restrictive endorsements and OCs

I can't speak from personal experience, but in all probability, the CA and/or OC will not delete upon acceptance of your restrictive endorsed check. Chances are that you will have to sue or at least threaten to sue to "force compliance" and get the deletion you are looking for. However, if the restrictive endorsement is done correctly, you have an excellent chance of getting it removed.

BTW... I would only use a restrictive endorsement as a last resort. If the SOL is up in your state, then there are cheaper solutions.

This is a good link:

http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&threadid=42936&highlight=ryder

 

If you are willing to try a "restrictive endorsement" be very careful to make sure that it works and is allowed in your state. In my state, California, it is not. If they don't delete, send an estoppel letter, then an intent to sue letter, then sue. Expect a fight.

I would also send a check from a bank account other than your own primary account. You don't want them to have your bank account information if they decide to sue. Also, be careful about giving them the possibilty of being able to bounce a check on you. For example, they may wait a few months and then deposit your check knowing the account will have insufficient funds. Choose a stop payment date and send a letter crrr letting them know they have a limited time option to cash the check. These are CA tactics, not OC tactics, btw, so you shouldn't have a problem. Chances are if you make a good offer, they will cash your check, but again, expect a fight on the deletion.

 

I recall someone making a good arguement (bill bauer?) pointing out there is a difference between the westcap endorsement and a restrictive endorsment. I believe the primary difference was that in a restrictive endorsement you're offering less then the amount due. Anyways, the point here was the westcap was valid in those states where restrictive endorsements weren't.

I used the equiv of the westcap 3 years ago with Household Finance, they never deleted the TL, but they stopped reporting it all together. When I disputed it with the CRA at a later date it was dropped.

I'd post date the check(s) as well, see if you can get some FDCPA violations on them.

 

Is a westcap endorsement where you pay the full balance?

 

Westcap's endorsement was an example of a restrictive endorsement. A restrictive endorsement is anything that RESTRICTS the behavior of the person endorsing the check. Westcap was simply offering up a version that he felt was more effective than the usual restrictive endorsement.

Here was one of Westcap's better essays regarding restrictive endorsements. In this thread, he himself acknowledged that restrictive (sometimes called "conditional") endorsements are not enforceable in every state -- and his was no exception of course.

Westcap offered the following as his version of a restrictive endorsement -- irrespective of whether one is actually paying the debt in full or not:

CASHING OF THIS CHECK REPRESENTS PAYMENT IN FULL TO WHOM THE CHECK WAS ISSUED. CREDITOR AND/OR ITS ASSIGNEE, AGENCY, COURT, LAW FIRM AGREE TO REMOVE ANY AND ALL DEROGATORY INFORMATION PREVIOUSLY REPORTED AGAINST SAID ACCOUNT BY SAID FIRM AND BY SAID FIRM'S ORIGINAL CLIENT AND CREDITOR WITHIN 10 DAYS FROM THE DATE OF TENDER. TENDERING OF THIS INSTRUMENT SHALL INDICATE ACCEPTANCE OF THESE AMENDED TERMS OF THE CARDHOLDER AGREEMENT BETWEEN THE PARTIES. VOID IF RIGHTS RESERVED.

He acknowledged that this encompassed a LOT of words and suggested that you have a rubber stamp made with this in small type. Finally, he added, "The bottom line is if they cash the check, the deal is done, and then it is simply a matter of forcing compliance to the agreement." In other words, the creditor must still be forced to comply. The restrictive endorsement is simply another piece of a much larger papertrail mosaic. That complete thread is here.

Doc

 

I am going through this very matter with an OC right now.

It was for a charged off account which is about a year old. 500CL now claimed to be $835 balance. I have been disputing this account with the OC for over a years time asking for proof of the charges and letting them know I was in full dispute.

Well as you know they never complied with any of my letters and never mentioned to the CRAs that the account was in dispute, they just kept verifying the tradeline. Now they've just broken FCRA and PA state laws numerous times and failed to adhere to a nut case letter.

They claim I owe $835.00 but the reporting to the CRAs which is updated monthly says $721.00.

I had billing issues early on that never got addressed and subsequently the charge off.

Now I knew I had them on violations of the FCRA and state laws but did not want to outright sue in fear of a counter suit which I knew they would do. Not that the amount is that much anyway but for what they've done I don't feel I owe them a dime, to me they are criminals.

So this is what I did.....On March 14th of this year I sent them a very detailed letter to their corporate office stating I wanted to settle the matter and that within 15 days I would send them a payment with a restrictive endorsement which would constitute an accord and satisfaction. I also outlined what they needed to do as far as reporting went...which was to completely delete the TL. I stated that if you are not in agreement over the terms to send back the check uncashed and the original debt and contract would still be enforced. I stated again that if they cashed the check when it arrived they would agree fully to the new "Accord" or new contract.

