i paid partial balance on a bounced check (cash)..now being sued

Have you been served?

 

Are you able to come up with the money?

 

You are in a really bad place. You have no proof and they are holding a bad check.

Basically your only option is to come up with the money.

 

It's still your word against theirs.

 

This sounds like an agreement but it is oral. This is, it appears, an oral contract.

It would be pointless for Dumb Bob to comment here, as lesson is learned.

They have a check which says on its face some amount. You are claiming you already paid part of what was owed on the check. They have the check, you have nothing to say that you paid anything.

Assuming your facts, the only way they can win is if they are willing to lie under oath. Was anyone there when you gave the money to the "creditor"? Their testimony might possibly be vital.

You could produce an affidavit which you would submit to the court and the other side, saying exactly what you claim happened. This is less than the testimony that they will give in court, because it can't be cross examined, but it does show how serious you are. In a small claims setting, your seriousness might be an important factor.

 

Although he didn't actually say why, Dbob has outlined a big part of your problem in how to defend. You are in small claims court and if you check your rules of civil procedure you will most likely find that discovery is not allowed. It is in some states it is allowed and in others it is not. If it is not allowed in your state the problem becomes one of how to get it out of small claims. The way that is done is by filing an FDCPA lawsuit in district court but you will have to claim damages great enough to cause it to be eligible to file in district otherwise that too would be a small claims case and gain you nothing. Whether or not you can actually win in district isn't really important. Getting it there so you can use discovery is the goal, win, lose or draw.

Another point is that if you can prove that they accepted any amount of money in partial payment the check itself is null and void upon it's face under most state law. That hinges on criminal law because in most states acceptance of a partial payment on a hot check means that a criminal case cannot be filed on the writer of the check. Even acceptance of so little as a dollar turns it into a civil matter. So proving or getting them to admit that they have accepted some money as partial payment may well mean that the check itself is almost worthless except as evidence of a debt which is the way they are using it now.

If they have complained that the check is what they are suing on then they have actually filed in the wrong court anyway. Hot checks are a criminal matter and the case should have been brought as a criminal matter rather than a civil matter. The check should have been turned over to the D.A. for prosecution rather than bringing it to civil court. So the question becomes one of why didn't they file criminal charges.

I learned that several years ago when a man filed a civil case against a state official for having broken a criminal statute and the A.G. filed motion to dismiss because the civil court lacked jurisdiction over criminal matters and the case was dismissed without further ado. I know of another case where the Plaintiff filed a federal case claiming a violation of a criminal statute. The federal judge dismissed the case instantly because only a U.S. District Attorney can bring a charge when a federal criminal statute has been violated. So I'd suggest filing motion to dismiss for lack of venue. Their complaint should have been brought in criminal court and not civil court. Writing a hot check is a criminal matter. That might work and it might not but what have you got to lose by trying that tactic? They can't now file a criminal charge but that is their problem, not yours. On the other hand I certainly wouldn't rely on that to get it dismissed but it is worth a try.
Of course, another reason they are bringing the case in civil court is because no D.A. is going to bring a criminal complaint on a hot check where the plaintiff waited more than 30 days to bring their complaint. So if the judge happens to agree with you that it is a criminal matter and dismisses you are home scott free and if the judge rules against you then demand that the judge certify that decision for appeal and get ready to take the question up on appeal. Doing so will greatly increase their collection costs far beyond what the check was ever worth in the first place. Of course, you will have to hire a court reporter in most courts unless the court provides those routinely. In most courts no defendant should ever go to court without a court reporter. If nothing else doing that can really upset the plaintiff's attorney no end. Supposedly helps keep the judge a bit more cautious in how s/he rules too.

Since they can't possibly bring a criminal charge now that little trick could get you home free so it is worth a shot at least.

So there are three possible ways to win. If you really want to fry their fish for them then go file a federal FDCPA case against them and see how they like them apples. Providing false and misleading information comes to mind as your cause of action in federal court.

 

Well then you can't prove you ever paid him anything.

 

Depending on your rules, you may be able to file a motion to have it moved to district or other higher court. Certainly this will be state specific. It will probably cost money, filing fees are often lower in small claims, but the lack of rules in many small claims courts, at least rules that are written down, make it risky to stay there. Sometimes appeals are limited and require a bond. If the judge has dozens of other cases and gives yours only a couple of minutes, this can mean any complicated argument is lost in the mist. But if you are scheduled for a real trial, you could have hours. You could take testimony from various witnesses and you could cross examine the people who insist that you didn't pay them anything. And discovery suddenly may become an option. If you hire a lawyer and have him serve all this on the other side, it might completely change their calculus, or it might not.

Certainly writing bad checks can be a criminal matter but it is also a civil one. The fact that you don't have standing to enforce random criminal laws doesn't mean that you don't have standing to file a civil complaint for money allegedly owed to make a check written to you good.

Most contracts include clauses which insist that the loser in any court action pay the other side's attorney's fees. Since most checks are not under any specific agreed contract, although some certainly are, Dumb Bob suspects that the state legislature has helpfully outlined rules that allow the winner to add various costs. This link may or may not specifically be correct but it should give some idea what the threat is: State Collection Law Summary - The Commercial Bar

Many courts at least try to record their proceedings using some sort of electronic device. Whether this always works correctly or not is another question. It is important to check the court's rules.

Dumb Bob suspects that they would be an original creditor, which are not covered by the FDCPA.

 

If you appeal the judges final decision you will almost certainly have to post a very high bond. If you appeal a single decision based on a question of law then you don't.

Great idea! But if he can't pay his bills then how is he going to hire a lawyer? Even if he can then what will he do if he finds out that lawyers aren't allowed to practice in his small claims court? Got a suggestion for that?

True but at first we assumed he could prove he had paid money but now we find that he can't.

If he can't pay his bills then it is unlikely he could pay their costs as well.

Quite so but if they can and do hire a lawyer to collect then you can sue the lawyer if he don't follow FDCPA rules. Most of the time it works better to sue the lawyer anyway.

 

Two different charges. They didn't charge him with murder in civil court.