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A Better Partnership
March 15, 2016

COA – Two statutes relating to the recovery of bail forfeitures do not conflict and each is a viable remedy for commercial surety companies

In Calvert Bail Bond Agency, LLC v. County of St. Clair, No. 324824, the Michigan Court of Appeals held that MCL 765.28, which provides certain circumstances under which a surety shall recover forfeited recognizances, does not conflict with MCL 600.4835, another means of recovering forfeited recognizances, and thus a commercial surety could pursue a remedy under the latter even though it was not eligible for recovery under the former.  Furthermore, the Court held that the trial court should not have entertained public policy considerations in determining whether MCL 765.28 created a sole remedy or whether justice is better served by one statute over the other.  Instead, that was a question for the Legislature.  
Calvert Bail Bond Agency, LLC (“Calvert”) was a commercial surety on bonds for compensation on behalf of criminal defendants.  Under MCL 600.4835, Calvert sought to recover bond forfeiture judgments that it paid to the County of St. Clair for defendants who did not appear in court as required.  MCL 600.4835 gives a circuit court discretion to set aside penalties if a surety can show good cause.  The trial court dismissed Calvert’s claims and held that the exclusive remedy for the return of these funds was under MCL 765.28 because “to permit recovery under MCL 600.4835 would render MCL 765.28 nugatory.”  Calvert appealed.
Until 2002, MCL 600.6835 was the exclusive remedy by which a surety could seek recovery of a forfeiture paid on behalf of criminal defendants.  In 2002, the Legislature amended MCL 765.28 to require trial courts to set aside forfeiture judgments subject to certain requirements.  The County argued that this was the exclusive means by which a surety could recover a forfeited recognizance.  Because Calvert did not meet MCL 765.28’s requirements, it was barred from recovering the forfeited recognizance.  The Court of Appeals rejected this argument.  The Court held that the remedy under MCL 600.4835 is still viable after the amendment to MCL 765.28.  The Court noted that MCL 600.4835 gives discretion to the court in allowing for recovery of these funds, while MCL 765.28 requires the court to return the funds if a surety meets certain requirements; thus, the two statutes do not conflict and a surety can seek a remedy under either statute.  Moreover, the Court concluded that trial court erred when it weighed public policy concerns in its analysis because are for the Legislature to decide.  The Court of Appeals reversed and remanded the trial court’s decision and instructed it to evaluate Calvert’s claims under MCL 600.4835.     

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