his mother be applied to court costs and restitution. The Court of Appeals held that this was improper. The Court first noted that the Ohio Supreme Court has held that the purpose of bail is the appearance of the defendant and reasons for forfeiture must be related to nonappearance. The State argued that the form signed when the bail was deposited consented to its application to costs and restitution, but the Court held that the consent was invalid because the availability of bail was conditioned on signing the form.

In State v. Rich, 2004 WL 2390085 (Ohio App. October 22, 2004) the surety (Capital Bonding Corp.) appealed denial of its motions to remit bond forfeitures in two cases in which it surrendered the defendants after forfeiture was entered. In the two cases the trial court made identical findings, including that the surety was negligent in writing the bond because the defendant had failed to appear on prior occasions. The Court of Appeals first held that the 30 day period to appeal ran from the date the clerk entered the defendant's sentence, not the date the bond was forfeited or the date the motion for remission was denied. The Court also held that the trial court did not abuse its discretion in one of the cases because the record supported its findings but that in the other case there was no evidence the defendant had failed to appear on a prior occasion or that the state was inconvenienced by the failure to appear. In the latter case, the Court reversed and remanded for a determination of how much of the forfeiture should be remitted.

State v. Owens, 2004 WL 2526412 (Ohio App. November 9, 2004) held that the trial court abused its discretion in ordering forfeiture of the defendant's cash bond. The trial court failed to consider the brief delay between the defendant's breach and her voluntary appearance and the lack of any cost or inconvenience to the state. Rather than remand for consideration in light of these factors, however, the Court of Appeals directed that the bond money be released.

In Maloney v. Ohio Department of Insurance, 2004 WL 2590952 (Ohio App. October 4, 2004) the Court affirmed the Department's denial of a bail bondsman's license to a convicted felon. Ohio R.C. 3905.14 specifically provides that the superintendent of insurance may deny an application based on such a conviction, and there was no abuse of discretion in doing so in this case.

In City of Willoughby v. Beckwith, 2005 WL 880220 (Ohio App. April 15, 2005) the surety filed a motion to vacate forfeiture of its bond and a motion for reconsideration of the denial of the motion to vacate. It then appealed denial of the motion for reconsideration. The Court dismissed the appeal on the grounds that the surety could have appealed the original order of forfeiture or the order denying its motion to vacate the forfeiture, but that a motion for reconsideration of a final order, and any decision on such a motion, are nullities from which no appeal can be taken. Therefore, the appeal was untimely and was dismissed.

Castle Bail Bonds, Inc. v. Stoneman, 2005 WL 1005276 (Ohio App. April 28, 2005) affirmed summary judgment for the surety against the indemnitors (the parents of the defendant) based on a promissory note and indemnity agreement they signed. The court rejected the indemnitors' argument that they should not be liable because they did not read what they signed or no one explained it to them.

State v. Sheldon, 2005 WL 1283681 (Ohio App. May 27, 2005) held that a bail bond can be revoked for violation of conditions other than appearance, but that a forfeiture could be entered only if the defendant failed to appear. The defendant's presence at the hearing to show cause why the bond should not be forfeited prevented the trail court from entering a partial forfeiture, and the trial court's judgment was reversed. State v. Stoneman, 2005 WL 1384662 (Ohio App. June 9, 2005) denied the surety's motion to remit all or part of the bond forfeiture. The defendant fled, and the surety was unable to recover him in spite of several time extensions. After the bond was forfeited, the defendant was captured by law enforcement authorities in Canada and returned to Ohio. The court refused to remit any part of the forfeiture and held that the surety's small expense in trying to locate the defendant weighed against the major, successful efforts of law enforcement personnel fully justified the trail court's denial of any remittitur. Smith v. Leis, 835 N.E.2d 5 (Ohio 2005) held that cash only bail violated the provision of the Ohio Constitution guarantying that “all persons shall be bailable by sufficient sureties . . . .” Prior to 1998, the Court had held in several cases that the sufficient sureties clause barred cash only bail, but in 1998 the Constitution was amended, and the issue before the Court was whether the amendments changed that result. In a 4-3 decision, the Court held that it did not. The purpose of the amendment was to allow pre-trial detention, under certain circumstances, of defendants charged with less than a capital offense. Among other things, the amendment added the following to Section 9, Art. I, “the court may determine at any time the type, amount, and conditions of bail.” The Court thought that reading Section 9 as a whole, the added language did not give the court an option to prohibit bail by sufficient sureties.

In State v. Hodge, 2005 WL 2936283 (Ohio App. November 7, 2005) the defendant posted a $50,000 cash bond and fled to Florida. She was arrested there and returned. The state incurred costs of about $6,000 to transport her back to Ohio. The Court affirmed denial of her motion for partial remission of the forfeiture. Her failure to appear was willful, and she was apprehended in Florida and involuntarily returned. The factors to be considered in a request for remission are the cost and inconvenience to the state, the willfulness of the violation and such other factors as the trail court finds relevant. The court properly balanced the relevant factors and denial of the defendant's motion was not arbitrary, unreasonable or unconscionable.

In State v. Carter, 2005 WL 3337733 (Ohio App. December 9, 2005) the defendant had failed to appear in court 66 times in the past including at least three times in this case. Nevertheless, the bail agency provided a bond, the defendant did not appear, and the bond was forfeited. After the police arrested the defendant, the bail agency moved to remit the forfeiture. The trial court denied the motion, and the Court of Appeals affirmed. Remission is within the discretion of the trial court, and none of the factors to be considered favored remission. The Court noted the defendant’s history and stated, “A company engaged in the bail bond business is ultimately engaged in the business of guaranteeing attendance of the defendant at court hearings.”

In State ex rel. D & D Bonding, Ltd. v. Johnston, 2005 WL 3497709 (Ohio App. December 13, 2005) a bail bond agency and its owners and employees sought writs of Prohibition and mandamus to compel the Judge and Clerk of the Jackson County Municipal Court to accept bail bonds from them. The Court denied all relief. The facts are somewhat muddled, but on January 1, 2004, the Judge issued a bail bond schedule that permitted only cash bonds. On January 23 she withdrew that schedule and issued a replacement that permitted either 100% surety bonds or 10% cash bonds. The plaintiffs did not challenge the disparate treatment of surety bonds and cash bonds. The Court denied as moot the request for an order directing the Judge to accept surety bonds. The plaintiffs also alleged that the Judge instructed the Clerk not to accept their bonds, but the proof did not support the allegation. The Court also stated that the Judge would have been within her discretion to order the clerk’s office to refuse bonds from an agency if she had doubts about the agent’s authority or intention to pay forfeitures. State v. Warden, 2005 WL 3507844 (Ohio App. December 23, 2005) held that cash bail deposited by someone other than the defendant could not be used to pay the defendant’s fine. The Court stated that a bail bond can be forfeited only for failure to appear and that cash or securities deposited by anyone other than the defendant cannot be used to pay the defendant’s legal obligations except with the consent of the person making the deposit. In State v. Johnson, 2006 WL 235042 (Ohio App. January 27, 2006) the defendant failed to appear for sentencing on March 28, 2005, and the court forfeited his bond and ordered the defendant and the surety to appear on April 25 to show cause why judgment should not be entered on the bond. This had the effect of giving the defendant until April 25 to appear and giving the surety until April 25 to produce the defendant. On April 19 the defendant's lawyer filed a motion to continue the sentencing date because the defendant was allegedly shot on April 16 and was incapacitated in a hospital. On May 6 the court entered judgment on the bond.

On appeal, the surety argued that the motion told the state where to find the defendant, and the state should have arrested him. The court held that the state was not subject to estoppel, the theory advanced by the surety, but that the information in the motion filed by the defendant's attorney, if true, was a basis for a finding of good cause for the inability of the surety to exonerate the bond by producing the defendant in court on or before the show cause hearing on April 25. The court reversed the judgment and remanded the case. The court rejected the surety's other argument that a subsequent bond replaced its bond, and held that the second bond was additional security not a replacement.

In Smith v. Leis, 2006 WL 256733 (Ohio App. February 3, 2006) the defendant was convicted of various felonies but the Court of Appeals reversed the conviction because the anonymous tip that led to a search of the defendant’s car was not sufficiently reliable. The State appealed to the Ohio Supreme Court. The issue, raised by the defendant through a habeas corpus petition, was his release on bail during the State’s appeal. The trial court set bail at “$500,000 no 10%.” The Court of Appeals initially reduced it to $50,000 but in this decision on reconsideration held that the defendant had to be released on his own recognizance. Ohio Criminal Rule 12(K) would have required such a release if the trial court had suppressed the evidence and the State appealed to the Court of Appeals. In this case, of course, the trial court convicted the defendant and the Court of Appeals suppressed the evidence. The majority thought the situation was analogous and the defendant had to be released. The dissenting Judge disagreed and would have stuck with the $50,000 bail set before reconsideration. The case discusses the bail options available under Ohio Criminal Rule 46 and how the trial courts should use them. State v. Thornton, 2006 WL 401594 (Ohio App. February 17, 2006) reversed and remanded the trial court’s order remitting only 40% of the bond forfeiture. The defendant failed to appear during his trial but was convicted. The surety located him less than a month later and had the police arrest him. The state made no showing of delay or expense other than the police making the arrest. The trial court thought that the surety made an inadequate investigation of his background and the likelihood he would appear before it wrote the bond. The Court of Appeals held that under the circumstances it was an abuse of discretion to forfeit 60% of the bond.

In State v. Hancock, 2006 WL 827386 (Ohio App. March 31, 2006) the defendant failed to appear and the bond was forfeited. The defendant appeared before the hearing to show cause, however, and the court reinstated the bond without notice to the surety or the surety's consent. The defendant eventually pled guilty but did not appear for sentencing. The trial court forfeited the bond and in due course entered judgment against the surety. The Court of Appeals vacated the judgment because Ohio law permits forfeiture of bonds and remission of forfeitures, but it does not permit reinstatement of a forfeited bond. Once the bond is forfeited, if the defendant appears the court must require a new bond and consider remission of the forfeiture. In this case, the bond was forfeited the first time the defendant failed to appear, and on remand the trial court was directed to consider remission of that initial forfeiture.

In State v. Hein, 2006 WL 1541036 (Ohio App. June 7, 2006) the court dismissed the surety's appeal for lack of jurisdiction. When the defendant failed to appear, the trial court noted, "Surety bonds posted to be forfeited" and the clerk sent the surety a letter stating that the bond had been forfeited, but the court never actually ordered forfeiture. The surety moved to vacate the non-existent forfeiture, and the trial court denied the motion. Nevertheless, the Court of Appeals found no actual forfeiture order in the records and therefore no final judgment from which an appeal could lie.

State v. Johnson, 2006 WL 1791262 (Ohio App. June 30, 2006) is a roadmap of how not to seek remission of a bond forfeiture in Ohio. The defendant failed to appear and the court revoked the bond, issued a bench warrant, and scheduled a forfeiture hearing. At the hearing a representative of the surety appeared but the bond was forfeited. A month later, the surety filed a “Notice of Surrender and Motion to Vacate Bail Bond Forfeiture.” The court denied the motion but granted the surety leave to file a motion for remission of the bond. Instead of following the court’s suggestion, the surety filed a “Supplemental Brief in Support of Motion to Vacate Bail Bond Forfeiture.” The court construed this as a duplicate of the motion it had already denied and refused to rule on it. The surety appealed from that order. The Court of Appeals held that there was no timely appeal from either the forfeiture order or denial of the motion to vacate the forfeiture order. Even if the refusal to rule on the “Supplemental Brief” were considered an order, it would be denial of reconsideration after a final judgment was entered, and the trial court had no jurisdiction to reconsider its final judgment. Any decision on such a motion would be a nullity. The Court dismissed the appeal.

