4 years ago I asked my credit union to set up auto withdrawal of $200.00 per pay period from my paycheck. My account increased by that amount but the money was never withdrawn from my check. Due to the complicated nature of my check and different pay amounts every check, I never noticed that the money was not taken out of my check until recently. I have spent $18,000 of that money.
The answer is not that easy. The credit union will dispute the fact that you had clean hands when you received this money and may claim you knew you were being unjustly enriched or even committed a fraud on the credit union to get this money. I have found that the most efficient collection agency in the world is the criminal justice system. For this reason the credit union may well file charges against you with the Clerk Magistrate alleging some form of fraud or larceny (depending on the facts) and set up a hearing on an application for criminal complaint. At the hearing a clerk would then decide if there is probable cause to believe that that a crime has been committed and that you committed it. The clerk could also decide to assist in resolving the matter between you and the credit union if he can get both sides to agree on a settelment provided you agree to the fact that you owe this money. The Magistrate's role at a clerk's hearing is not to try the case or consider any possible defenses. The primary role of the magistrate when he hears a complaint is to determine whether probable cause exists to require the accused to answer to a criminal charge. Magistrates, however, may decline to authorize complaints where the law allows the conflict to be fairly resolved in a different manner. Our courts have ruled that the implicit purpose of the [G.L. c. 218, §] 35A hearings is to enable the court clerk to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution. Remember you might also have issues with the IRS or DOR for this unclaimed money that you recieved over a four year period. The best advise I can offer you is to not under-estimate what action the credit union will take because it is out $18,000.00. Consult with an attorney who is trained in this area of law who can evaluate your case properly and can advise you accordingly.
Check fraud is a crime, but you do not state facts which would warrant that charge, or any similar crime. If you promised payment and failed to make those payments, the creditor will bring a civil action to recover on the debt.
In the unlikely event such an action is brought, your state and county bar associations can provide you with referrals.
The foregoing is for general information purposes and does not establish an attorney-client relationship.