Need a Legal Walk thru Here!

Discussion in 'Credit Talk' started by jlynn, Sep 5, 2003.

  1. jlynn

    jlynn Well-Known Member

    Background - Wrote an NSF check to the local DQ for $7 (very seldom used checking account OK!).

    Called them to let them know I knew, and to call me when it came in. Never heard from them - later I checked back with the Owner and they said they send it to a check processing company. Well darn. Sign on the door says Checkcare and $25 fee. DQ has no contact info for the them

    I go down and put some money in this account to cover the negative balance (from the bank's charge). All is well. Still waiting to here from someone on where this check is. I start getting more NSF notices from my bank. WTF?? The check card company reran the check it paid, but then they tried to run thru a $30 ACH debit for the processing fee. I only keep a few dollars in this account as my main bank is in Dallas, and I use it for small checks I get in the mail. So I'm overdrawn again. They hit me twice for the $30 before I could get down there. The bank and I finally decided that I was going to have to close the account because its difficult to stop payment on an ACH - they could change the amount by a penny and get it through. This $7 check has now cost me $50 and it ain't over yet.

    Someone calls me Friday about it - my only response was put it in writing. Got the little golden jewel today in the mail. But! before I go straight to ITS with these people I want to make sure I don't cut off my nose here.

    - continued -
  2. jlynn

    jlynn Well-Known Member

    Here's the letter I got today:

    Restaurant Efund, Inc.

    Dear jlynn:

    Pursuant to local statutes, you have 7 days from receipt of this letter to pay the money listed below. Failure to do so will result in your file being referred to the Worthless Check Division of the State Attorney's Office for charges of "theft check".

    YOUR IMMEDIATE RESPONSE IS REQUIRED. Call when you receive this letter.



    In addition, you may be additionally liable in a civil action for triple the amount of the check, together with the amount of the check, a service charge, court costs, reasonable attorney fees and incurred bank fees.

    Check #
    xxx Amount 7.88
    Fee 30.00
    Paid 7.88
    Due 30.00

    Failure to contact us upon receipt of this letter will be interpreted as a deliverate attempt to use a worthless check to obtain goods fraudently, and will be treated as a criminal matter.

    Stupid Idiot
    Collection Manager
  3. jlynn

    jlynn Well-Known Member

    Lots of issues:

    1. (If you read my links) - the check fee has gone up to $25 since the posting of the opinion letter. But they are trying to charge me $30.

    2. I can't make heads or tails of the criminal letter. I believe it to say that since I have paid the check, the collection of the fee alone is a civil matter. Is that how anyone here is reading it?

    3. I love the opinion letter that an NSF check is a debt under the Texas and Federal FDCPA! I've lost count how many ways I can nail them for this letter.

    4. I have one of the NSF slips that says DQ tried to zap me for $30 not Restaurant Efund, however the bank mentioned it was from the same city as these people.

    5. Am I going to go to jail if I mess with these people?
  4. jlynn

    jlynn Well-Known Member

    Here's the penal code. The check cleared in July - this was the first letter received, and it wasn't sent certified.

    § 31.06. Presumption for Theft by Check

    (a) If the actor obtained property or secured performance of service by issuing or passing a check or similar sight order for the payment of money, when the issuer did not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders then outstanding, it is prima facie evidence of his intent to deprive the owner of property under Section 31.03 (Theft) including a drawee or third-party holder in due course who negotiated the check or to avoid payment for service under Section 31.04 (Theft of Service) (except in the case of a postdated check or order) if:

    (1) he had no account with the bank or other drawee at the time he issued the check or order; or

    (2) payment was refused by the bank or other drawee for lack of funds or insufficient funds, on presentation within 30 days after issue, and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.

    (b) For purposes of Subsection (a)(2) or (f)(3), notice may be actual notice or notice in writing that:

    (1) is sent by registered or certified mail with return receipt requested or by telegram with report of delivery requested;

    (2) is addressed to the issuer at his address shown on:

    (A) the check or order;

    (B) the records of the bank or other drawee; or

    (C) the records of the person to whom the check or order has been issued or passed; and

    (3) contains the following statement:

    "This is a demand for payment in full for a check or order not paid because of a lack of funds or insufficient funds. If you fail to make payment in full within 10 days after the date of receipt of this notice, the failure to pay creates a presumption for committing an offense, and this matter may be referred for criminal prosecution."

    (c) If written notice is given in accordance with Subsection (b), it is presumed that the notice was received no later than five days after it was sent.

    (d) Nothing in this section prevents the prosecution from establishing the requisite intent by direct evidence.