State v. Smith, 2006 WL 2574582 (Ohio App. September 1, 2006) affirmed the trial court’s refusal to remit any part of the bond forfeiture even though the surety had recovered the defendant some eight months after he fled during trial. The court first determined that the appeal was timely even though the surety failed to appeal the forfeiture or denial of its first motion for remission. The Court held that Civil Rule 58 applied to the bond forfeiture and required that the surety be given notice of entry of the judgment in order to make the judgment final and appealable. Since the notice was not given, the earlier judgments were not final. On the merits of the appeal, however, the trial court considered the proper factors and was within its discretion in denying any remission. The Court mentioned that the defendant had been in jail for five months and paid only $3,000 of the $5,000 bond premium as evidence that the surety did not act responsibly in writing the bond.

In State v. Martin, 2007 WL 2164151 (Ohio App. July 27, 2007) the defendant failed to appear and the court notified the surety that the bond would be forfeited if the defendant did not appear by June 15. On May 11 the court telephoned the bail agent and told him to produce the defendant by June 16 or face forfeiture of the bond. On May 17, the bail agent appeared before the court to request more time. On June 19 the court entered an order that both forfeited the bail and entered judgment against the surety. The court did not comply with the notice requirement of Ohio R.C. §2937.36(C) which provides that upon forfeiture the clerk shall send the surety by mail a notice to show cause, on a date at least 20 and not more than 30 days from the date the notice is mailed, why judgment should not be entered against the surety.

In a 2 to 1 decision, the Court of Appeals adopted a “no harm no foul” reading of the statute. Because the bail agent knew the defendant had not appeared and that a forfeiture would be entered, he could have presented any reasons he had why judgment should not have been entered. The Court relied on State v. Ward, 372 N.E.2d 586 (Ohio 1978) in which the Ohio Supreme Court affirmed use of a conditional judgment in which the judgment was entered before the notice but provided that it would become final in 20 days if the surety did not produce the defendant.

The dissenting judge pointed out that the statute gives the surety a right to written notice and an opportunity to show cause why a judgment should not be entered against it after the bail is forfeited. The surety is entitled to 20 to 30 days after notice of forfeiture to produce the defendant or otherwise show cause, and the procedure sanctioned by the majority deprived the surety of that opportunity by combining forfeiture of the bail and entry of final judgment against the surety in one order. The dissent pointed out that unlike the Ward case, here there was no conditional judgment that did not become final if the surety produced the defendant.

In State v. Munn, 2007 WL 2430091 (Ohio App. August 27, 2007) the defendant failed to appear but the bail agent recovered him within 60 days. The trial court followed a Stark County Local Rule and remitted 25% of the bond. The Court of Appeals recognized that the case law requires consideration of a series of factors and the exercise of discretion by the trial court, but in this case the surety’s attorney did not argue to the trial court that it should go beyond the Local Rule or that it should consider the various factors and exercise discretion. In effect, the surety in the trial court acquiesced in application of the Rule and did not preserve for appeal its argument that the trial court erred in considering nothing beyond the Rule. The Court thus affirmed the trial court’s judgment on a procedural point, but the opinion at least suggests that in a proper case the Court might find that blind adherence to the Local Rule is incompatible with the trial court’s duty to exercise discretion.

In East Liverpool v. Stith, 2007 WL 2582593 (Ohio App. September 5, 2007) the defendant pled no contest and was sentenced to 30 days in jail and unsupervised probation. The court continued his bond until he “begins jail sentence.” He failed to appear to serve his sentence, and the court forfeited the bond. The surety argued that the trial court lost jurisdiction when it sentenced the defendant to probation, which started immediately, and that the court could not condition the bond on appearance anywhere but in court. The Court of Appeals rejected both arguments. It held that the trial court had jurisdiction over the defendant and could continue his bond until he began serving his sentence and that under Ohio R.C. 2937.35 and Criminal Rule 46 a bail bond can be conditioned on things other than appearance.

In State v. Bryson, 2008 WL 188118 (Ohio App. January 22, 2008) the defendant was released on an unsecured bond. When she failed to appear for a pretrial hearing, the court issued a warrant and scheduled a hearing on forfeiture of the bond. The court subsequently changed the scheduled hearing to an earlier date, but there was no evidence the defendant was informed of the change. She did not appear, and the bond was forfeited. She was arrested two weeks later and entered a guilty plea. She appealed the trial court’s forfeiture of the bond. The Court of Appeals noted the re-scheduled hearing date, the brief time before the defendant was arrested, and the lack of prejudice to the State. The Court held that justice clearly did not require forfeiture of the bond amount and vacated the trial court’s order.

In State v. Hopings, 2008 WL 303141 (Ohio App. February 1, 2008) the defendant was sentenced but his surrender postponed for a month with his bail continued. He failed to surrender to serve his sentence, and the court forfeited the bond. The surety appealed arguing that the court lost jurisdiction to forfeit the bond once it sentenced the defendant. The Court disagreed and held that Ohio Criminal Rule 46(H) vested the trial court with discretion to continue the bond after sentencing.

In State v. Miller, 2008 WL 314936 (Ohio App. February 1, 2008) the defendant failed to appear and the court granted the surety two continuances to produce him. After expiration of the second period, the court entered an order forfeiting the bond, entering judgment on the bond, and ordering execution of the judgment against the defendant and the sureties. The sureties appealed on the ground that they were entitled by statute to a notice and opportunity to show cause why judgment should not be entered against them. The three judges of the Court of Appeals panel each had a different evaluation of the issue. One judge agreed with State v. Martin, 2007 WL 2164151 (Ohio App. July 27, 2007) which addressed the same legal issue and applied a no harm no foul analysis to uphold the judgment (by a 2 to 1 vote). Another judge disagreed with the result in State v. Martin but thought that since the State v. Martin decided the issue that decision was binding. Those two judges, therefore, affirmed the trial court. The third judge disagreed and dissented for the same reasons stated by the dissenting judge in the State v. Martin case.

State v. Yount, 2008 WL 697704 (Ohio App. March 14, 2008) held that the trial court abused its discretion in denying the surety’s motion for relief from a judgment forfeiting the bond. The defendant failed to appear, and the court issued a warrant and a rule to show cause requiring the defendant and surety to appear and show why judgment should not be entered on the bond. Neither the defendant nor the surety appeared, and judgment was entered against them. The surety moved for relief from the judgment on the ground that the defendant had been incarcerated in another county on the date he failed to appear. The trial court denied relief because the surety presented only hearsay evidence that the defendant was in jail and the surety failed to establish excusable neglect in not appearing at the show cause hearing. The surety appealed. The Court of Appeals held that the surety needed only to allege a meritorious defense to obtain relief from the judgment not prove the validity of that defense and that the surety’s failure to appear at the show cause hearing did not exhibit a complete disregard for the judicial system or the State and so was excusable. The hearsay evidence was sufficient support for the alleged defense, and the surety’s actions to advise the authorities of the defendant’s location justified not appearing at the hearing.

State v. Ramey, 2008 WL 2586753 (Ohio App. June 30, 2008) reversed the trial court’s judgment forfeiting the bond. The defendant failed to appear and the court forfeited the bond and scheduled a show cause hearing for a date that was between 20 and 30 days from the date the notice was mailed. Without notice, the court changed the hearing date to a date less than 20 days from the mailing of the notice and at the hearing ordered full payment of the bond. The defendant was arrested by law enforcement authorities, and the surety moved for remission of the forfeiture, but the court denied the motion because of the court’s “normal policy.” The surety appealed and the Court of Appeals held that the trial court’s refusal to set aside the judgment was an abuse of discretion for three reasons: (1) the record did not show the surety was advised of the re-scheduled hearing date, (2) the re-scheduled date did not give the surety the statutory minimum of 20 days notice, and (3) denial of the motion based on the court’s “normal policy” rather than after consideration of the factors required by the law.

In State v. Tucker, 2008 WL 2635518 (Ohio App. July 7, 2008) the defendant failed to appear and the court scheduled a forfeiture hearing. At the surety’s request the hearing was continued, and the surety recovered the defendant prior to the continued hearing. The court nevertheless forfeited the bond and ordered remission of 50%. The Court of Appeals held that when the surety returned the defendant to custody prior to the continued hearing, the trial court lost the ability to forfeit the bond. In State v. Gaskins, 2009 WL 50128 (Ohio App. January 9, 2009) the defendant failed to appear and the bonds were forfeited. After several extensions of time to pay the forfeiture, the surety moved to vacate the forfeiture because its agents had located the defendant in another state and turned her over to law enforcement authorities to hold pending extradition. The trial court denied the notion, and the surety appealed. The Court of Appeals treated the motion as one for remission of penalty pursuant to R.C. 2937.39. The Court held that the trial court did not abuse its discretion. The defendant was not, in fact, returned to custody, and the State was going to incur costs to extradite her and transport her back to Ohio. The trial court recited the correct legal standard and the factors to be considered, and although it did not explain its decision applying the factors, the record was sufficient to hold that there was no abuse of discretion. In State v. Jackson, 2009 WL 282612 (Ohio App. February 6, 2009) the defendant was arrested on other charges two days after he failed to appear and before the surety received notice of the forfeiture. He pled guilty to the charge in the case on which he had been released on bond. The surety filed a motion for release of the bond. The court denied the motion without any explanation and ordered the bond forfeited. The Court of Appeals reviewed the factors a trial court is supposed to consider in determining whether to remit some or all of a bond forfeiture. Since in this case the trial court gave no indication it considered any of the factors, its decision was arbitrary and an abuse of discretion. The Court reversed the judgment of forfeiture and remanded the case for further consideration. The Court also rejected the surety’s argument that once the defendant pled guilty the court lost authority to declare a forfeiture for the pre-existing failure to appear. In each of State v. Holmes, 2009 WL 582578 (Ohio App. March 4, 2009), State v. Scott, 2009 WL 582582 (Ohio App. March 4, 2009) and State v. Thomas, 2009 WL 582584 (Ohio App. March 4, 2009) the defendant failed to appear in 2001 and the bonds were forfeited. In each case the defendant was re-arrested in fairly short order, but the surety waited six years to move for remission of the forfeiture. The trial court denied the motions and the Court of Appeals affirmed. The Court held that the burden was on the surety to prove that it was entitled to remission, the surety’s evidence was vague and showed little monitoring or recovery efforts, and the court could consider the long delay in seeking remission. In each case the Court held that the trial court did not abuse its discretion and affirmed denial of the surety’s motion.

In State v. Sinkfield, 2009 WL 582760 (Ohio App. March 4, 2009) the defendant was only charged with traffic offenses but completely disregarded his obligations to appear in court. From the record, it seemed he never appeared voluntarily and repeatedly had to be re-arrested. The Court held that the trial court could consider the “cavalier attitude” of the surety’s agent toward the likelihood that the defendant would fail to appear. The agent admitted that he know the defendant had a history of not appearing, but he was in the area and could easily be recovered. The trial court denied remission to discourage bail bond companies from posting bonds without adequately investigating the principals, and the Court of Appeals affirmed.

In State v. Williams, 2009 WL 641339 (Ohio App. March 13, 2009) the defendant failed to appear and a show cause hearing was set. The defendant was arrested the day before the show cause hearing and was present in court for the hearing. The court nevertheless forfeited the bond. The surety appealed, and the Court of Appeals held that the bond can not be forfeited if the defendant appears at the show cause hearing. The Court reversed the trial court and directed remission of the bond amount to the surety.

In State v. Call, 2009 WL 806583 (Ohio App. March 20, 2009) the defendant failed to appear for trial. The court held a show cause hearing and ordered forfeiture of the bond. After the hearing the surety located the defendant in another state and apprehended him. The surety was ready to transport him back to Ohio, but the law enforcement authorities of the other state kept him for formal extradition. The surety moved for relief from the forfeiture. The trial court denied the surety’s motion without holding a hearing or explaining its decision and the surety appealed. The Court of Appeals held that the surety did not have a statutory right to exoneration because it did not return the defendant prior to the show cause hearing but that it did have a right to a reasoned decision on its request for remission. The Court vacated the judgment and remanded the case for the trial court to consider a number of factors in exercising its discretion whether to grant remission.

