Calif is one of the states that allows Restrictive Endorsements when settling accounts. I followed the instructions outlined in Nolo Press' Legal Strategy Book. I sent Macys a ltr. 30 days later sent another letter w/ the proper lang on the cashier check. They cashed the check and updated one CRA as paid charge off and left the others still outstanding. The agreement was the acct was to be removed from my credit report. The atty who wrote the book told me I need to look up the statue (??). Where do I go to get this inf? The atty has since moved. I do not know what my next step is. Nor do I know where to go or how to research this for help. If anyone has any insight, I would greatly appreciate it. Thanks.
I am sorry I don't have an answer for you but am bumping this up....maybe Westcap will see it and be able to answer you. In the meantime I will search the web and see if I can find anything. Tuit
MOST credit card companies have a "NO RESTRICTIVE ENDORSEMENTS" in the fine print... They say they have a right to REFUSE a payment with a "RESTRICTIVE ENDORSEMENT" and treat it as a never received payment, and may charge late fees, over limit fees, and also increase the interest rate to the penalty rate. They also state that if they do accept the payment, THEY ARE NOT BOUND BY ANY WORDS IN THE "RESTRICTIVE ENDORSEMENT"... So it may, or may not work...
That's true George but as Westcap pointed out it is legal and binding in some states like Calif. The wording has to be exactly right though. nins01 you can find your state statutes at http://www.leginfo.ca.gov/calaw.html also you might find this site helpful http://www.carreonand associates.com/resources.htm also do a search on this board for "restrictive endorsements" posted 11/24/01 by Westcap under thread titled "Settlements and Restrictive Endorsements" another thread that lists the actual endorsement wording can be found under the 11/26/01 thread "GLBA,FERPA,NPRA and others" by bbauer. Hopes this helps. Tuit
True but it don't mean that another agreement can't be entered into. When a new contract is signed the old contract becomes null and void.
Exactly right! If they cash the payment with the properly worded "Restrictive Endorsement" in states that legally allow this, then they have agreed to be bound by the "New Agreement" and it's "Terms". Tuit
I am new to the site and want to thank all of you for your input. With the continuing support and guidance maybe I'll get this resolved yet. Thanks Tuit. I found the Calif Civil Code 1526. I am sending the code, the letter I sent and the follow up letter. Tuit, Westcap or anyone out there, please review it and give me your feedback. I believe I am in legal compliance. How do I now go about getting this off my credit report? CALIFORNIA CODES CIVIL CODE SECTION 1521-1526 1526. (a) Where a claim is disputed or unliquidated and a check or draft is tendered by the debtor in settlement thereof in full discharge of the claim, and the words "payment in full" or other words of similar meaning are notated on the check or draft, the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests against accepting the tender in full payment by striking out or otherwise deleting that notation or if the acceptance of the check or draft was inadvertent or without knowledge of the notation. (b) Notwithstanding subdivision (a), the acceptance of a check or draft constitutes an accord and satisfaction if a check or draft is tendered pursuant to a composition or extension agreement between a debtor and its creditors, and pursuant to that composition or extension agreement, all creditors of the same class are accorded similar treatment, and the creditor receives the check or draft with knowledge of the restriction. A creditor shall be conclusively presumed to have knowledge of the restriction if a creditor either: (1) Has, previous to the receipt of the check or draft, executed a written consent to the composition or extension agreement. (2) Has been given, not less than 15 days nor more than 90 days prior to receipt of the check or draft, notice, in writing, that a check or draft will be tendered with a restrictive endorsement and that acceptance and cashing of the check or draft will constitute an accord and satisfaction. (c) Notwithstanding subdivision (a), the acceptance of a check or draft by a creditor constitutes an accord and satisfaction when the check or draft is issued pursuant to or in conjunction with a release of a claim. (d) For the purposes of paragraph (2) of subdivision (b), mailing the notice by first-class mail, postage prepaid, addressed to the address shown for the creditor on the debtor's books or such other address as the creditor may designate in writing constitutes notice. My Add Xxx Xxx Octber 10, 1998 Macys Xxxx Xxxx Re: Acct. # xxxxx To Whom It May Concern. This letter concerns the money I owe you. Upon review of my credit report I found this item still on my credit report. As you will , I submitted a letter to you approximately 2 â?? 3 yrs ago, explaining due to the birth of my child and a separation I was in a state of financial despair. And as part of my separation this account was to be paid by my partner. To the best of my knowledge this account had been paid. It is obvious that there was a good faith dispute over the bill. To satisfy this debt, I will send you a check for $140.00 with a restrictive endorsement and if you cash that check, it will constitute an accord and satisfaction. In other words, You will receive from me check that states â??cashing this check constitutes payment in full.â? If you cash it, that check will take care of what I owe you and will be removed from my credit. Sincerely, XXXXX My Add Xxx Xxx November 16, 1998 Macys Xxxx Xxxx Re: Acct. # xxxxx To Whom It May Concern. Enclosed is a check for $140.00 to cover the balance of account #xxxxxxxxx. This check is tendered in accordance with my letter of October 10, 1998. If you cash this check you agree that my debt is satisfied in full and will be removed from my credit report. Sincerely, Xxxxxxxx On the cashierâ??s check I typed - This check is tendered in accordance with my letter of October 10, 1998. If you cash this check you agree that my debt is satisfied in full and will be removed from my credit report.
