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Discussion in 'Credit Talk' started by Ender, May 4, 2001.
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bump - can anyone help on this?
A check is a written contract; party â??Aâ? executes (signs) a promise to pay party â??Bâ? using a paper item, therefore falling under SOL rules governing contracts. Granted such could be considered an implied contract, but a written one nonetheless.
You can learn more about the legalities of bad-checks in California by logging onto www.FindLaw.com, and running a California search under checks. Correlating cites from Civil Code and Civil Code Procedure will come up in hyperlink, by statute number.
Hope this helps. [;-)
How does a check become a contract? As you pointed out, a check is a piece of paper directing a 3rd party (a bank or other financial institution) to pay a 2nd party a sum of money. It is an instrument of debt, just like the Federal Reserve Notes we all think of as money is an instrument of debt, and is not money in any legal sense of the word. Federal Reserve Notes are instruments of debt and never become contracts by definition and checks are the same and the note you sign when you borrow money is also an instrument of debt, not a contract.
A contract is an evidence of agreement between two or more parties of legal age and of sound mind able to legally contract, and each and every party signatory to the contract must agree to the contract and receive benefit from the contract in order for a valid contract to exist. Absent both the exchange of consideration, real or otherwise, and the consent(agreement) of the contracting parties, no binding contract exists.
A check cannot meet the criteria of being a contract and is therefore not a contract.
What has California done? Have they went off on another of their screwy tangents and turned an instrument of debt into a contract? Such would not be at all surprising.
Under all normal circumstances, if the recipient of a bounced check does not file complaint with the authorities within 90 days, no prosectuion will ensue. Another way to avoid prosecution for a false or bounced check is to get the holder of the check to accept a partial payment. If they do, intent to defraud is circumvented and prosecution cannot ensue. The check then becomes nothing more than a contract and a rather useless one at that because no remedy then exists. Just be sure to get a receipt from the holder of the check so that you can prove that you made attempt to pay and the threat of prosecution is toothless.
Has California somehow managed to turn an instrument of debt into a contract? If so, that would be interesting indeed.
Clearly youâ??ve proven my point, albeit I didnâ??t believe assistance was required. Nonetheless, a check DOES in fact meet contractual criteria and falls under contract guidelines regarding SOL. That, after all, in the context of this thread was the question; whether or not a check is considered a contract by SOL standards. NOT if it is a strict contact by established methods of interpretation.
Foremost, in order to obtain checking privileges in the State of California one must be of legal age (or maintain parental consent that ratifies such). Secondly, when a check is exchanged there is undoubtedly consent â?? a meeting of the minds â?? for payment of some goods or services. Thirdly, and certainly not least, the consideration is the check; an implied promise that funds are good! If the check comes back NSF the implication, thus contract, is breached.
Fanciful theories but they donâ??t apply; statute on criminal check frauds in California is three (3) years, thus prosecution can commence within that time frame. Nice try though. [;-)
Do u no of a site such as that covering ohio?
Well it just so happens I doâ?¦ The same one recommended previously, www.FindLaw.com. What youâ??ll want to do, if I may suggest? Is to click on Laws: Cases and Codes (at about the center of the home page), select US State Laws, locate your state (Ohio) on the list, then (on the following page) tick the selection that reads; Searchable site that provides access to Ohio's Revised Code and voilaâ?¦ Start checking out statutes.
Happy research (it can be lots of fun)! [;-)
Wow - thanks very much to Anthony, Lizardking, and Bill Baur.
LK - Yes, the check is drawn from a bank in CA, but writtin to a business in NV. The SOL in CA is 4 years and the SOL in NV is 3. The original dates of the check was 5/21/97. My response time to the letter the attorney sent me is by 5/21/01. If I don't respond then he is insinuating he is going to take legal action.
I will work on writing a letter as you suggested LK and have you guys take a look at it. Thanks again everyone and I hope I can take care of this..
I have a question regarding the NSF part. So how does this affect the given situation now? If the check did come back because of NSF (the bank held a deposit, multiple checks ended up bouncing and I was charged HUGE fees... long story), does this affect the SOL or anything else? Or is it still 3 years as you mentioned and that I shouldn't worry if the attorney does try to get a judgement because I can always use the absolute defense of SOL?