State of Oklahoma v. Torres, 2004 WL 334978 (Okl. February 24, 2004) held that the appellate courts could not consider events happening during the appeal, in this case the apprehension and return of the defendant, in deciding whether the bond forfeiture should be set aside. The majority also held that on the record presented the trial court did not abuse its discretion in refusing to vacate the forfeiture on a showing that the bail agent located the defendant in Mexico and requested the Oklahoma district attorney's office to request a federal fugitive warrant from the U.S. Attorney's office but that the district attorney unreasonably delayed making the request. In a dissenting opinion reported separately at 2004 WL 334981 (Okl. February 24, 2004), two judges agreed that the court could not consider the mid-appeal return of the defendant but argued that the trial court abused its discretion by denying the motion for relief from forfeiture. Both the majority and the dissent were critical of the quality of the record made in the trial court, but the determining factor for the dissent seemed to be the trial judge's comment that the bail agent could have expedited the defendant's return by bribing the Mexican authorities. The dissenting judges argued that if the bail agent took every legal step available, he established good cause to vacate the forfeiture, and that if the trial court required illegal steps he abused his discretion.

In State v. Salcedo-Rubio, 195 P.3d 1286 (Ok.Civ.App. 2008) the defendant was a citizen of Mexico in the U.S. legally. After release on bond he fled to Mexico. The surety’s agents verified he had fled and attempted to locate him in Mexico. Shortly before the 90 day period to return him expired, the surety asked the district attorney’s office to initiate extradition proceedings. The district attorney’s office replied that extradition from Mexico was very time consuming and required voluminous paperwork. The surety sought to set aside forfeiture of the bond. The court held that under the circumstances the surety had not shown “good cause” for its failure to return the defendant. The surety knew he was a Mexican citizen, and the difficulty in persuading Mexico to extradite its citizens is well established. The court also recognized that the bond could be exonerated if the government increased the surety’s risk, but here the surety took the risk that the defendant would go to Mexico and be difficult or impossible to extradite, and the government’s failure or refusal to seek extradition did not increase that risk. The Court affirmed the trial court’s judgment on the bond.

In Commonwealth of Pennsylvania v. Mayfield, 2003 WL 21246377 (Pa. Super. May 30, 2003) the defendant violated a condition of his bail by committing an assault shortly after release. The trial court forfeited the bond. The appellate court reversed. The court held that in considering remission of forfeiture, a court must consider the willfulness of the defendant’s breach, the cost, inconvenience and prejudice to the government and any explanation or mitigating circumstances. The Court of Appeals did not think the facts supported forfeiture, but at least the willfulness test should have been met since upon his release the defendant went to his girlfriend’s house and broke her nose. Because there were no apparent mitigating circumstances, in effect the court held that a bail bond cannot be forfeited unless the government can show prejudice from the defendant’s breach. There was a dissenting opinion.

In Commonwealth v. Hernandez, 2005 WL 2403814 (Pa. Super. September 30, 2005) the trial court refused to consider the equitable factors relevant to remission of forfeiture because the surety’s efforts did not have a substantial impact on the defendant’s recovery. The Court of Appeals held that the three equitable factors should be considered, along with the bondsmen’s role in recovering the defendant. Upon consideration of the factors, however, the Court of Appeals held that no remission was justified and affirmed the trial court’s result. The factors were: (1) willfulness of the defendant’s breach, (2) cost, delay and inconvenience to the government and the court, and (3) any explanation or mitigating factors. In this case, the defendant acted willfully and there was prejudice to the government and the court. There were no mitigating factors and thus no basis for relief from the forfeiture.

In Surety Administrators, Inc. v. Samara, 2006 WL 891430 (E.D.Pa. April 6, 2006) an assignee of Capital Bonding's claims sued a subagent for allegedly unpaid bond premiums and fees based on unaccounted for powers of attorney. The subagent moved for summary judgment. The court examined the various claims and counterclaims between Capital Bonding and the subagent, and held that there were disputed issues of fact that precluded summary judgment.

Aegis Security Insurance Co. v. Harco National Insurance Co., 2006 WL 1722395 (M.D.Pa. June 22, 2006) granted Harco’s motion to compel arbitration of a dispute arising out of several reinsurance agreements related to bonds written through Capitol Bonding. The dispute involved the right of setoff against money Harco owed under a 2002 reinsurance treaty for immigration bond losses incurred in a settlement Aegis negotiated with the Department of Homeland Security. The 2002 reinsurance treaty provided for setoff and contained an arbitration clause. The court held that disputes about the scope of the setoff provision would be resolved in the arbitration. In Surety Administrators, Inc. v. Samara, 2006 WL 1737390 (E.D.Pa. June 20, 2006) the court denied Highlands Insurance Company’s motion to intervene in a suit to compel a subagent to remit premiums and other money allegedly owed under agreements with Capitol Bonding. Highlands alleged that Surety Administrators, Inc, on behalf of Harco, Aegis and Sirius, was trying to collect funds, or had collected funds, that should have gone to Highlands. The court thought that in this suit Surety Administrators and the other plaintiffs were not claiming anything owed to Highlands, and Highlands could file its own suit to recover anything it was owed.

In Surety Administrators, Inc. v. Pacho’s Bail Bonds, 2007 WL 1002136 (E.D.Pa. March 30, 2007) the successor of Capitol Bonding sued two bail agencies and several individuals alleging that bond premiums and service charges were owed under subagency agreements. One of the individual defendants, Montgomery R. Carlin, filed motions to dismiss for lack of personal jurisdiction and failure to state claims. The court found that the defendant’s contacts with Pennsylvania were sufficient to subject him to suit there, and denied his motions to dismiss the breach of contract, conversion and unjust enrichment claims. The court granted his motion to dismiss the breach of fiduciary duty claim because the plaintiff had not alleged facts that would establish a fiduciary duty. In Commonwealth v. Riley, 946 A.2d 696 (Pa. Super. 2008) the defendant appeared for jury selection but not for the rest of the trial. He was convicted in absentia, and the surety recovered him within a few days of receiving notice. The trial court forfeited onethird of the bond amount, and the surety appealed. The defendant committed additional crimes while released on the bond, and the Commonwealth argued that the costs of investigation, arrest and trial of the additional crimes justified the forfeiture. The additional crimes, however, were drug sales to undercover policemen, and the authorities were aware of the defendant’s bail status and could have incarcerated him at any point. They delayed for their own law enforcement purposes related to the drug infractions. The Court found that the failure to appear was willful, but that there were no costs to the Commonwealth from the failure to appear and the surety’s quick action to recover the defendant constituted mitigating circumstances. The Court remanded the case with directions to remit the entire amount of the bond.

In International Fidelity Insurance Co. v. Sanchez-Ramos, 2005 WL 2837459 (D.P.R. October 26, 2005) the surety challenged orders of the Commonwealth authorities that it pay some 176 forfeiture judgments for which it was never given proper notice. The surety asserted causes of action under the U.S. Constitution and federal laws as well as under Puerto Rican law. The court held that it would abstain from hearing the case because pre-existing, ongoing administrative proceedings before the Commissioner of Insurance, and review of those proceedings in the Puerto Rican courts, would give the surety an adequate opportunity to raise its federal claims.

In State v. Cochran, 594 S.E.2d 844 (S.C. 2004) the bail agent signed the bonds as surety and attached a power of attorney from Frontier Insurance Company. The state sued for the amount owed on the forfeited (in South Carolina, "estreated") bonds. The bail agent argued that Frontier was in rehabilitation and the Order of Rehabilitation prevented the suit. He claimed that he was just the agent for a known principal and so had no personal liability. The Court rejected the argument and pointed out that the bond on its face showed the bail agent as the surety not as agent for someone else.

In Ex parte Gene Frye Bail Bonds, 2004 WL 943531 (S.C. App. May 3, 2004) the defendant was arrested on additional charges and failed to make a court appearance. The surety sought relief from its obligations on the bond. The statute allowing such relief, S.C. Code §38-53-50, prior to its amendment in 1998, stated that the court could order a partial refund of the fee. That provision was eliminated in the 1998 amendments, and the Court of Appeals concluded "the governing statute does not authorize the circuit court to require a bonding company to pay any portion of the fee back to the defendant or his guarantor in order to be released from a bond."

State v. McClinton, 631 S.E.2d 895 (S.C. 2006) held that the three year limitation period of S.C. Code §15-3-530(1) for an action on a contract applied to bar the State’s claim on a bail bond. There was no statutory limitation period specifically for bail bonds, but the State’s right to forfeiture of the bail bond arose from contract. As a matter of first impression, the Court held that the three year period applied and that it started to run 30 days after issuance of a bench warrant for the defendant’s failure to appear. Therefore, the State’s claim was time barred.

In Jones v. Robbin, 2009 WL 437337 (D.S.C. January 21, 2009) the bail agent seized the defendant and surrendered him to the county jail where he remained at the time the suit was filed. The prisoner sued the jail warden and the bail agent alleging that a South Carolina statute on surrender of defendants by bail sureties had not been followed to the deprivation of the prisoner’s civil rights. The court reviewed and dismissed the pro se complaint for failure to state a claim for relief. The court held that the bail bondsman was not a state actor for purposes of the federal civil rights statute, 42 U.S.C. §1983.

In State v. Davis, 2004 WL 892530 (Tenn. Crim. App. April 26, 2004) the defendant was arrested for DUI and posted a $1,750 bond. He appeared as required, pled guilty and was sentenced to 48 hours in jail, the balance of a year on probation and a $350 fine. He was also ordered not to drive for a year and to appear before the court in three months for a "probation hearing." He served the 48 hours but did not pay the fine or appear for the probation hearing. The court forfeited the bond and ordered the bondsman to pay the fine plus costs. On appeal the State and the bondsman agreed that the bond was discharged when the defendant pled guilty and was sentenced, but the court of appeals disagreed. It held that the statute relied on by the bondsman had been partially repealed by implication because in another statute enacted later the legislature allowed the court to continue the bond if a defendant is granted probation. Since the entire bond of $1,750 could be forfeit, the court had discretion to reduce the forfeiture to the amount of the fine and costs and then to apply the forfeited sum to their payment. The Court of Appeals issued a superceding opinion, State v. Davis, 2004 WL 1056474 (Tenn. Crim. App. May11, 2004), and the Supreme Court reversed the case, State v. Davis, 2005 WL 2396274 (Tenn. September 29, 2005).

In re Guy James Bonding, 2004 WL 1402562 (Tenn. Crim. App. June 23, 2004) reviewed the statutory basis for relief from forfeiture under Tennessee law. The defendant failed to appear and a conditional forfeiture was entered. The surety paid the forfeiture but subsequently recovered and surrendered the defendant. The trial court denied relief from the forfeiture on the ground that the request came too late. The Court of Appeals reversed and held that once the bail amount was paid, whether there was a final forfeiture order or not, relief could be granted under only Tenn. Code §40-11-204 and that there was no time limit for relief under that statute. The relief is equitable, however, and the party seeking it must establish a basis on which it should be granted. The case, therefore, was remanded to the trial court to hold a hearing to determine the relief, if any, to which the surety is entitled.

In Graham v. General Sessions Court of Franklin County, 2004 WL 2246195 (Tenn. Ct. App. October 5, 2004) two professional bondsmen challenged an order that bail of less than $4,400 could be made by any two owners of real property in Franklin County. The Court of Appeals held that aspect of the order violated the controlling Tennessee statute, which requires that persons guarantying bail have a net worth in excess of the bail amount, and designating the sheriff or judicial commissioner as the officials to decide whether the statutory requirements have been met.

In re AB Bonding Company, Inc., 2004 WL 2853540 (Tenn. Crim. App. December 10, 2004) dismissed the surety's appeal of the trial court's denial of the surety's motion to remit forfeitures of a series of bonds for the same defendant. After the defendant failed to appear, the surety paid the full amount of the bonds and hired a bounty hunter who eventually recovered the defendant. The trial court remitted the amount of the surety's expenses in the successful recovery effort but denied relief as to the rest of the forfeitures. The surety appealed. The Court held that the record did not include final judgments entered by the trial court against the surety, that final judgments are a necessary prerequisite to jurisdiction in the court of appeals, and that the appeal accordingly must be dismissed.

