Feeling misled? How to fight back legally

You were in jail and desperately wanted to get out. You got in contact with a bail bondsman who agreed to pay your full bail amount if you paid him 10% of the bail. This is probably what you expected. What you most likely didn’t expect were the additional terms detailing expenses that you might have to pay now, because the bail bondsman didn’t mention them.

Is there any legal remedy available for a defendant who believes they were misled or “duped” by a bail bondsman? The answer: maybe. I have looked extensively at the text of those contracts and the legal support for them in my previous posts. A common theme I have found through my research is that bail bonds agents seem to hold all the power in the transaction, and it is likely that defendants really don’t know what they are getting themselves into. This post is going to look at whether defendants can bring a claim against a bail agent who has violated California’s consumer protection laws. I was unable to find any caselaw in California where this happened. However, as I expanded my research outside of California, I was able to find a state where a claim was allowed under that state’s consumer protection statute.

First, let’s take a look at the law in California. California’s Unfair Competition Law (UCL) (Business and Professions Code Section 17200) states, “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising.

Further, to state a claim under the UCL prong based on false advertising or promotional practices, it is necessary only to show that members of the public are likely to be deceived: actual deception is not required. My colleague, Shauna Lord, spoke with some bail agents here in Santa Clara County who told her that for the most part, the initial conversation between a bail bondsman and a defendant in custody is fairly quick. They usually discuss how much the bail amount is and how the defendant must pay 10% of the total. All the other terms in the contracts I looked at are probably not referenced. When the defendant gets out of jail and goes to the bail agency to sign the contract, it is likely the first time he or she has read the contract in full and has realized what was agreed to. This type of practice seems to fall under the deceptive or misleading aspects of a UCL claim.

I spoke with Scott Maurer, who is a supervising attorney at the Santa Clara Law Katherine and George Alexander Community Law Center. The clinic focuses on helping low-income individuals with legal issues and his focus is on consumer law. Mr. Maurer confirmed what I had suspected in that he had not seen any cases where a consumer protection violation was asserted with respect to a bail bonds contract. But he also stated that didn’t necessarily mean a claim couldn’t be brought. Mr. Maurer told me that issues surrounding bail and involvement with bail bondsman are not the typical types of cases he sees at the clinic. However, he has been involved in sending demand letters to collection agencies who were using abusive tactics to collect on these alleged debts. Although that point is slightly off topic from bail contracts, it is again another indication of the power bail companies hold over the individuals they obtain business from.

As I stated above, I was able to find a case from New York where this issue was addressed. In McKinnon v. International Fid. Ins. Co. (182 Misc. 2d. 517 (1999)), a judge held that the plaintiff’s allegations established a prima facie case of deceptive business practices in violation of New York’s General Business Law Section 349 (New York’s consumer protection statute). Prima facie means upon initial examination of the facts, there is enough evidence to support a claim. Under New York law, in order to establish a consumer protection violation, the conduct must be consumer-oriented and have a broad impact on consumers at large. (McKinnon p. 521) Further, the prima facie case requires that the defendant is engaging in an act or practice that is deceptive or misleading in a material way and that the plaintiff has been injured because of it. (McKinnon p. 522) In this case, the plaintiff alleged that the bail bonds agents (defendants) routinely charged and received fees of at least 10-15% of the total bail amount despite the limits set forth in New York Insurance law, and also that the defendants improperly designated these fees as “expenses” so as to circumvent the limitations placed on premiums. Based on the facts of the case, the judge allowed the suit to move forward. I was unable to find how that case was resolved. There was not a trial court or appellate court decision, so my assumption is that the case settled. However, that doesn’t negate the fact that the case was allowed to proceed under a consumer protection violation.

While New York law governing the bail bonds industry is different from California law, finding that case showed me two things. First, unfair or misleading bail practices by bail bondsmen do not only happen in Santa Clara County, California. I don’t think I’m going out on a limb when I say that at least some bail bondsmen use deceptive practices in other counties in California and other states as well. Second, there are issues both in contractual terms and business practices that could be raised in a lawsuit. I’m not sure why there hasn’t been this type of lawsuit in California, but maybe people who have used a bail bondsman don’t think there is any legal protection for them. Hopefully this issue will be more fully explored by an attorney who is well versed in consumer protection law.

My last post will look at one final issue surrounding bail contracts, analyzing how bail contracts are used for non-English speaking individuals, then wrapping up what I have learned through my research this semester.