However, if that is true, I still intend to be proactive and send a letter (RR requested) and try and prevent that in the first place and threaten a counter lawsuit. What are your opinions? Thx in advance..
Youâ??re certainly welcome; itâ??s always a pleasure to help when I can (when time allows).
Also I think LK is on to something here as far the Nevada thing, and Iâ??m gonna do a bit of research for you regarding California guidelines. Seem I recall a friend (collections manager) and I discussing some time ago, that third party collection agents cannot litigate (by assignment or otherwise) in California.
Forgive me but I was never big on collecting checks, back in my days on the (collections) floor. Nonetheless Iâ??m almost positive only the original payee can sue for recovery, yet will check this out before stating for sure.
Here is more specific information regarding this:
The place where the checks were written were in Nevada. There are actually two total: each for $500. One was written by me on MY check written out to the payee of the business. The other was written out to CASH and was cashed by the business. Both were drawn from a bank in Nevada that the business operates in. Now, my bank is from CA.
The attorney is located in CA, about 2-3 hours from where I am. He is however only about 45 mins from the border of CA and Nevada. Once I get home, I can post exactly what else he included as well, and the validation he completed.
I am in the process of writing the letter to the attorney and hope to send that RR requested a few days before May 21st. Thanks again LK and Anthony.. I do very much appreciate your time and help with this.
I also wanted to clarify what was going on. I had gotten a bonus then as well as a huge financial aid check. I deposited both of those in my bank. BOFA ended up having a HOLDING period for both those checks because they said I didn't have a history of doing large deposits (well, of course not because I just opened the account.. duh) . This caused the check and the written memo looking form payee: CASH to both bounce with NSF. (I ended up closing my account with BOFA because then they charged me fees and such and refused to do anything to help me in this and another situation where my backpack with all my stuff was stolen).
Anyhow, in the bundle of papers I received from the attorney, he also included both things with my signature.. it of course matches my signature when I sent the validation as well. Clearly, these were ones I wrote and did.. the only question is to the date. One is dated 5/17/01 and the other is 5/21/01. I was actually on vacation in Nevada at the time. My place of residence has always been CA and I've only had bank accounts in CA. The checks were attempted to be cashed in a bank in NV and the business is also in NV. I just wanted to clarify these details.. thanks again.
Anthony, here is the letter the attorney wrote to me:
I attach your Creditor Disclosure Statement duly
completed on behalf of my client.
Pursuant to my client's NRS 41.620 Notice, the amount requred from you to satisfy your indebtness at today's date is $2397.56. This amount includes the aggregate amount of your dishonored checks, interest thereon at 10% and the statutory penalties.
Please let me have a casher's check/money order (only) for the amount stated which, to avoid court
involvement, should be received by me by May 21 next at the latest.
Any further communication concerning this matter
should be addressed by you or your attorney to me.
Very Truly Yours,
I guess the main question would just be regarding whether or not the SOL on checks for CA is the same as for written agreements (4 years) or/if the SOL for NV is the one that applies here, which would be 3 years in this case. Unless the SOL for checks simply supercedes all of this and they are just simply always collectible because it is signed by the person. Anyhow, I look forward to any help..
You should know that youâ??re asking for assistance regarding some very complex issues, ones better suited for in person review with a competent lawyer. So complex are they that Iâ??d be way of line to attempt giving specific suggestions, so Iâ??ll not go there. What I will do, however, is offer what â??Iâ??dâ? do or may tend to do in a similar situation. You should nonetheless review this matter with an attorney as soon as possible!
Having stated thatâ?¦
Foremost Iâ??d consider paying the amount owed or make arrangements to do so. Especially were I not sophisticated enough to draft motions and pleading required to stop an action in Nevada (and pull it to California). Now if I couldnâ??t do these things right away, Iâ??d start by fully grasping what follows.
