Legal Risk of Keeping Unexplained Money in Your Account

Attorney Answer

The money is not yours, and the risk is not in receiving it — it is in spending it once you know it is not yours.

NMSA 1978 § 30-16-1 defines larceny as the stealing of anything of value belonging to another, which requires both a taking and carrying away and the intent to permanently deprive the owner. Money that simply lands in your account through someone else's error involves no taking by you, so neither the deposit itself nor leaving it alone satisfies those elements. Where exposure arises is knowingly spending or withdrawing funds after you have learned they are not yours — that is a very different set of facts.

Be aware that larceny is not the only theory that can be charged on facts like these. Depending on how the money arrived and what is done with it, prosecutors sometimes reach for embezzlement or fraud theories instead, so do not treat § 30-16-1 as the whole picture.

Separately, and regardless of whether anyone is ever charged, the bank keeps a civil right to recover money credited by mistake. It can reverse the deposit without asking you — often after you have already spent it, which leaves you overdrawn and owing fees. That is the outcome most people in this situation actually face.

What you can do

1. Stop using the account for anything discretionary, and do not move the money to another account, to savings, or to anyone else. Moving it is what turns an ambiguous situation into an intentional-looking one. 2. Download or print statements now showing the deposit — date, amount, and any description or originator information. If the deposit is later reversed, that record may be the only proof of what happened. 3. Contact the bank in writing, not just by phone, report the unexplained credit, and ask them to identify and correct it. Keep the confirmation. 4. Leave enough in the account to cover a reversal, and expect it to be taken back without warning. 5. If the extra money is actually from a source you can identify — an employer overpayment, a duplicated benefit payment, a refund issued twice — go to that source directly and ask for the correction in writing. 6. If anyone has already contacted you about the funds, or the amount is large, stop and get advice before responding. Written explanations given in a hurry are hard to take back.