Bollen to be charged with 5 counts of 44-1-12. Disposing of security.

Given how vague the Attorney General’s press release is on charging Joop Bollen , I went back and asked the AG’s office what charges were being filed. They replied “I can give you the file number – 16-383” and noted “More detailed release tomorrow after initial appearance…”

In having an attorney friend of mine look it up, it’s my understanding that the felony criminal charges filed in this case consist of 5 counts of Class 6 felonies for violating 44-1-12, which reads as follows:

44-1-12.   Destruction, disposal, or removal of personal property subject to security interest as felony. Any mortgagor or grantor of a security interest or other lien of personal property who, while the lien of his mortgage, conditional sales agreement, or security agreement remains in force and unsatisfied, willfully destroys, conceals, sells, or in any manner disposes of or materially injures any part of the property covered by such mortgage, conditional sales agreement, or security agreement without the written consent of the holder of such mortgage, conditional sales agreement, or security agreement, or who willfully abandons the property covered by such mortgage, conditional sales agreement, or security agreement without first giving written notice to such secured party of his intention to abandon such property, or who removes any part of the property covered by such mortgage, conditional sales agreement, or security agreement from the county in which such mortgage, conditional sales agreement, or security agreement is filed except temporarily in accordance with the usual and customary use of the same or similar kinds of property while the lien of his mortgage, conditional sales agreement, or security agreement remains in force and unsatisfied without the written consent of the holder of such mortgage, conditional sales agreement, or security agreement, is guilty of a Class 6 felony.

Read that here.

This is not unlike what’s taking place in the matter of the Gear-Up case, where what’s currently being prosecuted for two of the defendants are similar low level charges involving falsification of evidence.

Not the most significant of charges, but sometimes you have to play the hand you’re dealt.

16 thoughts on “Bollen to be charged with 5 counts of 44-1-12. Disposing of security.

  1. Anonymous

    A security interest isn’t a destroyed record. It’s conversion of a property interest that someone else has an ownership interest in. A form of theft.

  2. mhs

    Not a crime of destroyed records. What the statute covers is conversion of property subject to a security interest. Whenever you give a lender a lien on your property and then sell the property without the lender’s permission and keep the money, it’s conversion, or, more simply, theft.

    Former Minneapolis auto mogul billionaire Denny Hecker is serving ten years in prison for converting assets and hiding them from the bankruptcy court.

    These charges aren’t nothing and aren’t technical, they’re serious.

    1. Pat Powers

      Weak Democrat attempts to tie Rounds to it were and still are, BS and purely motivated by politics.

  3. Mark N.

    Why is the AG’s office being so coy with this? Why was the press release vague, and why would they not tell you what the charges are? Instead they give you the file number and tell you to look it up for yourself, which means they know you’re going to find out anyway. If my memory is correct, when announcing charges against other individuals in the past, the release has included the charges and possibly the classification. It feels like they are trying to downplay this or trying to minimize the exposure it gets in the media.

      1. Mark N.

        I agree that it has the effect of increasing the interest in the case, but I wonder if that was their intent. Troy’s comment below could be accurate in that the AG didn’t want to be accused of misconstruing the matter at all by trying to summarize a complex charge in a press release.

  4. Anonymous

    I noticed that Daugaard and venhuizen are doing their best to poo poo Marty with these charges. “wheels of justice turn slowly….” What have they done about the department of education lately?

  5. Troy Jones

    MHS is right. Conversion of property in violation of a security agreement is very serious and similar to theft (word theft isn’t used as theft has a specific legal meaning).

    Further, restitution doesn’t make the problem go away legally. The entire point of the law is even a temporary conversion (repayment made it temporary) is a crime.

    Mark, I don’t think the AG is being coy. This is a complex charge not easily explained. I don’t blame them for referring one to the charge to be read completely and in context.

  6. Anonymous

    Conversion of property is NOT a crime–it’s a civil tort. This is NOT a conversion charge.

    It’s not a complex crime.

    It’s simple: It’s a crime to destroy, conceal, remove, sell, or abandon real or personal property that is subject to another’s “security interest”. A “security interest” means that a lender has informed the public via a security interest notice filed at the appropriate county courthouse (a “perfected” security interest) that the lender holds a monetary interest (a debt) in property, and that this debt has not yet been satisfied (i.e., a “loan” is outstanding on specific property). The security interest as filed at the courthouse contains a description of the property, the identities and addresses of the lender and borrower, and the amount of the debt/secured interest. For property that customarily is titled, this is known as a “lien”.