The law is contradictory when it comes to check collections under FDCPA. For instance, Ganske vs. Checkrite, Ltd., No., 96-C-0541, Slip op. (W.D. Wis. 7 January 1997), holds that a check is a debt under FDCPA definition; while Sarver vs. Capital Recovery Assoc., Inc., 951 F. Supp.550, (E.D. PA. 1996) and Zimmerman vs. HBO Affiliate Group, 834 F2d 1163 (3d Cir. 1987) rule that checks are not debts as defined by FDCPA. Personally, I tend to lean that they are for many reasons â?? one being that the attorney in your case referred to the other party as a â??creditorâ? thereby establishing a presumption.
Since the SOL in the State of Nevada is six (6) years (under contract), not three (3) as you had thought. Were a debt incurred on or about 5/21/97 in Nevada; it could be litigated for recovery there or California. Clearly my preference would be California because different rules apply, and the trial would be closer to home. Yet if an attorney who practiced in both states were representing my creditor, as in your case, Iâ??d look into defenses there. Iâ??ll explainâ?¦.
As you know FDCPA holds attorneys to the same standards as traditional collection agents, therefore all FDCPA rules would apply to them as well. If a lawyer were to issue a letter to me, like the one youâ??ve indicated. My first defense would be to challenge his/her authority to collect, for violation of the Mini Miranda statement (This is an attempt to collect a debtâ?¦) being absent. But I wouldnâ??t stop there!
CHAPTER 649 of Nevada Revised Code stipulates guidelines collection agents MUST follow, including whom is considered a collection agent as well as a definition of what debt is in that state. After investigating whether or not the creditor lawyer is registered accordingly. Iâ??d make the allegation the creditorâ??s attorney qualifies under this statute, and must therefore comply with regulatory requirements.
But the reality is Iâ??m not in your place, so going into any more detail from here would be inappropriate. It suffices to say, however, that a good attorney could suggest other defenses based on my comments. And the best part is his/her fees could probably be kept under $100, for an initial consultation (where many more concerns could be properly addressed).
Sorry I canâ??t be of more help, but from what I researched your issues are far too complex for web discussions alone. You truly need more personal involvement, preferable with one adequately qualified in law. Alas, so much for limitations of the Internet (ugh)!
NRS 41.620; NEGOTIABLE INSTRUMENTS
Liability for issuance on nonexistent account or drawing on insufficient money; liability for use of invalid credit or debit card.
1. Any person who:
(a) Makes, utters, draws or delivers a check or draft for the payment of money drawn upon any financial institution or other person, when he has no account with the drawee of the instrument or has insufficient money, property or credit with the drawee to pay; or
(b) Uses a credit card or debit card to obtain money, goods, property, services or anything of value, when he knows or should have known the credit card or debit card is no longer valid,
and who fails to pay the amount in cash to the payee, issuer or other creditor within 30 days after a demand therefor in writing is mailed to him by certified mail, is liable to the payee, issuer or other creditor for the amount of the check, draft or extension of credit, and damages equal to three times the amount of the check, draft or extension of credit, but not less than $100 nor more than $500.
2. As used in this section, unless the context otherwise requires:
(a) â??Credit cardâ? has the meaning ascribed to it in NRS 205.630;
(b) â??Debit cardâ? has the meaning ascribed to it in NRS 205.635; and
(c) â??Issuerâ? has the meaning ascribed to it in NRS 205.650.
(Added to NRS by 1985, 1021; A 1987, 134, 1191; 1999, 50)
Anthony: I wanted to thank you very much for your very lengthy post. I appreciate the time and research you have done already with this. First, the reason why I believed NV's SOL was 3 years was because of this page:
I also went back to check it again, and when I did, NV (Nevada) still comes up to be 3 years. Is this in error? If it is, I wonder if CA's SOL is 4 years because that is where I obtained CA's SOL.
As for the mini-miranda part that you mention - no, the attorney never mentions the part about the debt in the most recent letter he wrote. However, he also enclosed a letter that was sent on 11/97 - this I never received however. I am curious as to whether it was sent certified and RR. I had moved from my past address so that may be the reason why I never received it. Anyhow, this is what it has:
THE XXXX LAW FIRM
PO BOX XXXX
CITY, CA XXXXXX
TO: My Name, Address, etc.
