Sometimes an individual will owe you money because of something criminal that person did. For example, maybe a drunk driver hit your car and damaged it. Maybe someone wrote you a bad check knowing that they did not have enough money in their account to cover it. Maybe they vandalized your property. Or, maybe they simply stole from you.
If the crime is prosecuted, often you can get an order of restitution in your favor. But, you can also file your own civil claim against the person who wronged you. Best of all, you can do both.
The advantage of a restitution order in a criminal matter is that the State usually does all of the heavy lifting, pays for the prosecution, and sometimes cause the criminal/debtor to face jail time if they don’t pay the restitution. The disadvantage is that the State controls the case, and, once the conviction is in place, collecting restitution may not be as much of a priority to the State as it is to you. However, if an order of restitution has been entered in your favor, you may be able to attempt to collect it directly under IC 35-40-5-7. (In my experience, however, courts are somewhat unfamiliar with this provision and the victim must be prepared to explain the procedure to the court). In addition, the State has a higher burden of proof in a criminal matter (“beyond a reasonable doubt”) than you have in a civil matter (“by a preponderance of the evidence.”)
Although the victim/creditor must shoulder the burden of pursuing a civil case, doing so gives the creditor more control over the outcome and how vigorously the debt is pursued. You control your own destiny in a civil case. As mentioned above, the burden of proof is lighter in a civil case. Additionally, in Indiana, you may be entitled to triple damages and attorney’s fees. Under IC 34-24-3-1, a victim may recover up to three times the damage amount, certain expenses, and attorney’s fees in a civil action related to criminal offenses against property (IC 35-43), criminal confinement and interference with child custody rights (IC 35-42-3-3 and 4), or certain gang activity offenses (IC 35-45-9). Pursuant to IC 24-4.6-1-101, civil judgments in Indiana also accrue interest at the rate of 8% until paid in full.
If you obtain both a restitution order and a civil judgment in your favor, payment toward one should act as a credit for the other. You are not entitled to “double dip.” However, having both a restitution order and a civil judgment gives the creditor more options and a better chance of being compensated for his or her loss.
Have a collection matter in Lafayette or the surrounding counties that requires legal attention? Contact us.