How you would proceed to getting it removed from your cr will depend if they agree to your restrictive endorsement and actually cash your check. Again It is my understanding that proper wording is important. Westcap's recommendation is posted in the 11/26/01 "GLBA,FERPA,NPRA and others" thread posted by bbauer. I cannot say if your letters are ok to send and will hope that an expert on this board will answer you one way or another. Don't really know why Westcap has not responded. I will say if it was me, I would not send a personal check and would buy a cashier's check from a different bank than my own, or a postal money order type the "Restrictive Endorsement" and copy front and back of the cashier's check or money order. How about it? Can anyone step in here and help nins01 out? Westcap are you there??? Thanks, Tuit
Looks to me like you did a great job complying with the statute, and you got an excellent argument that Macy's is obligated to remove the account. It isn't a total slam cunk, though. What is a slam dunk is that at the very least if the account is reported it must be reported as paid. Thus, the first thing I would do is dispute the account with the CRAs that show it as unpaid. Next, I would write to the Macy's legal department saying that they have not fulfilled their contractual obligation to remove the account and askintg them to do so. Include copies of all the correspondence and the cancelled check. The problem you will have is what to do if Macy's refuses, and takes the position that while the statute and the letters/check together operate to release your legal obligation for the debt, they do not create a contract for a collateral matter such as removing it from the credit reports. If they take that position, you will have to decide whether you want to test it in court or not. Personally, I think it would be worth a test, but obvioudly its either a huge pain in the butt for you doing it yourself or you'll have to shell out the bucks to hire a lawyer. Good luck, and keep us posted.
The first letter was dated and mailed on â??OCTOBER 10, 1998â? (see previous posting) The second letter was dated and mailed on â??NOVEMBER 16, 1998â? along with a cashiers check with the restrictive endorsement language. (see previous posting) I used the language from the book entitled Money Troubles: Legal Strategies to Use When Coping with Debt published by Nolo Press. They have a chapter on Restrictive Endorsements and step by step instructions. The wording may not be the exact same as in 11/26/01 GLBA, FERPA, NPRA and others, but itâ??s pretty close. Macyâ??s did cash the check back in 1998. I have a copy proving it was cashed. On the front of the cashiers check I typed - This check is tendered in accordance with my letter of October 10, 1998. If you cash this check you agree that my debt is satisfied in full and will be removed from my credit report. They reported it as a paid charge off to Experian. Trans Union and Equifax still show it as an unpaid chargeoff. However, I want it removed entirely from all 3 CRAâ??s. Whatâ??s my next step? Any sample letters out there?
Thanks for the prompt response. I have already contacted Trans Union and Equifax. In the mean time Iâ??ll draft a letter to Macyâ??s as suggested. I hope thatâ??s all it takes to get this removed.
Squwak1200 advice to you is best re-read his post. As to letters you may find something on the Carreon and Associates site. Tuit
Ops as usual I am a bit slow Good Luck nins01 hope it works out for you! As squawk1200 said keep us posted. Tuit