CERTIFIED MAIL: XXX XXX XXX
NOTICE PURSUANT TO NEVADA REVISED STATUTES 41.620
BUSINESS NAME, is the payee or holder of two credit instruments or checks number xxx and xxx, drawn by you on Bank of America for the aggregate amount of $1000. These credit instruments or checks, copies of which are attached, were not paid and BUSINESS NAME demands payment of the unpaid amount of $1000 and all accruals. This matter has been referred to us and we are delivering this notice to you in compliance with Nevada Revised Statues 41.620.
AMOUNT DUE NOW: $1000
LESS PAYMENT MADE: $0
TOTAL DUE NOW: $1047.67
POTENTIAL LIABILITY IF TOTAL DUE NOW IS NOT PAID WITHIN THIRTY DAYS AFTER DUE DATE OF MAILING THIS NOTICE:
CHECK AMOUNT: $1000
STATUTORY PENALTY: $1000
LESS PAYMENT MADE: $0
DUE AFTER THIRTY DAYS: $2047.67
You are now on notice that if you fail to pay the total due now within 30 days of the date of this letter BUSINESSN NAME may make a claim against you for the amount of the checks plus three times the amount of each check to a maximum of $500, but in no case less than $100 per check, plus interest, costs of collection, reasonable attorney fees and court costs for the initiation of a lawsuit and service of process.
This is an attempt to collect a debt. Any information obtained will be used for that purpose. Unless you dispute the validity of this claim or any portion thereof within 30 days after receipt of this letter we shall assume the debt to be valid. If you notify us in writing of your dispute within 30 days of receipt of this letter we will mail verification to you. Upon your written request within the 30 day period, we will provide you the name and address of the original creditor if different from the current creditor.
We urge you to take advantage of what may be your last opportunity to avoid incurring significant additional liability pursuant to NRS 41.620. PAYMENT BY CASH, MONEY ORDER, CASHIERS CHECK OR CERTIFIED CHECK IS NECESSARY PURSUANT TO NRS 41.620 TO AVOID THE STATUTORY PENALITIES. Payment must be made to this office.
Agent for BUSINESS NAME
This is also what the validation letter reply had (he also included a copy of this with his letters and copies of the checks)
Name and Address of Creditor:
XXXXXXXXX Place of Business
c/o FIRST LAST NAME, Esq.,
PO BOX XXX
CITY, CA 95667-0567
Name of Debtor: My Name
Address of Debtor: My Address (both previous and now listed)
Account #: XXXXXXXXX
Amount of Debt Purported to be owed:
$1000 plus per NRS 41.620 Notice (Copy Attached)
Date it became payable: 1997
Was this Debt assigned to collection agency or
Neither: R. John YOungs is an attorney and agent for
Amount paid of purchased: N/A
Commission for the collection agency if successful
with assigned debt: N/A
Please attach a copy of the agreement with your client that grants you the authority to collect on this
alleged debt: N/A
Please attach a copy of any agreement that bears the signature of the alleged debtor wherein he/she agreed to pay the creditor:
Copies of the dishonored credit instruments are
attached to the copy Notice herewith.
Please attach copies of all statements while this
account was open : (blank)
Have any insurance claims been made by any creditor regarding this account? (blank)
Have any judgements been obtained by any creditor
regarding this account?
Not Yet (I noticed the YES mark was XXX though)
Have any negative tradelines been reported to any
credit reporting agencies regarding this alleged debt?
If so, please name the credit reporting agencies:
Equifax, Experian, and TU
Please provide the name and address of the bonding
agent for the collection company in case legal action
He also signed the bottom and typed:
R. John Youngs, Esq. to whom any further communication concerning this matter should be addressed.
Basically, the first page was what I posted earlier (before this message a few messages ago), then a copy of the validation he filled out, a copy of the letter he sent certified before (above), a copy of the 2 check (instruments).
Also, to clarify, these 4-5 pages were sent certified, RR which were signed for by someone else that lives at my residence.