    (e) Partial restitution does not preclude the presumption of the requisite intent under this section.
  5. bugman

    bugman Well-Known Member

    Ive read this post and am a bit overwhelmed. I think you may be finding your answer thru posting this....but ill offer my experience with small checks

    while in college in florida, i wrote a check to a grocery store for $12. since i was transferring to a new university i thought id close my account with this (my account shouldve had about $14)

    i never formally closed the account. i also was charged some crazy bank fee that put my $12 check overdrawn by $3.

    1 year later i received notice from the state that i was a criminal. i went to court. the judge sympathized and told me in open court it was ridiculous, but i still paid a $250 fine and of course $28 overdraft fee, etc...

    this little number cost me alot of cash.

    My opinion---pay it and fight later

  6. jlynn

    jlynn Well-Known Member

    Thanks bugman, but I've moved on to "the principle of the thing". I ran all over town - the DQ, the bank, etc., trying to locate this check so I could take care of it and the service charge that they were ACH debiting me for (is that even legal???).

    Here's my thoughts after sleeping on it - in TX you have to send CMRRR and give a payor 10 days to clear a check before you can push for criminal. They never did this, AND the check has been long paid. So, IMHO I won't be wearing an orange jumpsuit anytime soon.

    The opinion letter (jm 472 link in first post) states
    "A civil suit is the only legal recourse available to a holder of a dishonored check or a collection agency for the collection of such a processing fee."

    If I go by the FDCPA the numbers are outstanding (Morales opinion says its a debt under both TX and FDCPA).

    1. 809(a) - failure to communicate within 5 days - I received an NSF notice for the processing fee 7/10/03.;

    2. 807 (2); (5); (10)?; (11);(14)

    3. 808(1) statutory max is $25 in TX. They claim it is $25 + taxes + fees - I will double check with AG Monday on this.

    Hey - I'm all for equality - they can pay me a few thousand here, and deduct $25.00 :)

    Any thoughts?
  7. sassyinaz

    sassyinaz Well-Known Member

    I have to disagree with bugman, JLynn, I think you're in a good spot.

    They can only charge you the maximum that the state allows. 25 bucks, isn't 30 bucks.

    I am confused about something, need clarification -- you said:

    This $7 check has now cost me $50 and it ain't over yet.

    Did they ever get their 25 bucks, or the difference is bank charges for them having continued to try?

    Under the ACH laws, they can only put it through 2 times.

    They didn't follow Texas' State law with the mandated notice AND the best news (here anyway -- betting you are similiar) once a check goes the way of private collection, the County Attorney won't touch it for prosecution.

    AND, the check is paid -- it is only their charges that are hanging out and those are illegal charges exceeding the State maximum.

    So, their entire letter to you is without a foundation, threatening and intimidating, unconscionable, and harassment and threatening action they can never take!!!!!!!

    I have a mind-boggling soccer mom schedule this weekend, but if you can find your local procedures for check processing through the County Attorney (here it is the County Attorney) you can confirm that they can't go forward or send it back as a criminal matter.

    Checks are subject to the FDCPA, hands-down, there's a lot to back that up.

    Did you check to see if they are licensed/bonded?

    Did that letter have the mini-miranda on it?

    Send those bad boys a validation letter!!!!

    I'll help you search up your confirming statutes and processes when the soccer divas finish later this afternoon.

    Here's this link with the overall ACH process and laws:

    I think you are sitting pretty, high spot, and solid -- just find your local rules for enforcing bad checks and confirm that once the local process is side-stepped, there's no going back, and even should that happen to not be true, they cannot attempt to collect from you more than the maximum amount allowed by the state.

    BTW, I read the opinion the same as you, with the fees remaining, that's civil -- the most they could do is try small claims court IF everything else shakes down.

    The difference between you and bugman, is that they forwarded his CHECK to the state for prosecution -- these people already eliminated the possibility of that step.

  8. sassyinaz

    sassyinaz Well-Known Member

  9. jlynn

    jlynn Well-Known Member

    They never got their processing fees. They tried twice and each time the bank charged me $20 + they charged me $10 for being overdrawn on a Thursday (yes you read that right).

    yep, pretty sure, but going to double check on Monday...didn't get the letter til after 5 Friday, just so I could stew all weekend

    Sassy's nodding w/ jlynn here

    Got that, even better there is also a state attorney opinion letter that says so.

    check for bonding Monday.

    Nope nothing nada - the whole letter verbatim is my 2nd post in this thread. Its a doozy.