In State v. Bradley, 2005 WL 1105182 (Tenn. Crim. App. May 5, 2005) the defendant was charged in General Sessions court with several traffic offenses and released on $10,000 bond. He failed to appear and a conditional judgment was entered to forfeit the bond. He was later indicted by a grand jury for the same offenses and the Circuit Court forfeited the bond. The surety paid the forfeiture, but eventually located the defendant in jail in another state. He was returned to Tennessee and pled guilty. The Court of Appeals held that the surety was entitled to return of the forfeited amount because the bond was posted in the General Sessions court and the Circuit Court proceeding was a new action not a transfer of the General Sessions case. The Circuit Court was without jurisdiction to forfeit the bond, and its judgment of forfeiture was void. Only the General Sessions court could forfeit the bond, and it had not done so when the defendant appeared and pled guilty. This disposition of the charges against him operated to discharge his surety. Therefore, the surety was entitled to return of its $10,000.

In City Bonding Company, Inc. v. Hauther, 2005 WL 1159431 (E.D. Tenn. May 17, 2005) an established professional bail bond firm, City Bonding Company, Inc., sued a start-up firm, City & County Bail Bonding Company, Inc., for trademark infringement and unfair competition. The Court granted a preliminary injunction against the defendant's use of a name confusingly similar to City Bonding Company. In State v. Cabellero-Grajeda, 2005 WL 1931402 (Tenn. Crim. App. August 11, 2005) the defendant's girlfriend pledged property in El Paso, Texas as security for the bond. The defendant was turned over to INS, which subsequently released him on another bond. After he failed to appear for trial and his bond was conditionally forfeited, the bondsman discovered that the girlfriend did not own the property in El Paso. The bondsman sought relief because the state had indicted the defendant on another, more serious charge after his release, because the girlfriend did not own the property, and because the defendant was turned over to INS. The Court affirmed the trial court's denial of the requested relief and also held that the criminal court did not have jurisdiction over the bondsman's claim against the girlfriend.

State v. Davis, 2005 WL 2396274 (Tenn. September 29, 2005) reversed the Court of Criminal Appeals decision reported at 2004 WL 1056474 (Tenn. Crim. App. May 11, 2004) and held the bond was discharged and the surety released from liability once the defendant was convicted and sentenced. Therefore, the surety could have no responsibility for the fees and costs owed by the defendant who did not appear at a postsentence probation hearing.

State v. Caruthers, 2006 WL 1735125 (Tenn.Crim.App. June 26, 2006) reversed on order that the bail bondsman to pay a portion of the premium to the court clerk to satisfy the defendant’s restitution obligation. The defendant had not been surrendered, a predicate to a pro rata premium refund under Tenn. Code §40-11-301. The Court of Appeals held that there was no basis to order a refund of the premium.

State v. Truitt, 2006 WL 2738876 (Tenn.Crim.App. September 21, 2006) is the second appeal seeking full or partial remittiturs of forfeitures on five bonds for a single defendant. In re AB Bonding Company, Inc., 2004 WL 2853540 (Tenn. Crim. App. December 10, 2004) refused to consider the appeal because there were no final judgments. After remand and entry of judgments, the bail bondsman appealed again. The court held that the trial court was within its discretion in denying relief from forfeiture. Although the bail bondsman’s bounty hunter eventually located the defendant, he was returned to custody almost four years after he first failed to appear and a year and a half after conditional forfeiture. Under Tenn. Code §40-11-204(a) any relief after final judgment is a matter of discretion, and here the trial court did not abuse its discretion in denying the bail bondsman’s motion.

In Evans v. City of Etowah, 2007 WL 1143948 (E.D.Tenn. April 17, 2007) the mother of the absconding defendant was at home when the employees of the bail agent, assisted by the City police, arrived to recover her son. She ended up under arrest herself, and sued everyone involved for a wide range of alleged causes including violation of federal statutes, constitutional rights and state law tort claims. The bail agent and its employees moved to dismiss the suit. The court granted the motion in part but denied it in part. The court held that the involvement of the police meant the bail agents were acting under color of state law and refused to dismiss the §1983 claim but did dismiss several other federal law claims and ordered the plaintiff to amend her complaint to clarify which of her state law tort claims were asserted against the bail agent defendants.

In State v. Henry, 2007 WL 1364543 (Tenn.Crim.App. May 9, 2007) the Court agreed that T.C.A. §40-11-204(a) gave the trial court broad discretion to remit forfeitures. In this case, however, the trial court denied the surety’s motion, and the record on appeal did not include a basis to find that the trial court abused its discretion. In its brief, the surety argued that it had recovered the defendant and returned him to the sheriff, who inexplicably released him. The problem was that no such facts appeared in the record of the case. The surety included no transcripts or exhibits that would support its argument, therefore the decision of the trial court was affirmed.

In State v. Hix, 2009 WL 856852 (Tenn.Crim.App. March 31, 2009) the defendant failed to appear and a conditional forfeiture of the bond entered. The court set a show cause hearing, but neither the defendant nor the surety appeared. The surety did not request an extension of time, and the court entered a final forfeiture. Nevertheless, the surety recovered the defendant shortly afterwards and petitioned for relief from the final forfeiture. The trial court thought that the surety acted promptly after the final forfeiture but that it did not do much beforehand and that it could have requested an extension of time. The court noted that the premium for the $20,000 bond would have been $2,000, mentioned treble damages, and remitted all but $6,000 of the forfeiture. The surety appealed. The Court of Appeals reviewed the facts and held that the trial court had discretion in determining the extent of any relief granted to the surety and that it had not abused its discretion in this case. The Court affirmed the judgment remitting only $14,000 of the $20,000 bond.

McDonald v. State, 105 S.W.3d 749 (Tex. App. 2003) held that a bond forfeiture is a criminal proceeding and the state cannot ask for a new trial or file an appeal. Quintero v. State of Texas, 2003 WL 21101395 (Tex. App. May 15, 2003) rejected arguments that there was insufficient evidence the principal signed the bond, that incorrect admonishment on appointment of counsel voids the bond, and that thecourt should have let one year elapse after failure to appear before forfeiting bond. Olivarez v. State, 2003 WL 21476320 (Tex. App. June 26, 2003) is unusual because the bondswoman appeared pro se and won. She was helped by the fact that the state did not file a brief in the appeal and, in fact, neglected to place the bond in evidence in the trial court.

David's Bail Bond v. State, 2003 WL 21509112 (Tex. App. June 30, 2003) affirmed the trial court's denial of a bill to review forfeiture of the bond because the appellant did not provide a court reporter's transcript of the hearing in the trial court. The decision to grant or deny relief was within the discretion of the trial court, and without a transcript the Court of Appeals could not find an abuse of discretion.

In Castaneda v. State, 2003 WL 21509098 (Tex. Crim. App. July 2, 2003) the bail bondsman knew that each of the five commercial drug dealer defendants was an illegal alien and would be turned over to INS when released on bail. None of the five appeared for trial, and they had apparently been deported. In the trial court and first level court of appeals, the bondsman unsuccessfully argued that the fact of deportation was an "uncontrollable circumstance" justifying exoneration of the bonds under Tex. Code of Crim. Procedure Art. 22.13(3). The lower courts rejected the argument and affirmed judgment of forfeiture. The Court of Criminal Appeals, in a 6 to 3 decision, considered an argument no one had made in the lower courts and held that under Tex. Code of Crim. Procedure Art. 17.16 the surety was automatically discharged if it delivered an affidavit that the defendant was in custody elsewhere and the sheriff verified that fact. This seems to be a great deal for the bondsman of an illegal alien subject to detention and deportation by INS. The bondsman can collect the premium, the defendant is "released" to INS, the bondsman immediately submits the affidavit, the sheriff verifies that the defendant is held by INS, and the bond is automatically discharged. As the three dissenting judges point out, it is possibly an even greater deal for the drug dealers (in these cases transporters of hundreds of pounds of marijuana) who have no trouble getting a risk-free bail bond, are sent back to Mexico and never face prosecution. Indeed, they presumable go back to work smuggling drugs into the U.S. secure in the knowledge that if they are caught they will be able to post bail and be sent home never to face trial. One of the few things one can definitely count on is that neither the courts nor the legislature are interested in helping drug dealers. The Texas Supreme Court or the Legislature may look for a way to change this result.

Webb v. State of Texas, 2003 WL 21666630 (Tex. App. July 17, 2003) is not strictly speaking a bail bond case, but it is nevertheless interesting because it holds that the crime of soliciting bonding business in a jail, police station or other place of detainment can be committed over the telephone. That is, the bail agent or bail surety need not physically be present in the detention facility when the solicitation occurs or at any other time. Texas law requires that the defendant on a bail bond (as well as the surety) be given notice that the state is seeking a judgment of forfeiture and that the judgment be against both the defendant and the surety. In Guy Williams, d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21961517 (Tex. App. August 19, 2003) the trial court entered judgment against both, but the state did not establish in the record that it had sent notice to the defendant. Given how simple it would be to show mailing of notice, there may be some implication from the state's silence that it did not give the notice. On the other hand, Mr. Williams just submitted an affidavit that to the best of his information and belief no notice was given to the defendant. On this ambiguous record the court of appeals held that summary judgment should not have been granted, vacated the judgment and remanded the case to the trial court. Ironically, entry of judgment against the surety, who admittedly received notice, is at least postponed because the state did not establish it gave someone else notice.

Guy Williams d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21998531 (Tex. App. August 25, 2003) and Guy Williams d/b/a Freedom Bail Bonds v. State of Texas, 2003 WL 21998567 (Tex. App. August 25, 2003) are virtually identical to the August 19 opinion as are six more cases with the same title dated August 27, 2003: 2003 WL 22017272, 2003 WL 22017294, 2003 WL 22017309, 2003 WL 22017331, 2003 WL 22017491, and 2003 WL 22017497.

Villanueva v. Gonzalez, 2003 WL 22238913 (Tex. App. October 1, 2003) does not involve a bail bond forfeiture but is nevertheless interesting. Mr. Villanueva deeded property to Mr. Gonzalez which Mr. Gonzalez used as security for bail bonds he wrote. Mr Gonzalez was supposed to pay Mr. Villanueva half the profits but failed to pay. The court held that the agreement was a violation of section 1704.252(9) of the Texas Occupations Code which authorizes a county bail bond board to revoke the license of anyone who pays a commission or fee to, or divides commissions or fees with, a person or business entity not licensed under Chapter 1704 (which regulates bail bond sureties). Since the agreement was illegal, the court refused to enforce it and left the parties where they stood. Mr. Gonzalez apparently gets to keep the property and not pay Mr. Villanueva the promised half of the profits.

International Fidelity Ins. Co. v. State of Texas, 2003 WL 22976423 (Tex. App. December 17, 2003) considered whether appeal of a bail bond forfeiture is a civil or criminal matter and which procedural rules apply. The court held that the appeal was a criminal matter but that pursuant to Tex. Code Crim. Proc. Art. 44.44 the civil rules governed. The court then granted the surety's motion to dismiss its appeal. In Maya v. State, 2004 WL 57405 (Tex. App. January 14, 2004) the surety filed an “affidavit to go off bond” pursuant to Texas Code of Criminal Procedure Art. 17.19 but did not bring it to the magistrate’s attention. Before it was acted upon, the defendant failed to appear and the bond was forfeited. The court held that the mere filing of the affidavit did not give the surety an affirmative defense to the bond forfeiture. Under the statute, the surety has a defense if the magistrate or court refuses to issue a warrant as requested by the surety. The failure to act on the surety’s filing of the affidavit was not such a refusal.

In Soileau v. State of Texas, 2004 WL 78176 (Tex. App. January 20, 2004) the court rejected a number of technical objections to the state's summary judgment. The surety argued that the exhibits to the summary judgment motion were not properly authenticated, but the court pointed out that the originals were part of the record on appeal. The surety argued that the record did not establish that the principal was served, but the court had ordered the citation of the judgment nisi to be served, and there was no evidence offered to overcome the presumption the court's order was carried out. The surety argued that the principal was not properly served with the summary judgment motion, therefore the judgment against the principal was void, and there could be no judgment against the surety without a judgment against the principal. The court held that bail forfeiture is a criminal law matter, the civil law of guarantees is inapplicable, and there could be a judgment against the surety even if the principal had been dismissed. In re Ernesto C. Casteneda, 2004 WL 572355 (Tex. App. March 24, 2004) denied a petition to review the trial court's refusal to accept Mr. Casteneda as a surety because he had not paid forfeiture judgments in other cases. Tex. Code of Crim. Proc. Art. 17.11, §2 disqualifies a surety in default on a bail bond.

