Guarantees are a form of security insurance. The insurer promises that the person for whom they issued a citizen bond will appear as required by the court or will give a reasonable excuse – immediately – for failure to appear. If the defendant does not show up and his security does not present him to the court or a peace officer in the state, the unit will be confiscated and must be paid to the state.
In State of Montana v. Chalon Michael Kinholt v. ASAP Bail Bonds, 2019 MT 64N, DA 17-0749, Supreme Court of the State of Montana (19 March 2019) ASAP Bail Bonds (ASAP) appealed to The Supreme Court of a decision rejecting its request
On July 15, 2016, the district court issued an arrest warrant for Chalon Kinholt (Kinholt) for breach of his bail and set the bail at $ 15,000. On August 8, 2016, Kinholt failed in a final hearing, which the court had ordered him to participate in in person. Consequently, the district court issued an additional arrest warrant for non-participation in the hearing and for failure to maintain contact with his lawyer. Bail was set at $ 25,000 to ensure Kinholt's appearance and compliance with the court's conditions for release on bail. On December 22, 2016, Kinholt filed a $ 40,000 bail and was released from custody. The bond was issued by ASAP and subscribed by the United States Fire Insurance Company (USFIC).
Despite an order requiring Kinholt to personally attend, Kinholt failed to show up. The state filed a petition requesting that the district court confiscate the $ 40,000 bail. On the same day, the district court entered into its confiscation order and declaration declaring the $ 40,000 bond that Kinholt had placed and his collateral confiscated for Kinholt's failure to appear at the final hearing on April 24, 2017.
Ninety-two days after the petition for confiscation was filed and after the district court received no response from either ASAP or USFIC, the state moved to a standard judgment and sent the proposal to ASAP and USFIC. Neither ASAP nor USFIC responded to the state's proposal. The district court issued a confiscation order in favor of the state and against ASAP and the USFIC for $ 40,000, noting that "no grounds for discharge have been provided by the defendant, his obligor or his security."
ASAP lodged an objection with the court and confiscation and requested a hearing after the response time had expired. The district court denied ASAP's objections and request for questioning.
Sections 46-9-501 to -512, MCA, set out specific material and procedural requirements for forfeiture of the surety. If a defendant does not attend a required court and the bail has been issued, the judge may declare the bail forfeited. If the defendant's securities are handed over to the defendant at any time within ninety days after the confiscation, or appear and satisfactorily excuse the defendant's failure to act, the confiscation will be released without penalty.
According to ASAP, since Kinholt was arrested in Colorado on September 9, 2017, ASAP could have apologized for Kinholt's absence within the additional three days.
As this measure is criminal, ASAP's argument was that it has the right to a further three days to respond to the defendant. In addition, Kinholt's prison on September 9 was not only outside the statutory ninety-day window, it was also outside the ninety-three days that ASAP claims they were entitled to. Kinholt's prison occurred ninety-four days after the confiscation was taken.
The defendant or surety has a burden to show a satisfactory excuse before any discharge can be ordered. Because ASAP failed to present a satisfactory apology and did not appear within the 90-day window, the tape was confiscated.
The Charter expressly provides for "any officer of peace" in this State. The fact that he was imprisoned in Colorado had no effect on the bond. Imprisonment of a foreign sovereign is not in itself a satisfactory excuse for not behaving and a defendant cannot use his own fault to evade accounting with the state. In addition, the guarantor may not be able to make use of an excuse that is not available to the defendant. ASAP was notified of the order and the notice of confiscation and request for breach of contract. ASAP could not respond to any of these. The legislation sets two conditions for a security for discharge: (1) appears within ninety days after confiscation; and (2) satisfactorily excuse the bailiff's failure to act in accordance with the court's decision. Here, ASAP did not meet any of the requirements.
Bail bonds, a type of insurance, require claimants to protect the insurer from the defendant's failure to appear required by the decision allowing him to leave prison with the bond as security for his appearance. When he did not appear, he demanded bail to protect himself, either finding the defendant and presenting him to the court or a peace officer, finding a reasonable excuse for not showing up within 90 days or paying $ 40,000 to the court. In this case, the security did nothing to protect its funds until 94 days after the performance failed. Poor damages treatment cost the bail $ 40,000 plus the cost of attorneys to bring this unsuccessful appeal to the Supreme Court.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice of serving as an insurance consultant specializing in insurance coverage, insurance management, insurance claims and insurance fraud almost equally for insurance policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and email@example.com.
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