    I'm thinking about going staight to ITS, and filing a complaint with NAHA. About the only part of the FDCPA they HAVEN't violated would be continued collection after validation request. Almost seems a wimpy violation at this point LOL!

    Here on Gilligan's Isle!!!!! --
  10. jlynn

    jlynn Well-Known Member

    My county doesn't have online access, but the procedure is the same. I've been on the receiving end once in another county.

    Your post made me reread the letter

    ..."Worthless Check Division of the State Attorney's office."

    These people are just absolute morons, sitting ducks for cneters. Texas the County Attorney (district attorney) handles hot checks - not the state attorney who is the attorney general.

    OMG I am shaking in my boots, and I swear to goodness I have lost 5 pounds just worrying about the Attorney General coming after me! <wink>
  11. jlynn

    jlynn Well-Known Member

    I'm getting there on the statutes. Found the penal code, and the civil code as it pertains to worthless checks. Now, in their letter they mention treble damages ++ in a civil action. I haven't been able to confirm or deny that one.

    I'm having difficulty with Reg. E. I'm not seeing where they violated that, however I am reading elsewhere that they are violating NAHA rules, and found an online complaint form.

    This was a pretty interesting site - just not enough meat in it:
  12. Butch

    Butch Well-Known Member

    Damn, wish I could get a letter like that. LOL

    I never get to have any fun. (pout)

    With the IRS, if you fail to file, it's WILLFUL failure to file. Once you DO file, the WILLFULNESS part is gone, and the case collapses.

    Same with a "bad" check. Before it can be criminal it has to be an INTENTIONAL attempt to steal by check. The malice/forethought/intention to steal needs to be present. Since you paid the principal your "malice" is gone and the case collapses, at least "criminally" speaking. That's how it goes in my state.

    Yeppers, you're "sittin pretty" Jodi.

    Were it my issue I'd make an agreement (written of course) and pay them their silly 30 bux, just to get the issue finalized and off your report, (or STAY off your report).

    Some do disagree with this and consider the "principal of the thing" to be paramount. Personally, protecting my CR is certainly worth 30 bux.

    Then ...

    I'd sue their butt's till hell freezes over.

    But also, if you pay them the $30 you might get them for collecting MORE than is permitted.

    Have fun.

  13. jlynn

    jlynn Well-Known Member

    Well Butch, come on down to my town, buy me an ice cream at the local DQ, and write an NSF check. Then you could play!

    Its not on my credit reports. I bet they couldn't even validate, they would have to produce the check which has already cleared!

    And their 30 bux is illegal!
  14. Butch

    Butch Well-Known Member

    Yer right, of course. That's why I'd pay it. You'd not only remove it as an issue for THEM, but you could show that they not only attempted to collect an illegal amount but they actually did. You'd really have damages.

    Do you think that would strengthen your case?

    (I mean I don't know, just thinkin out loud, which admittedly is sometimes not a good thing) lol


  15. jlynn

    jlynn Well-Known Member

    Uh oh...not the company I'm dealing with, but similar. Some alarming stuff here

    . Accounts that fail this attempt are monitored and represented when funds become available.

    Do these guys not THINK they are collection agencies?
  16. Gai-jin

    Gai-jin Well-Known Member

    I had a bad check to a local best buy over the summer... similar story. I wasn't aware of this site or my rights at the time, but long story short the check cost me $40 in fees from my bank, then the CA ACH'd a $25 fee more than a month later, nearly causing me to bounce another check. :(

  17. jlynn

    jlynn Well-Known Member

    Aha! Busted big time!

    v Resubmitted check fee - There are two requirements that must be met to legally collect an â??NSFâ? fee while resubmitting refund checks electronically:

    - customerâ??s signature

    - a copy of the authorization must be provided to the customer as well as an appropriate phone number to call for questions

    A good solution for point of sale application requires that the back of the check is stamped and then signed by the customer for authorization, while the receipt can include authorization information and the customer service number.

    I guess I could subpoena my #1 child, previous employee of the DQ to testify THIS DIDN'T HAPPEN!

    I need to find the legalize here. I believe it is an NAHA rule.
  18. RichGuy

    RichGuy Well-Known Member


    It looks as if the legal experts have this under control, so I think it's time to ask:

    How was the ice cream? :) :)
  19. jlynn

    jlynn Well-Known Member

    Re: Re: Need a Legal Walk thru Here!

    ROFLMAO - I LOOOOOOVE their soft serve ice cream. In fact, in the spirit of the whole issue I had some today!

    And just to remind you poor pitiful Boomer Sooners DQ's ice cream is much better than Sonic's!
  20. jlynn

    jlynn Well-Known Member

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