Baeza v. State of Texas, 2004 WL 803895 (Tex. App. April 15, 2004) affirmed judgment on a bond. One element of a bond forfeiture in Texas is that the name of the defendant was called distinctly at the courthouse door. The trial court took judicial notice that this was done, and on appeal the surety objected to such judicial notice. The objection was not made in the trial court, however, and thus not preserved for review on appeal. Burns v. State of Texas, 2004 WL 1007621 (Tex. App. May 5, 2004) and three companion cases (2004 WL 1007697, 1007772, and 1007827) all upheld the application of a formula to determine the amount of a forfeited bond to be remitted if the defendant is surrendered. The Court also held that Lyles v. State, 850 S.W.2d 497 (Tex. Crim. App. 1993) definitely decided that subsection (a) of a former statute directing remission of the entire bond amount less certain costs was unconstitutional, and refused to reconsider that holding.

Taylor v. State of Texas, 2004 WL 1171731 (Tex. App. May 27, 2004) reversed a judgment against a bail agent who had signed the bond only on behalf of the surety. The state conceded that the agent should not have been personally liable.

Ex parte Durst, 2004 WL 1193225 (Tex. App. June 1, 2004) held that bail of $1 billion on each of three charges was unconstitutionally excessive. The defendant was a proven flight risk and wealthy, but the trial judge had imposed conditions to address the flight risk including that the defendant pay the cost of 24 hour surveillance by a licensed peace officer selected by the court. The three charges were third degree felonies: bail jumping, failure to appear and destruction of evidence. The majority opinion did not say what amount of bail it considered to be constitutionally permitted under the facts of the case, but a concurring opinion argued the court should save time by specifying between $150,000 and $200,000.

In Cardona v. State, 2004 WL 1347275 (Tex. App. June 16, 2004) the defendant was convicted and sentenced by the trial court, but his conviction was overturned by the Court of Appeals. The State intends to seek discretionary review of the Court of Appeals decision in the Court of Criminal Appeals. The defendant requested bail pending the State's appeal, and the Court reviewed the criteria to be applied in determining the amount of bail. [Not published.]

Castenada v. State 138 S.W.3d 304 (Tex. Crim. App. June 30, 2004) grants reconsideration of Castaneda v. State, 2003 WL 21509098 (Tex. Crim. App. July 2, 2003) and reverses the result. In its initial decision the Court held that the surety was automatically discharged under Art. 17.16 of the Texas Code of Criminal Procedure because it delivered to the Sheriff an affidavit stating that the defendant accused drug dealers were in INS custody and the Sheriff verified that fact. On reconsideration, the Court held that it would not consider the Art. 17.16 defense because it was not raised in the trial court. The Court then went on to reject the surety's other contentions either because they also were not raised in the trial court or because they were not supported by the record.

In four State v. Williams cases, 2004 WL 1632561, 1632648, 1632650 and 1632917 (Tex. App. July 22, 2004) the court rejected the surety’s argument that a certified copy of the bail bond should not have been admitted into evidence and that the bond principal had to be served with the citation. On the latter point, the court did not address the merits of the question because the surety did not raise the issue before the trial court, and in two of the cases the principal was served anyway. [Not published].

In Cowboy Bail Bonds v. State, 2004 WL 1879643 (Tex. App. August 24, 2004) the court held that the surety had not complied with Article 17.19 of the Code of Criminal Procedure. Article 17.19 allows a surety to file an affidavit of its intention to surrender the defendant. If the court refuses to issue a bench warrant for the defendant and the defendant fails to appear for a subsequent court date, the bond is discharged. The bail agent filed an "affidavit to go off bond" but did nothing to bring the affidavit to the court's attention or secure a ruling on it. The Court never took it up, and the defendant subsequently failed to appear. The Court of Appeals held that just filing the affidavit is insufficient to cause the court's inaction to constitute a "refusal" to issue the warrant. [Not published].

In Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) the court considered challenges to two Rules promulgated by the Harris Count Bail Bond Board. Rule 24 forbids bail bondsmen or anyone working for them from soliciting bail bond business from persons with outstanding warrants (that is, from contacting the criminal before he or she is arrested). Rule 25 forbids the solicitation of bail bond business within 24 hours of arrest or during other than normal business hours. Both rules have an exception for a bail agent with an existing bond for the defendant, and Rule 25 also excepts a bail agent with a prior relationship with the defendant. The Court rejected all the challenges to both rules except a First Amendment challenge to Rule 25. The court reasoned that the purported purpose of Rule 25, to prevent harassment of citizens, was substantially undercut by the exception and the real effect of the Rule was to prevent competition by bail bondsmen who did not have a prior or current relationship with the defendant.

In Alkek v. State, 2004 WL 2472262 (Tex. App. November 4, 2004) notice of the judgment nisi was not mailed to the bond principal at the address stated on the bond, and the judgment was against only the surety. There was no dispute that this was not in accordance with statutory requirements. In a 2-1 decision, however, the Court held that the judgment appealed from was not final and, therefore, the appeal should be dismissed. The dissent argued that the judgments were final and reversible.

Gonzalez Bail Bonds v. State, 147 S.W.3d 557 (Tex. App. 2004) vacated summary judgment forfeiting the bond. The defendant was not indicted at the next term of court after he was admitted to bail. That would exonerate the bond unless he was bound over before indictment and the prosecution was continued by order of the court. The record in the case did not show that the prosecution was continued by court order. The court held that was sufficient to raise a genuine issue of fact precluding summary judgment. The dissent would have affirmed the summary judgment on the theory that there was no reason to believe that an order granting such a continuation would appear in the record of the case and, therefore, there was no inference to be drawn from its absence. The court also stated that ratification and estoppel are principles of civil substantive law not applicable in bail forfeiture proceedings.

Kubosh v. State, 2004 WL 2966391 (Tex. App. December 23, 2004) affirmed judgments forfeiting two bonds. After being released, the defendant was arrested on another charge, and while he was in custody, the bail bondsman surrendered the bonds with an affidavit to the court, and a warrant was issued for the defendant's arrest. Article 17.16 of the Texas Code of Crim. Proc. provides that the surety can secure discharge of the bonds if it delivers to the Sheriff of the county in which the prosecution is pending an affidavit that the defendant is in custody and the Sheriff verifies the incarceration. Instead of following the statutory procedure, however, the bondsman telephoned the jail, told a deputy that the arrest warrants had been issued, and asked that a "hold" be placed on the defendant. The Court held that the bondsman was not entitled to relief since he had not complied with the statute. It also rejected his argument that public policy required the sheriff to verify the defendant's incarceration upon receipt of the telephone call. The Court stated that it had to follow law and precedent not public policy.

Kubosh v. State, 177 S.W.3d 156 (Tex. App. 2005) rejected the surety's argument that the bond should have been exonerated because the defendant was in Mexico and the Mexican government did not issue a "provisional warrant" for his arrest because of inadequate policies of the Harris County District Attorneys Office. The Court held that the four grounds stated in Tex. Code of Criminal Procedure §22.13(a) were the only grounds to exonerate the bond, and the surety's argument did not fit under any of them. Harris County Bail Bond Board v. Pruett, 177 S.W.3d 260 (Tex. App. 2005) denied motions for rehearing of the Court's opinion at Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) but filed a replacement opinion reaching the same ultimate conclusion. The case involved the enforceability of Harris County Bail Bond Board Rules 24 and 25, and the Court rejected all the challenges to both rules except a First Amendment challenge to the part of Rule 25 forbidding solicitation within 24 hours of arrest by anyone who does not have a prior or existing relationship with the defendant.

Allegheny Casualty Co. v. State, 2005 WL 780302 (Tex. App. – El Paso April 7, 2005) is another case involving a defendant turned over to the Immigration and Naturalization Service (INS). He was arrested trying to enter the United States with 42 pounds of marijuana and charged in state court. Bond was set at $1,500 and the defendant was released to INS, which removed him back to Mexico. Needless to say, he did not take advantage of the fact that he could have applied to return to the U.S. for his court appearance. The bond was forfeited. The surety argued that deportation of the defendant prior to the time he was to appear is an automatic exoneration of the bond or, at least, an “uncontrollable circumstance” preventing the defendant’s appearance and discharging the surety under Texas law. The court rejected both arguments. The court noted the practically penalty-free attempt to import 42 pounds of marijuana and stated, “Now appellant would like this Court to excuse it from this minimal obligation under the bond entirely, allowing it to make a tidy profit on a scheme which is obvious to all but the most naive.” A logical question is why bond was set at only $1,500 if everyone involved knew it was in effect a fine and the only penalty the defendant was likely to face. Harrell v. Bowles, 2005 WL 975378 (N.D. Tex. April 25, 2005) rejected a constitutional challenge filed by sureties who deposited cash bonds. The sureties argued that the Sheriff's refusal to return the deposits, charging of unauthorized fees, retention of interest earned, and refusal to turn over abandoned funds were unconstitutional takings. The court held that the sureties had not availed themselves of the clear state law procedure to seek return of the deposits and other relief and, therefore, they could not assert a claim for an unconstitutional taking. The plaintiffs' claims were dismissed without prejudice. It appears from the decision that no corporate surety bail bonds were involved. Rather the sureties were individuals who acted as sureties by depositing funds with the Sheriff. In Vance v. McRae, 2005 WL 1105076 (W.D. Tex. April 29, 2005) a bail bondsman sued the Bexar County Bail Bond Board and one of its members for various civil rights violations. The defendants' motions for summary judgment were granted in part and denied in part. The Board suspended the plaintiff's license, but on appeal the state court lifted the suspension and returned the plaintiff to full licensed status. The plaintiff filed this federal suit seeking damages. The Court held that the Board was subject to suit and did not have judicial immunity but that the individual member of the Board was immune from suit on certain statutory claims. The Court rejected the Board's argument that the claims were barred by a "deliberative and decisional process privilege."

In Ranger Insurance Co. v. State, 2005 WL 1384319 (Tex. App. – Hous. June 2, 2005) the surety argued that Article 102 of the Honduran Constitution forbidding extradition of a Honduran citizen was an "uncontrollable circumstance" within the meaning of Art. 22.13(a)(3) of the Texas Penal Code because it prevented the surety from returning the defendant. The court held that the surety had not established a factual basis in the record for its argument and affirmed the judgment of forfeiture. The court did not address the substance of the surety's contention.

In re State of Texas ex rel. Jose R. Rodriguez, 166 S.W.3d 894 (Tex. App. – El Paso 2005) held that the County Attorney could represent the state in the bond forfeiture proceeding and that the surety did not have standing to complain that the County Attorney’s simultaneous service on the County Bail Bond Board and representation of the state in bond forfeiture proceedings was a conflict of interest. The appeal was by a request for a writ of mandamus to the trial court, which had disqualified the County Attorney, and the Court of Appeals directed the trial court to vacate its opinion with the writ of mandamus to issue if it failed to do so.

Trevino v. State, 2005 WL 1643184 (Tex. App. – Corpus Christi July 14, 2005) affirmed judgments forfeiting two bonds in spite of the fact that the bonds described the charge against the defendant as "Theft by Possession" and the judgment nisi stated that the indictment charged the defendant with engaging in organized criminal activity. The trial court took judicial notice of the criminal case files and found that the acts of theft by possession were the basis for the criminal conspiracy and that all the charges were from the same criminal episode. The Court held that the variance was reconciled and not fatal to forfeiture of the bonds.

Alkek v. State of Texas, 2005 WL 1907778 (Tex. App. – Corpus Christi August 11, 2005) denied the surety's appeal for lack of jurisdiction. After the judgment of forfeiture was entered, the surety filed a timely petition for a Special Bill of Review that was denied. The surety did not appeal, but after 30 days had run filed another petition for a Special Bill of Review. Eventually, the surety appealed from denial of the second petition. The Court held that when the appeal period ran after denial of the first, timely petition, the trial court did not have jurisdiction to reconsider the judgment and therefore the Court of Appeals did not have jurisdiction over the appeal.

