I have been notified that I have to appear at a hearing to determine if I am to be charged with Larceny by Check.
I submit that based on the definition of the law that I have not committed this crime.
My proof is as follows. Have I provided the correct arguments that the hearing should not proceed to a trial? . Additionally, my name is incorrect on the notice to appear. (Not just a misspelling but both my first and last name are incorrect. Is there any precedent for dismissal due to this?
I believe that this case belongS in small claims court and in a licensing grievance with the State Contracting Board and is Not larceny by Check because of the following facts:
I. Per Massachusetts law: ALM GL ch. 266, § 37 entitled "Drawing and Uttering Fraudulent Checks, Drafts and Orders" says: Whoever, with intent to defraud, makes, draws, utters or delivers any check, draft or order for the payment of money upon any bank or other depositary, with knowledge that the maker or drawer has not sufficient funds or credit at such bank or other depositary for the payment of such instrument, although no express representation is made in reference thereto, shall be guilty of attempted larceny,
1. I did not bounce check. There were sufficient funds. I put a stop payment on a check. When I wrote the check I had no intention of putting a stop payment on the check nor for two proceeding days until the contactor stopped showing up for the job, was dumping materials from another job into the dumpster on our property and when I learned that he didn’t pull the necessary permits and provide proof of insurance to the City of Melrose Building Inspection Department which was a breach of our contract.
I offer the court the following exhibits to submit into evidence to support that I did not bounce a check:
a. Copy of check that was cashed
b. Copy of bank statement showing that check cleared and that a stop payment was put on check and that there was ample funds in the account when the check was cashed and when the stop payment was issued.
c. A letter from the Vice President of my Bank verifying the information in exhibit 1 and 2.
II. Furthermore, per ALM GL ch. 266, § 37 : and if money or property are obtained thereby shall be guilty of larceny. I offer the court the following exhibits to submit into evidence to show that the contractor compensated for the material goods he provided.
D. On March3, 2009 a check cleared in the amount of $708.34 to hold as a deposit for the job.
E: One March 18, 2009 second check of $858.34 cleared to cover the remaining materials costs.
F. We have provided invoices for the materials the contractor purchased for the job:
i. Packing slip for materials
ii. Invoice for cost of goods and delivery that we obtained from another contractor who provided the same materials for a quote request from the same supplier. (We have the the picking slip.)
iii. Cost of a dumpster rented.
iv. Pictures of the dumpster showing contractor loading trash from other jobs. We submit that
only 50% of the cost of the dumpster can be applied to our project.
Total cost of Materials supplied: $1565.00 . Total checks provided: $1566.68
III. Furthermore, per ALM GL ch. 266, § 37 or services are obtained are obtained thereby shall be guilty of larceny. While the contractor provided two days of labor on the roof and one could argue that he was due compensation for his labors, I submit to the court the following exhibits as proof of evidence that the work was defective, in breach of Massachusetts building codes, and has to be removed by the new contractor thereby effectively making the contractor’s work worthless and of no value.
G. Contract of new contractor indicating that due to prior work not being to code and of such poor quality, that all materials will need to be removed.
H. Permit of the new contractor to do the work.
I. Copy of the City Code showing that the water and ice shield that was required and t was not installed by Quality Construction.
J. Photographs provided by new contractor showing all of the mistakes that were done on the work performed by Quality Construction.
IV. In conclusion, I submit that following additional information to support that there were no goods or services that the contractor was not already compensated for and therefore I am not responsible.
1. The existing work needs to be removed. I need to pay the new contractor an additional labor and dumping fee.
2. The shingles and felt are not re-usable and therefore I have lost 50% of the cost of these materials.
3. I needed to hire a cleanup crew to remove the shingles that he left on our property. (Invoice attached).
4. The contractor lied to the dumpster company when I requested that the dumpster was removed from my property and even after I notified him that he breached the contract verbally, he continue to put rubbish from other jobs into the dumpster and cancelled our request to have the dumpster removed. (I have a copy of the letter from the owner of the dumpster company.)
5. I have a letter from the head of my city's building inspector confirm that he broke three building codes.
6. I have documents to show that no permit was pulled.
7. I have a contract signed by contractor that he agreed to pull permits if required by city law.
Have I provided an effective enough case to prevent this case from proceeding to a trial?