    The reason for this law should be obvious. The holders of secured debt on real, personal property, tangible, or or intangible property have a pecuniary interest knowing where that that property is, that it is being used for the purpose intended, and that it is properly taken care of until the debt/loan/mortgage is paid. Thus, it is a crime to diminish that property in a way that harms the lender’s financial interest without notice to or permission of the lender.

    Secured interests as filed at the courthouse also function to protect & inform potential buyers of property (“free and clear”) that the seller is entitled to sell the property outright, to notify potential lenders of an applicant’s debt levels, and to prioritize the settlement of debts if the value of property (secured & otherwise) is not sufficient to satisfy all debts owed by a particular borrower (insufficient collateral).

    Anyone who has a mortgage or a car loan has his name on a security interest document filed at the local courthouse. This is distinct from any title that may exist on that property. And “property” is a nearly all-encompassing category: Businesses may need capital and obtain a loan by offering “accounts receivable” (an intangible asset) as collateral for the loan–the lender will then file a security interest on those accounts receivable.

    Any questions?

    1. Anonymous

      Wow. You are really smart.

      Actually conversion is the underlying unlawful conduct and a tort. In other words conversion is actionable in tort or the basis for a criminal charge.

      Any questions? That’s really obnoxious, by the way.

      1. Anonymous

        -In other words conversion is actionable in tort or the basis for a criminal charge.

        Well no tj, “conversion” is not a basis for a criminal charge.

        In SD, crimes are listed in SDCL, title 22.

        http://legis.sd.gov/Statutes/DisplayStatute.aspx?Type=Statute&Statute=22

        Unlawful taking of the property of another is a “theft”, defined & described in chapter 30A of aforementioned statutes. Using property entrusted by another in an unlawful or unauthorized manner is “embezzlement”, also listed under the theft chapter.

        Now, there is a theft by using rented or leased personal property after the expiration of a lease (SDCL 22-30A-13) , but that theft requires NOTICE to the lessee that the lessor demands return of the property (which of course would not apply to one converting property of another unbeknownst to the lessor, as is likely the case with Bollen–those converting the property of others tend not to want the other person to know about it).

        Most importantly, SDCL 22-30A-16 permits an affirmative defense of a “right to the property”. Those who exercise control & use of property under a security interest typically LAWFULLY POSSESS and use the property (at least initially), and therefore, have an honest claim to the property–THAT’S NOT A CRIME, or a crime of theft. And that’s why conversion is a CIVIL MATTER.

        “actionable in tort”–You have no clue what you’re typing, btw.

        I suppose pointing out inaccuracies could be obnoxious…too bad.

        Dare to question?

  7. mhs

    A better way to look at this, rather than a Black’s definitional debate, is to describe what Bollen got. Simply, it was an interest-free credit card with over a $1 million limit. Nice, huh? A lot of business owners would love to have it. But, they can’t. They have to live by the rules. That’s why it’s a crime to do otherwise.

    A generation or so ago, a Sheriff in the Sioux Falls area, was doing the same thing: using a County account as a free line of credit for his business. More recently, Leftist Limo Lawyer Scott Heidenotreadyforprimetime defended a prominent Sioux Falls business owner who’d also used secured funds to run his enterprise. Both times the defense was: “No harm was done since he paid it all back”.

    In a word: Bull. Hundreds of small businesses fail in SD every year because they run out of cash and have maxed out their credit. They obey the law, don’t convert assets and fail. If you lose your business while a competitor breaks the law, gets away with it and prospers: how do you feel?

    The doesn’t protect just lenders: it protects you and me.

    1. Anonymous

      -it was an interest-free credit card with over a $1 million limit.

      That would not apply to Bollen as charged. Credit cards issued to state agencies or state employees or other public agencies are NOT secured–the lender/credit card issuer has NO secured interest in a credit card issued to a public entity for its or its employees’ use. The AG charged Bollen with using, destroying, or removing personal property subject to a secured interest–credit cards issued to public entities/employees are NOT secured.

      Bollen used or removed (sold?) other property rightfully belonging to the state/subdivision (in which the state had a secured interest) for his own use or benefit.

      A comparison to credit cards would not be appropriate.