Williams v. State of Texas, 2005 WL 1907685 (Tex. App. – Corpus Christi August 11, 2005) and Williams v. State of Texas, 2005 WL 1907686 (Tex. App. – Corpus Christi August 11, 2005) both rejected three arguments made by the surety and affirmed judgments forfeiting the bonds. In both cases, the Court held that the bond principal was properly noticed by mailing to the address on the bond and that a certified copy of the bail bond was properly admitted into evidence under the public records exception to the hearsay rule. The Court also held that the post-forfeiture appearance and guilty plea of the defendant (Westlaw No. 1907686) and post-forfeiture dismissal of the criminal case (Westlaw No. 1907685) were not grounds to discharge the surety under Tex. Code of Crim. Proc. Art. 22.13.

Pruett v. The Harris County Bail Bond Board, 400 F.Supp.2d 967 (S.D.Tex. 2005) held that Tex. Occupations Code §1704.109 was unconstitutional and enjoined its enforcement. The Code section forbad “a bail bond surety, an agent of a corporate surety, or an employee of the surety or agent” from taking certain acts to solicit bail bond business. The prohibited acts were soliciting business from an individual for whom a warrant had been issued but not served unless the surety or agent had a prior bail bond on the individual and soliciting business in person or by telephone between 9:00 p.m. and 9:00 a.m. or within 24 hours following the individual’s arrest. The Court held that the statute violated the First Amendment of the Constitution. It agreed that the prohibited acts were commercial speech but was not convinced that the restrictions directly and materially advanced the state’s interest in preventing harassment and protecting law enforcement officers or that the restrictions were narrowly drawn. In Harris County Bail Bond Board v. Pruett, 2004 WL 2307362 (Tex. App. October 14, 2004) the Texas Court of Appeals considered a Bail Bond Board Rule very similar to §1704.109 and held that it also violated the First Amendment.

Smith v. Johnson County Bail Bond Board, 2005 WL 3436798 (Tex. App. December 14, 2005) affirmed denial of an application for a license to act as the agent of a licensed bail bondsperson. The Board's Local Rule 10.1 required such an applicant to meet all the requirements of the Texas Bail Bond Act, and one of those requirements was that the applicant not be a convicted felon. The applicant had a felony conviction, and so was properly rejected. The Court upheld Local Rule 10.1 as within the Board's authority and not a violation of the equal protection clause of the U.S. Constitution. Olivarez v. State, 183 S.W.3d 59 (Tex. App. – Waco 2005) dismissed the bondsman’s appeal because she failed to file a docketing statement. Much of the opinion, however, discusses the payment of fees applicable to civil appeals in bond forfeiture cases. The Court stated that such fees are owed but, since they were not customarily collected, they would be waived in this and all other pending appeals. A dissent agrees that the fees are owed, but would not waive them. The dissent would have given the appellant notice that the appeal would be dismissed if she did not pay the fees and file the docketing statement.

In Ex parte Speicher, 2006 WL 302325 (Tex.App.– Fort Worth February 9, 2006) the defendant violated several conditions of his release and was rearrested. The trial court refused to set bail. The Court of Appeals held that there was a constitutional right to bail and that the trial court could set a higher amount in light of the defendant's violations but could not deny bail entirely. [Not published].

Gilmore v. State, 2006 WL 302334 (Tex.App.—Fort Worth February 9, 2006) held that an Affidavit for Release of Surety pursuant to Tex. Code of Criminal Procedure Art. 17.19 must strictly comply with the statute and contain each required element. The Affidavit submitted by the surety did not state the offense with which the defendant was charged, and so the surety could not use the court's refusal to issue a warrant for the defendant as a defense to the State's forfeiture action after the defendant failed to appear at a subsequent hearing. The Court held that substantial compliance with Art. 17.19 was insufficient.

In Kubosh v. State, 2006 WL 560186 (Tex.App. – Houston March 9, 2006) the State asked the trial court to take judicial notice of the bond and the judgment nisi in the court file and rested its case. The surety agreed the court could take judicial notice of its own file but objected to admission of the bond into evidence. The trial court entered judgment in favor of the State and the surety appealed on the ground that the evidence was not sufficient to support the judgment. The Court of Appeals held that the trial court could take judicial notice of the documents, that the surety's evidentiary objections were not raised on appeal, and that the bond and judgment nisi were sufficient evidence to meet the State's burden of proof. The Court of Appeals affirmed the judgment.

In Alkek v. State, 2006 WL 1704210 (Tex.App. – Corpus Christi June 22, 2006) the surety applied for remission of four forfeitures. The trial court heard evidence and granted partial remission of between 40 and 50%. The surety appealed. The Court reviewed the factors to be considered and concluded in each case that the trial court did not abuse its discretion in determining the amount to remit.

In re State of Texas ex rel. Jose R. Rodriguez, 2006 WL 1868280 (Tex.App. – El Paso July 6, 2006) is a successor to the case of the same name reported at 166 S.W.3d 894 (Tex. App. – El Paso 2005). In the earlier case the state prevailed in a mandamus action to force the trial court to permit the County Attorney to represent the state in the bond forfeiture proceeding. This time the state sought mandamus to force the trial court to reverse its denial of the state’s motion to strike an intervention by the bail agent and to force the trial court to rule on certain motions including the state’s motion for summary judgment. The Court of Appeals denied this second request for mandamus. The Court noted that since it was filed the trial court severed the intervention proceeding from the bond forfeiture, so the bail agent’s claims would not delay resolution of the forfeiture action. The trial court’s delay in ruling on the motions, in part by taking a vacation, had not yet risen to the level where mandamus would be appropriate. The Court invited the state to re-file the mandamus request if the trial court did not rule “within a reasonable time upon returning from vacation.”

In Kinnard v. Collin County Bail Bond Board, 2006 WL 1985920 (Tex.App. – Dallas July 18, 2006) the substantive issue was whether a bail bond agent’s office in the county as required by Tex. Occ. Code §1704.213(a) could be at the agent’s residence in an area not zoned for office use. The Board defined “office in the county” in its Local Rule 3.12, and contended that the agent’s office in his home did not qualify. The trial court eventually entered a declaratory judgment for the Board and the agent appealed. The Court of Appeals held that there was no justiciable controversy because after his license was suspended, but before the trial court issued its declaratory judgment, the agent obtained an office that met the Board’s requirements, and Local Rule 3.12 was enacted after the license suspension and so played no part in it. Therefore, the trial court should not have considered the Board’s request for a declaratory judgment. The Court rendered judgment denying the Board’s request for a declaratory judgment without considering the merits of the issue.

Kubosh v. State, 2006 WL 2506498 (Tex.App. – Houston August 31, 2006) affirmed judgment against a surety on two bonds. The defendant failed to appear and the proper procedure was followed to enter judgment. There was some confusion because there was a co-surety whom the government could not find to serve, and the prosecutor misspoke and said the government requested a default judgment against the first surety who was served and did appear. On appeal, the surety argued that the record did not support the judgment, but the Court held that the bond and order nisi were in the court file and the trial could take judicial notice of them without a formal request. The surety also argued that a default judgment had been entered against him even though he appeared, but the Court held that the prosecutor just misspoke and what was entered was based on the record not on a default.

McKenna v. State, 209 S.W.3d 233 (Tex.App. – Waco 2006), in a 2-1 decision, held that the trial court abused its discretion in failing to remit part of the forfeiture and then directed that $15,000 of the $25,000 forfeiture be remitted. The Court reviewed seven factors to be considered, found that there was no evidence of harm to the public or prejudice or expense to the government and that the surety located the defendant, and held the trial court’s denial of any relief to be an abuse of discretion. The Court then went on to weigh the factors itself and order return of all but $10,000. The dissenting Justice argued that it was not the State’s burden to prove prejudice or harm to the public, it was the surety’s burden to prove their lack, and the fact that there was no evidence should not have aided the surety’s cause. The dissent characterized the majority as engaging in a de novo decision of the case rather than appellate review of the trial court’s discretion. The dissenting Justice would have affirmed the trial court. [Published]. Safety National Casualty Corp. v. State, 225 S.W.3d 684 (Tex. App. – El Paso 2006) affirmed a trial court judgment remitting only 50% of the bond. The defendant failed to appear, but the bail agent called him and he appeared the next morning. Since he provided no excuse for his failure to appear (he just forgot), the trial court forfeited the bond and had the defendant taken into custody. In the trial court the surety argued that it was exonerated pursuant to Article 22.13(a)(5) of the Code of Criminal Procedure (since the defendant was incarcerated), but the trial court held that statute an unconstitutional infringement on the separate powers of the judiciary. On appeal the surety did not adequately raise or brief that issue, and the Court refused to consider it. The surety also argued that it was entitled to full remittitur pursuant to Article 22.16(a) because the defendant was later released on a new bond. The Court held that mandatory remittitur under Article 22.16(a) was a violation of the separation of powers provision of the Texas Constitution because it removed the judge’s discretion over remission of the bond.

As a matter of judicial discretion, the defendant’s failure to provide an excuse for his non-appearance justified partial forfeiture of the bond, and the trial court did not abuse its discretion in ordering remission of only 50% of the bond amount.

In Drake v. Spriggs, 2006 WL 3628028 (Tex.App. – Corpus Christi December 14, 2006) the heirs of the defendant sued to recover all or part of the premium paid for the bond. The defendant was arrested in Texas on charges in Colorado. His bond was set at $1 million, and two bondsmen posted it by means of two $500,000 bonds. The condition of the bonds was that the defendant would appear in Colorado, and one of the bondsmen escorted him there. The Colorado judge, however, would not accept the Texas bonds and required that he post another bond from a surety licensed in Colorado. After the charges were resolved and the defendant died, his heirs sued to recover the $100,000 premium paid for the Texas bonds. The trial court granted a “no evidence” summary judgment on the plaintiffs’ Deceptive Trade Practices Act claim, and the jury ruled for the bondsmen on the rest of the claims. The plaintiffs appealed.

The Court of Appeals found that several of the issues on appeal were waived because the appellants’ brief did not include sufficient argument or authority. The Court affirmed various evidentiary rulings of the trial court and held that there was no basis to overturn refusal to recuse the trial judge. On the DTPA count, however, the Court held that the summary judgment was in error because there was more than a mere scintilla of evidence to support a misrepresentation of the effectiveness of the bonds to obtain the defendant’s release in Colorado. The case was remanded for further proceedings as to the DTPA count. The verdict for the bondsmen was otherwise affirmed.

Linder v. Bell County Bail Bond Board, 2007 WL 437163 (Tex.App. – Austin February 8, 2007) affirmed denial of an injunction to prevent the county bail bond board from refusing to renew the plaintiff’s license. Her application had a number of discrepancies and errors, and the trial court did not abuse its discretion in denying the injunction. In Westmoreland v. State, 2007 WL 677889 (Tex.App. – Tyler March 7, 2007) the surety and bail agent appealed from a default final judgment forfeiting the bond. The Court held that the bail agent was not a party to the suit and could not file a restricted appeal but reversed the judgment on the surety’s appeal because the record did not establish compliance with Tex. Code of Crim. Procedure Art. 22.04, which required the citation (apparently the Texas version of a summons) to have attached to it a copy of the judgment of forfeiture, bond and power of attorney. The citation also must notify the parties cited to appear and show cause why the judgment should not be made final. The citation served by mail on the surety did not comply with Art. 22.04. The Court held that compliance was mandatory and vacated the default judgment.

McKenna v. State, 2007 WL 776095 (Tex.App. – Waco March 14, 2007) held that the trial judge was not disqualified because he was a member of the county bail bond board that had suspended the bondsman’s license, and that the trial court was within its discretion in refusing to remit any of the forfeiture. The Court of Appeals reviewed the factors to be considered in deciding a special bill of review under Tex. Code Crim. Proc. Art. 22.17, and found no abuse of discretion. Unlike in McKenna v. State, 209 S.W.3d 233 (Tex.App. – Waco 2006), here the defendant was apprehended in another county and returned by law enforcement officials, and there was no evidence the bondsman helped locate him.