15 days later I sent the check as promised with another letter outling again the terms and reminding them of my first letter they received. They were instructed again if they did not agree they would have to send it back uncashed. I bought a rubber stamp with the biggest possible print that I felt could fit on a check and stamped it in red ink on the back of the check. I also wrote in red felt tip marker on the front of the check as well. A blind man couldn't miss it. I did not send it to their payment processing center but rather their corporate office. I didn't think they would cash it.

To my surprise I found that they did cash the check and now have a copy, front and back of the endorsed check. To my my surprise their bank even stamped on top of my stamp...."Restrictive endorsement Guaranteed, Wells Fargo, MN"

I called their bank to inquire as to what it meant? The lady told me that Wells Fargo guaranteed that they restrictive endorsement was on the check when it was entered into the bank account of the Oc to be cashed.

Alright!! This means their bank is even helping me prove my case!!

I called the OC's recovery department to notify them again of the agreement and terms and they said..."Your crazy!" you still owe us, yada, yada, yada. They even admitted receiving the letters and check with the RE & AS on it but stated to me...We don't recognize that stuff. The orginal contract is still in place and you owe us the money.

They also stated they will not deny any payments and must cash any payments that come to them. I said really??

I then yesterday receive a letter from their corporate office stating they will not honor the agreement I sent to them, they sent a copy of the original agreement which was highlighted in sections and stated they will not delete any TL from my credit report because it would be against the FCRA for them to do that because they have to report accurate information.

Huh??? Deleting an account is against the FCRA, where is that listed anywhere. I must have overlooked that one!

She again stated it was a nice try but didn't work and that they would settle for half the amount and update the TL to paid but settled for less.

I left her a voicemail which stated...."You comply with the terms of our agreement which is recognized in PA or I will file suit against your company in 30days!"


We'll see what happens, I've already drawn up the suit in anticipation of them not complying.

This should be a good one!


Tac

 

No problem...BankFirst!


Complete and utterless aholes!

I knew from the start I would end up suing them but again thought of the counter suit. I only thought of it and did it to protect my ass in court when I actually did file the suit.

Now I have a way around any countersuit of claim on their part and if need be can just focus on their FCRA, PA violations.

I mean either way they were getting sued this month!


Tac

 

tac - good luck and keep us posted!! Although my sole use of the conditional contract ened up working, I never knew whether or not I just got lucky with the CRA dispute and if the check really had any influence on it. Your situation here is great for seeing how this works since the OC is aware of the contract and the bank aknowledges the stamp was there when it was cashed (something I did not receive).

 

Re: restrictive endorsements and OC

This may have been answered before, but is there some resource to let us know which states will allow a restrictive endorsement to be considered a valid contract? And then would the laws of the state you live in apply, or can a corporation hide behind the laws of their state (IE: I'm in State X which allows restrictive endorsements and send a check to CA in State Y which does not enforce the restrictive endorsement would I have a leg to stand on with filing suit if they don't comply?

Thanks in advance for any assistance.

ChrisB

 

Psych Doc
I can never get your who pulled my credit link to work. What gives?

 

Fletch, I don't want to hijack the thread, so quick answer -- I don't know, it's a Yahoo group -- turn your email on, and I'll respond later tonight (after taxes, ugh -- at latest tomorrow).

Doc

 

Re: Re: restrictive endorsements and OC

Chris, some of that information was posted by Westcap in this thread:
http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&threadid=16309

Doc

 

Re: Re: restrictive endorsements and OC

In doing research on restrictive endorsements, I found information for Wisconsin. The link is http://folio.legis.state.wi.us/cgi-...rsement"&infobase=stats.nfo&j1=&jump=&record={23486}&softpage=Browse_Frame_Pg.

 

Re: Re: restrictive endorsements and OC

it seems the bulk of what you will find out there deal with "paid in full" restrictions where cashing the check signifies "accord and satisfaction" on behalf of the person signing it. while researching this, every court case I found dealt with the creditor trying to settle for less then the total amount by putting "paid in full" on the check (hence the "accord and satisfaction" comes in to play when the check is cashed) and the person receiving the check cashing it and saying the debtor still owes the balance (they deny "accord and satisfaction").
I have to wonder if a full payment, but with the conditions of a CRA delete, would take away their defense. If it really is the full amount due, is the denial of Accord and satisfaction by the CA/OC even applicable? would this now make it fall under "normal" contract law?

 

Re: Re: Re: restrictive endorsement

Since I live in one of the states on the list, does that mean that even a CA in a state outside of the list would be required to honor the restrictive endorsement? Would I have to threaten to file suit in my state where the endorsement is considered valid and enforcable?