Now, given all this information.. I am at bit lost at what my options are. Should I try and negotiate? If I do try and do that, then that would be like me assuming that I own the debt, which in itself can possibily re-age the items? If negotiation is not even possible, then there is no point in even attempting to. Should I try sending a C&D letter and insist they update the tradelines at the 3 CRA's to say "DISPUTED BY CONSUMER" ?
What truly is the SOL and which applies to me? I know I can do motion of change of venue and try and bring the case to a local case if he does go the judgement route. But even if he does, I would feel much better if I knew I can always use SOL has past as an absolute defense. If this debt is something small and not worth the trouble for him and the creditor, maybe I should try sending a C&D letter, something along the lines of:
NAME OF ATTORNEY OFFICE
Attn: ATTORNEY NAME
CITY, ST ZIP
Re: Account #: XXXXXXXX
Thank you for receiving this notice. You have failed to sufficiently answer my request to validate your claim of debt against me. Pursuant to the Fair Debt Collection Practices Act, I request that you cease further communications with me. Please complete and return the attached notice as required by law. If I do not receive your response within thirty (30) days, I will assume that your collection efforts are being terminated and that you have waived all claims against me.
Please note that if any steps towards a judgement are obtained against me, then I will use my absolute defense that the statue of limitations has expired.
Also, you are required by the FCRA laws to report my dispute that a â??dispute is in progressâ? to the credit bureaus: Equifax, Experian, Transunion, and Chexsystems as well as SCAN. You are required by law to report accurate information including the fact that I am disputing your claim to this debt; otherwise you will be in violation of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act.
This notice is given by the collector so as to comply with Fair Debt Collection Practices Act.
If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except
(1) to advise the consumer that the debt collector's further collection efforts are being terminated;
(2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
(3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
Please select one of the following by placing an â??Xâ? over the appropriate line.
Æ?____As the debt collector in this matter, this final notice is to inform you that our collection efforts are being terminated.
Æ?____As the debt collector in this matter, we may invoke a specified remedy, which is ordinarily invoked by us, to collect this alleged debt.
Æ?____As the debt collector in this matter, we intend to invoke a specified remedy to collect this alleged debt.
signature of manager or agent date
This notice is not valid unless completed and signed by an employee or authorized representative of the collector, and timely returned to the consumer. The collector understands that its failure to comply with this federal law may result in civil penalties imposed by the Federal Trade Commission or the United States District Court.
What type of response do you think this may draw? Would he stop bothering me or would this infuriate the attorney and also build a stronger case against me? Any responses are very much appreciated and I look forward to hearing back.. thank you again.
I was also thinking if I should include the threat that I may make a counter lawsuit if he does attempt to do a judgement. How should this be worded LK?
Anthony, I hope you made a mistake of stating NV's SOL as 6 years. When I checked NY (New York), the SOL there is 6 years. For NV, it is 3 years. At least when I refer to the web site I quoted above..
Nope Iâ??m very certain Nevada SOL is six (6) years on written contract. Iâ??ve even informed that particular website you mentioned, that their SOL list is inaccurateâ?¦ Buuuuut, guess they have their reasons for not believing me. Nonetheless, anytime you want the real scoop on SOLs youâ??re welcome to visit: http://www.CreditDefenses.com/statutes. [;-)
NRS 11.190 Periods of limitation
Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:
1. Within 6 years:
(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.
(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.
2. Within 4 years:
(a) An action on an open account for goods, wares and merchandise sold and delivered.
(b) An action for any article charged on an account in a store.
(c) An action upon a contract, obligation or liability not founded upon an instrument in writing.
PS: Iâ??ll post in response to your other comments later today.
Something is desperately wrong here.
You state that one of the checks is dated 5/17/01 and the other 5/21/01.
Neither date is valid unless the checks were post dated because this is just 5/06/01.
If the checks were post dated, then you don't have much to worry about because proveable acceptance of post dated checks just about ruins any chance of your being criminally prosecuted. If the checks are less than 91 days old, then the chance for criminal prosecution is very real even though the attorney seems willing to take it through the judgement /collection process rather than filing criminal charges against you. The amounts you mention of $500 each certainly puts them in the felony class unless there is other reason why criminal penalties cannot now be pursued.
Either something is missing here, incorrectly posted or whatever. But those dates are important.