Pruett v. The Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007) superceding on reconsideration 489 F.3d 217 (5th Cir. 2007), affirmed most of the U.S. District Court opinion, reported at 400 F.Supp.2d 967 (S.D.Tex. 2005), holding Subsection (b) of Tex. Occupations Code §1704.109 unconstitutional. Subsection (b) forbids “a bail bond surety, an agent of a corporate surety, or an employee of the surety or agent” from taking certain acts to solicit bail bond business. The prohibited acts are soliciting business from an individual for whom a warrant had been issued but not yet served, unless the surety or agent had a prior bail bond on the individual, and soliciting business in person or by telephone between 9:00 p.m. and 9:00 a.m. or within 24 hours following the individual’s arrest.

The Court held that prohibiting solicitation prior to execution of a warrant or within 24 hours after arrest violated the First Amendment of the Constitution. The County’s argument as to the former was undercut by the fact that it posted outstanding warrants on the Internet 48 hours after they were issued even if they were not yet served, and that it mailed letters to persons with warrants for minor crimes informing them of the warrant and asking them to surrender. These facts undercut the County’s arguments about not tipping off subjects of the warrants or safety of law enforcement officers or prevention of witness intimidation or destruction of evidence. As to the first 24 hours following arrest, the County’s argument was based on prevention of harassment and privacy, but the Court thought it would just postpone solicitation for a day and that most families would want to know if a member was in jail.

The Court upheld the portion of the statute barring solicitation between 9 p.m. and 9:00 a.m. as a narrowly drawn measure to prevent harassment and protect privacy that withstood the constitutional challenge.

Esparza v. Safety National Casualty Corp., 247 S.W.3d 288 (Tex.App. – El Paso August 9, 2007) is one of several decisions in a case challenging the ability of the District Attorney to delegate enforcement of bail forfeitures to the County Attorney. One aspect of the case was the surety’s claim for damages because of the County’s alleged misuse or mishandling of the bonds. Under the Texas Tort Claims Act, a suit against public employees will be dismissed if the State files a motion to compel amendment of the pleadings to name the State in place of the employees and the claimant fails to make such an amendment within 30 days. Since the State filed its motion, which the surety opposed, and the pleading was not amended within the 30 day period, the Court of Appeals reversed the trial court and entered judgment dismissing the claim with prejudice. Esparza v. Safety National Casualty Corp., 2007 WL 2274615 (Tex.App. – El Paso August 9, 2007) is the latest of several decisions in a case challenging the ability of the District Attorney to delegate enforcement of bail forfeitures to the County Attorney. One aspect of the case was the surety’s claim for damages because of the County’s alleged misuse or mishandling of the bonds. Under the Texas Tort Claims Act, a suit against public employees will be dismissed if the State files a motion to compel amendment of the pleadings to name the State in place of the employees and the claimant fails to make such an amendment within 30 days. Since the State filed its motion, which the surety opposed, and the pleading was not amended within the 30 day period, the Court of Appeals reversed the trial court and entered judgment dismissing the claim with prejudice.

Henderson v. State, 236 S.W. 3d 814 (Tex.App. – Waco 2007) upheld the constitutionality of a requirement that a bond for release pending an appeal must be a surety bond not a personal bond. The defendant objected to the distinction between those charged with a felony and those who had been convicted of a felony but were appealing. The Court noted that this distinction did not violate any constitutional requirement.

In McKenna v. State, 247 S.W.3d 716 (Tex.Crim.App. 2008) the defendant failed to appear for trial and the bond was forfeited. The surety eventually located the defendant and procured her re-arrest. The surety moved for remission of the forfeiture and presented evidence of its recovery efforts. The State did not present evidence of any harm or expense it incurred. The trail court denied relief, the Court of Appeals granted 60% remission and the Court of Criminal Appeals reversed and reinstated the trial court’s holding of no remission. The case turned largely on who had the burden to establish the factors that the court should consider and the fact that equitable remission was within the discretion of the trial court. The Court held that the surety, as the party seeking to change the status quo, had the duty to present evidence to support its claim for equitable relief. Since no evidence was presented either way of costs or prejudice suffered by the State or harm to the public or the court could not assume these factors favored the surety. The trial court acted within its discretion in refusing to grant remission of any part of the forfeiture. The Court stated, “On this record, a reasonable trial court could have concluded that equity did not require any remittitur of the bond amount.”

In Pruett v. The Harris County Bail Bond Board, 249 S.W.3d 447 (Tex. 2008) the Texas Supreme Court considered a bail agent’s challenges to enforcement of two rules of the Harris County Bail Bond Board. The rules restricted solicitation of persons for whom warrants were issued and family members of incarcerated defendants. The rules were predecessors to the almost identical statutes challenged by the same agent in Pruett v. The Harris County Bail Bond Board, 499 F.3d 403 (5th Cir. 2007), and the Texas Supreme Court reached the same result in the rules case that the United States Fifth Circuit Court of Appeals reached in the statute case. The Court held that the ban on telephone solicitation between 9:00 p.m. and 9:00 a.m. and before Noon on Sunday was constitutional. The ban on soliciting individuals with open warrants and soliciting within the first 24 hours after arrest were unconstitutional restrictions on the agent’s freedom of speech. The Court also held that the Bail Bond Board acted within its authority in establishing the two rules.

In Safety National Casualty Corp. (Agent Michael W. Cox) v. State, 2008 WL 1747756 (Tex.App. – Houston April 17, 2008) the defendant failed to appear but was incarcerated in another county within a month. He was eventually returned to the county where the charges were pending. Pursuant to Tex. Code Crim. Proc. Art. 22.13, the surety was exonerated but owed court costs, the county’s costs to secure return of the principal “and interest accrued on the bond amount from the date of the judgment nisi to the date of the principal’s incarceration.” The sole issue in the appeal was whether the date of incarceration for computation of interest under Art. 22.13 was the date the principal was incarcerated in the other county or the date he was returned to custody in the county where the charges were pending. The trial court held that it was the latter date when he was returned to the county where the charges were pending. The Court of Appeals reversed and held that “the date of the principal’s incarceration” meant what it said, the date he was incarcerated even if that was in another jurisdiction.

Safety National Casualty Corp. v. State, 273 S.W.3d 157 (Tex.Crim.App. 2008) reversed the Court of Appeals decision reported at 225 S.W.3d 684 (Tex. App. – El Paso 2006) and held that Articles 22.13(a)(5) and 22.16(a) of the Texas Code of Criminal Procedure are constitutional. The defendant failed to appear, but the bail agent called him and he appeared the next morning. Since he provided no excuse for his failure to appear (he just forgot), the trial court forfeited the bond and had the defendant taken into custody. He was released on a new bond prior to entry of final judgment against the surety. The trial court remitted only 50% of the bond, and the surety appealed. The Court of Appeals affirmed, and the surety appealed to the Court of Criminal Appeals. Under Arts. 22.13 and 22.16, the surety was entitled to remission of the bond because the defendant was incarcerated the day after his failure to appear and because he was later released on the new bond. The issue was whether the statutes were an unconstitutional violation of the separation of powers required by the Texas Constitution. The Court held that they were not, and were constitutional, because “Articles 22.13 and 22.16 do not interfere with the trial court’s ability to enter final judgment, nor do they dictate the time frame within which a trial court may enter a final judgment.”

In Castaneda v. State, 2008 WL 2744582 (Tex.App. – Corpus Christi June 30, 2008) the defendants in three cases failed to appear and the trial court entered a judgment nisi and, eventually, a final judgment, against the principal and bail agent. The actual surety on the bonds, however, was not named in the judgments and was not served. The bail agent filed a petition for a bill of review and appealed the final judgments. The Court of Appeals agreed that under Arts. 22.03 and 22.05 of the Tex. Code of Crim. Proc. the surety must be given notice and served with a citation. The principal and all sureties must be named in the judgment nisi. In this case the State did not name or serve the surety, and therefore erred in entering the final judgments solely against the principals and the bail agent. The Court reversed the judgments. In two of the cases the Court directed that judgment be entered in favor of the agent because the four year limitations period had run and would prevent the State from re-instituting the cases naming the surety. In the third case, the defendant had been recovered and pled guilty, so it was dismissed as moot.

In Grimes County Bail Bond Board v. Ellen, 267 S.W.3d 310 (Tex.App. – Houston 2008) the Bail Bond Board suspended and later revoked a bondsman’s surety license because the bondsman had not disclosed unsatisfied judgments in his application. He appealed to the trial court, and at the time the de novo appeal was heard he still had unsatisfied judgments. The trial court nevertheless reinstated his license. The Bail Bond Board appealed, and the Court held that under Tex. Occ. Code §1704.252 the trial court had discretion either to suspend or revoke the license, but it had to do one or the other. It could not reinstate the license of a bondsman with unsatisfied or unsuperceded judgments. The Court stated, “the Act – when read as a whole – evinces a consistent legislative intent to prevent bondsmen with unpaid judgments from continuing to issue bail bonds.” The Court reversed the trial court order reinstating the license and remanded the case.

Safety National Casualty Corp. (Agent Michael W. Cox) v. State, 2008 WL 4899120 (Tex.App. – Houston November 7, 2008) modified the Court’s prior opinion reported at 2008 WL 1747756 (Tex.App. – Houston April 17, 2008) to re-designate the appeals involved as criminal matters rather than civil matters (i.e. to change the docket numbers from “CV” to “CR”) because appeals from bail bond forfeitures are criminal cases even though governed by the Civil Rules. The Court also modified its prior opinion to assess costs against the surety pursuant to Code of Crim. Proc. Art. 22.13(b) rather than against the State as the losing party under Rule of Appellate Procedure 43.4, which would apply in a civil case. Finally, the Court held that the civil appellate filing fee should be collected in appeals from bail bond forfeitures because the civil rules of procedure govern bail forfeiture proceedings after entry of the judgment nisi.

In Rodriguez v. State, 2009 WL 613555 (Tex.App. – San Antonio March 11, 2009) the defendant’s attorney was surety on his $100,000 bond. The initial charge was for possession of cocaine, but the indictment was for possession with intent to distribute. The amounts of drugs were the same, however, and the charges arose out of the same facts. The surety sought a bench warrant to surrender the defendant. The court took the request under advisement but signed the warrant a week after it was requested. The prosecution elected not to seek forfeiture of a co-defendant’s bond posted by a surety agent, but did successfully seek forfeiture of the attorney’s bond. The attorney appealed. The Court thought that the charge of possession with intent to distribute, which did not increase the maximum possible penalty, arose from the original charge and was not a variance between the charge, the indictment and the judgment nisi. The bond remained applicable under Tex. Code Crim. Proc. Art. 17.09. Even without the statute, however, the Court found that the variance in the charge did not prejudice the surety. The trial court’s one week delay in issuing the warrant was not a refusal to issue it, which would have discharged the surety under Tex. Code of Crim. Proc. Art. 17.19. The prosecutor did not choose to seek forfeiture of the co-defendant’s bond because the surety had been misled as to the nature of the charge and the amount of drugs found. When the surety’s agent learned of the facts, she communicated with the court and sought to surrender the defendant. The attorney, on the other hand, knew all of these facts when he undertook to write the bond. There was no unequal treatment of the attorney-surety versus the insurer. The Court affirmed the trial court’s forfeiture judgment.

In Garcia v. State, 2009 WL 855988 (Tex.App. – San Antonio April 1, 2009) the surety was the defendant’s attorney. After the bond was posted, the defendant was indicted on the same charges, but with an enhanced penalty as a repeat offender, and the original case was dismissed. The defendant pled guilty in return for the State dropping the repeat offender paragraph and recommending a lower sentence. The defendant failed to appear for sentencing, and the court forfeited the bond. The Court of Appeals held that the indictment was effectively the same charge growing out of the same underlying facts and not a variance that discharged the bond. All that changed was the case number and the repeat offender allegation. The surety was not prejudiced by addition of the repeat offender allegation because by the time the defendant failed to appear it had been dropped as part of the plea agreement. Pursuant to Tex. Code Crim. Proc. art. 17.09 the bond remained in force for later proceedings on the same charge, and the Court found the indictment was the same charge. The Court also held that under the facts of this case, the trial court could take judicial notice of the bond. 137

State of Utah v. Sun Surety Insurance Company, 2003 WL 21295845 (Utah App. February 27, 2003) held that the bail bond was exonerated because the notice of nonappearance was sent to the bail agent not the surety company as required by Utah Code Section 77-20b-101.

In State v. Cobos, 2003 WL 22361492 (Utah App. October 17, 2003) the surety filed a motion in the trial court to set aside entry of judgment against the surety and exonerate the bond. The trial court denied the motion and the surety appealed. The Court of Appeals dismissed the appeal for lack of jurisdiction. According to the Court, in Utah the surety can obtain review only as part of an appeal from the final judgment in the criminal case or by filing a petition for an extraordinary writ.

State v. Sun Surety Insurance Company, 99 P.3d 818 (Utah 2004) held that a bail bond surety did not have standing to appeal the trial court’s refusal to set aside forfeiture of the bond. The Utah Supreme Court thus vacated the Court of Appeals holding that the forfeiture should be vacated because notice of the forfeiture was mailed only to the bail agent and not to the surety. The Supreme Court held that only the criminal defendant and the State are parties to a criminal case with standing to appeal, but in a footnote it suggested that the proper method for the surety to raise its objections is by “extraordinary writ.”

In Lee v. Langley, 2005 WL 1831115 (Utah App. August 4, 2005) the defendant failed to appear for criminal charges in Colorado and left the state in violation of the bond and of his contract with the surety. He was apprehended in Utah at his brother's house by a recovery agent licensed in Colorado but not in Utah. The defendant and his brother sued the surety, bail agent and recovery agent for false imprisonment, assault and reckless endangerment. The trial court dismissed the false imprisonment claim. The Court of Appeals held that the recovery agent was not protected by the Utah Bail Bond Recovery statute because he was not properly licensed, but that his apprehension of the defendant was authorized under the contract between the defendant and the surety and so was lawful and could not form the basis of a false imprisonment claim. The jury found for the recovery agent on the other claims, and the bail agent and surety could not be liable if the primary actor was not liable.

Lee v. Thorpe, 2006 WL 3069513 (Utah October 31, 2006) held that Utah public policy permits a recovery agent licensed in another state to recover a defendant in Utah even though the recovery agent was not licensed in Utah. The defendant failed to appear to answer charges in Colorado. The recovery agent was properly licensed in Colorado but not in Utah where he located and seized the defendant. The defendant sued the recovery agent, bail agent and surety for a variety of torts including ones based on violation of the Utah Bail Bond Recovery Act. The Court held that the bail contract gave the recovery agent the contractual right to seize the defendant wherever located, and that contract barred any tort claim unless the contract was against Utah public policy.

The Court reviewed the background and public purposes of bail and recovery of fleeing defendants and held that public policy supported enforcement of the bail contract. The fact that the recovery agent was not licensed under the Utah Bail Bond Recovery Act was a matter between the enforcement authorities and the recovery agent, but it did not change the public policy favoring recovery of defendants and enforcement of the bail contract. The Court emphasized that the recovery agent had the qualifications and training to be licensed in Utah and that he was licensed under the comparable Colorado statute, which had very similar requirements. The Court affirmed the result reached by the Court of Appeals and reported as Lee v. Langley, 2005 WL 1831115 (Utah App. August 4, 2005).

In Aaron and Morey Bonds and Bail v. Third District Court, 156 P.3d 801 (Utah 2007) the clerk mailed timely notice of forfeiture to the surety, but the notice did not include the prosecutor’s fax number as required by Utah Code section 77-20b-101(1)(b). The Court held that substantial compliance with the statute was sufficient and, in the absence of prejudice from omission of the fax number, the surety was not discharged.

State v. Hance, 910 A.2d 874 (Vt. September 8, 2006) held that an order requiring cash only bail violated the sufficient sureties clause of the Vermont Constitution. The Court discussed conflicting decisions from other states, reviewed the historical background and purposes of bail, and held that cash only bail violated the defendant’s right under the Vermont Constitution to pre trial release by providing a sufficient surety bond.

People v. Dowdye, 2006 WL 2999333 (V.I.Super. September 25, 2006) interpreted the sufficient sureties clause of the Organic Law of the Virgin Islands to prevent bail for a defendant charged with first degree murder when proof is evident or the presumption great. The court found that proof of the defendant’s guilt was evident and that the Organic Law controlled rather than the federal Bail Reform Act. The court denied the defendant bail.

Richardson v. Powel, 2007 WL 2985064 (E.D.Va. March 29, 2007) dismissed a pro se plaintiff’s claim against a bail bond company that arranged for her arrest and return to custody after the indemnitor on the bond reported she intended to flee the jurisdiction. When the recovery agents went to her apartment, she did not answer the door and hid in a closet. The court found that under the circumstances the agents had the right to break in and use some force to arrest the plaintiff. Even assuming the agents were acting under color of state law, the plaintiff did not establish a genuine issue of fact to contest the reasonableness of the agents’ acts.

In Ranger Insurance Company v. Pierce County, 2004 WL 1834650 (Wash. App. August 17, 2004) Ranger wrote two separate bonds for a defendant named Rogers. The bail agent on both was Signature Bail Bonds, Inc. owned by Ray Hrdlicka. Signature also wrote a bond for Rogers, and two bonds for another defendant, with Granite State Insurance Co. as the surety. One of Ranger's bonds for Rogers was forfeited along with Granite's bonds. Signature issued checks to pay the forfeitures but then called Ranger and said that it did not have the funds to pay and that both of Ranger's bonds had been forfeited. Ranger paid the Clerk the face amount of its two bonds -- $35,000, and Signature stopped payment on its checks. The Signature manager (James Barbieri) told the Clerk to apply the $35,000 to pay the forfeited Ranger bond ($15,000) and the forfeited Granite bonds. After the defendants were recovered, Signature had the forfeitures set aside and told the Clerk that it had paid the forfeitures (using copies of the checks it stopped payment on as evidence) and the Clerk refunded the money to Signature. Signature did not send any of it to Ranger.

Ranger sued the Clerk for negligence in applying the payment (which Ranger had designated for the cases on which it was surety) to the Granite bonds and for returning its money to Signature. The trial court granted summary judgment to the Clerk on the theories that Signature was Ranger's agent and could direct how the payment was to be applied and receive the refunds on Ranger's behalf and that the Clerk had quasi-judicial immunity for negligent acts.

The Court of Appeals held that Signature had no actual authority to apply Ranger's money to Granite's obligation and that there were material issues of fact as Signature's apparent authority. It also held that the Clerk was acting in a ministerial capacity and was not protected by quasi-judicial immunity. It vacated the summary judgment and remanded the case. A dissenting judge would have affirmed the trial court.

In State v. Surety Bankers Insurance Co., 2005 WL 583404 (Wash. App. March 14, 2005) the defendant was not apprehended in the 60 day period following forfeiture, and the surety paid the forfeiture. A few days later, the defendant was arrested on a new charge. The surety played no part in the arrest. The trial court refused to remit any of the forfeiture. The surety did not meet the statutory requirement for relief because it was not directly responsible for producing the defendant. It argued that the court nevertheless had discretion to grant relief on equitable grounds. The government argued that the statute foreclosed such equitable relief. The Court of Appeals held that it did not need to reach the issue of whether equitable relief was possible because the trial court exercised its discretion and was within its discretion in denying the relief requested by the surety. Ranger Insurance Company v. Pierce County, 2007 WL 1470455 (Wash.App. May 22, 2007) is a second appeal in this case. In the first appeal, reported at 2004 WL 1834650 (Wash. App. August 17, 2004), the Court remanded the case for trial to determine if the bail agent, Signature Bail Bonds, had apparent authority to direct the clerk to apply part of Ranger’s payment of the face amount of two of its bonds (one of which had not been forfeited) to satisfy forfeiture of another surety’s bonds. On remand, however, the trial court granted the clerk summary judgment based on an affidavit from another clerk that the standard of care for Oregon court clerks had not been violated. The Court of Appeals noted that the trial court had not decided the issues of fact articulated in the first appellate opinion and again remanded the case.

In State v. Kramer, 2007 WL 4200109 (Wash.App. November 29, 2007) the defendant failed to appear on December 19, and the court ordered forfeiture of the bond. The defendant promptly contacted the surety’s agent with an excuse for not appearing and said he would turn himself in after Christmas. The agent did not inform the police of the defendant’s location or take any action to recover him. The police arrested the defendant on December 26, without any help from the surety or its agent, and the surety moved to exonerate the forfeiture other than for any costs or expenses incurred by the Government. The trial court offered to hold a hearing, but the surety declined and relied on the affidavit of the agent and the record in the case. The trial court denied any relief because the surety did not produce the defendant or help in his apprehension. The Court of Appeals affirmed as to complete relief pursuant to R.C.W. 10.19.090. The Court agreed that it was not up to the surety to decide when the defendant should obey the court’s order and the surety effectively collaborated with the defendant. The Court also, however, thought that the trial court should have weighed a series of factors, none of which were in the record of the case, to decide whether a partial remission was equitable, and remanded the case for a balancing of the relevant factors and determination of whether to grant partial exoneration of the bond.

In State v. Cruz, 2008 WL 2811270 (Wash.App. July 22, 2008) the bond was forfeited, and the surety company paid the forfeiture. The accompanying letter and the check itself requested that any remission be sent directly to the surety. The bail agent, an LLC, returned the defendant to custody, and the clerk remitted the forfeiture to the agent. The surety then filed a motion in the criminal case asking the court to order the agent and/or its owner as an individual to return the money to the clerk. The individual owner objected, but the court ordered that the money be returned. The owner appealed. The Court of Appeals held that the court in the criminal proceeding had no jurisdiction since there was no contention that the forfeiture or the remission were erroneous. The trial court should not have heard the surety’s motion, and the Court of Appeals vacated the order.

In State v. Garcia, 2008 WL 2955881 (Wash.App. August 4, 2008) a recovery agent went to the door of the defendant’s motel room while the recovery agent’s assistant watched the back window. A bag was thrown from the window. On the way to the police station, the defendant told the recovery agent, “I’m glad you guys aren’t cops because I had to get rid of something out the window.” The recovery agent reported this to the police who found the bag containing a large quantity of narcotics and a gun. The defendant moved to suppress his statements to the recovery agent because he had not been given a Miranda warning. The court held that the basis for the recovery agent’s custody of the defendant was contractual, the recovery agent was not a state actor, and so no Miranda warning was required.

Ranger Insurance Company v. Pierce County, 192 P.3d 886 (Wash. 2008) affirmed the decision of the Court of Appeals reported at 2007 WL 1470455 (Wash.App. May 22, 2007). In a prior appeal, reported at 2004 WL 1834650 (Wash. App. August 17, 2004), the Court of Appeals remanded the case for trial to determine if the bail agent, Signature Bail Bonds, had apparent authority to direct the clerk to apply part of Ranger’s payment of the face amount of two of its bonds (one of which had not been forfeited) to satisfy forfeiture of another surety’s bonds. On remand, however, the trial court granted the clerk summary judgment based on an affidavit from another clerk that the standard of care for Washington court clerks had not been violated. The Court of Appeals noted that the trial court had not decided the issues of fact articulated in the first appellate opinion and reversed the summary judgment. The Washington Supreme Court agreed and stated, “To prevail, Pierce County must prove Ranger made objective manifestations to Pierce County that caused it to subjectively and reasonably believe Signature had the authority 149

to redirect Ranger’s funds to non-Ranger obligations.” The case was again remanded to the trial court.

Application of Action Bail Bonds, 2004 WL 583592 (Wyo. March 25, 2004) reviewed the standards that a trial court must follow in exercising its discretion on what part of a bond forfeiture should be remitted. The Court held that remission of 50% was not an abuse of discretion and affirmed the trial court.