hummer931

Final and Full payment on check... now account charged off

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Hello,

I had a rental house that me and the wife rented and we had 2 attempted break ins while there. Anyway the lease wasent up yet, so we got out of there. On our last check that we sent the property agency it said in MEMO Full and Final payment.. they called my attorney and asked what to do with this and he said cash it if you want any money.

So they cashed it, now here damn near a year later they have me charged off with a collection agency for a couple months rent plus cleaning bills etc.

Can i use that to my advantage at all. as my lawyer is hard to get to.

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I found this under te debit settlement section of this site

I happen to live in NC.

Once a creditor deposits or cashes a full payment check, even if she strikes out the words payment in full or writes "I don't agree" on the check, she can't come after you for the balance. The states in which this law is enforced:

Arkansas

Colorado

Connecticut

Georgia

Kansas

Louisiana

Maine

Michigan

Nebraska

New Jersey

North Carolina

Oregon

Pennsylvania

Texas

Utah

Vermont

Virginia

Washington

Wyoming

Mod could you move this to lawyer in the house if needed??? Sorry if i put this in wrong section.

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What you are talking about is a "restricitve endorsement" Do a search for that term.

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Thank you dive medic for the term. I did a blanket search and only came back with 2 threads which arent of much help. I have been spending hours going through nc state law to find more on this. Can you offer any information.

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I was told in NC it does not matter what is written on the check.. even if I write paid in full and they come after me by law they still can... (This was told to be by a judge.. btw,, )

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This does not sound like a restrictive endorsement to me. It sounds more like accord and satisfaction. You need to look to the statutes of your state to see what the rules are for accord and satisfaction. I assume that you sent the check with the notation on the advice of your attorney. That either means the attorney knew what the law required -- or took the attitude "doesn't hurt to try". I can't read the attorney's mind.

The following is a Answer I wrote for someone else on this subject:

Q. If I mark my check paid in full, does that erase the unpaid part of the debt?

A. In most circumstances, the answer is no.

When there is a real dispute between the parties as to the amount of the debt, the debtor makes a payment marked paid in full, and the creditor accepts and cashes the check, an accord and satisfaction has occurred.

With a genuine accord and satisfaction, the creditor or collector has two choices: He can reject the payment and send the check back to the consumer or he can accept the offered settlement and cash the check wiping out the underlying debt.

Under the Uniform Commercial Code (UCC), the law that states what must happen for an accord and satisfaction to occur, the cashing of a check is considered satisfaction of a claim if:

· The checkwriter gives the check to the other party in a good faith attempt to settle the debt;

· The amount of the debt is disputed by the parties; and

· Either on the check or in an accompanying document, the checkwriter provides a conspicuous statement that the check is in full satisfaction of the claim.

If you have a good faith dispute about the amount of your debt with a large company that processes hundreds of payments a day, simply writing payment in full on your check and sending it to the payment address will usually not act as an accord and satisfaction of the debt.

The law requires that you inform the creditor of your dispute, and that you send your check to any address that is specified for disputes or general correspondence in order to give the creditor a chance to reject your settlement offer. Failure to do so will defeat the accord, or agreement, portion of this process.

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It is both. An accord and satifaction is an agreement where you replace one agreement with another. In it, you satisfy the original loan and replace it with another one (the accord)

With restricitve endorsement, you are essentially saying that by cashing this check, you are agreeing to the accord and satisfaction. In many states, this does not hold water in court. If not, you could sneak by a "paid in full" note on a check on the fifth payment of a $200,000 mortgage. It does not work like that.

Not only that, but remember that the holder of a check no longer has to cash the check, they can now run it electronically. Now your note on the check is no longer applicable.

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"...the lease wasn't up yet, so we got out of there...'

Your lease is a contract. Like many credit matters, this isn't about your residence, your safety or anything else. It's about the money to be paid under the terms of the lease. You voluntarily signed the lease, then left early. You still owe the (remaining) balance.

In addition to reading your state's UCC regarding accord & satisfaction and restrictive endorsements, you may also want to read up on landlord/tenant laws. That will provide specific information about what they can do, have to do to comply with the law and your legal recourse(s). Good luck!

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i have found this from the NC UCC This sounds like i have a pretty open and shut case since the landlord called asking what to do with the check, and he was told to cash it if they wanted anything. Question is since the Collection agency has verified this debit over and over does this put the oc in violation of any possible FCRA or FACTA sections?

Main questions

1-does this sound like its in my favor

2-see any possible other claims under federal law since this has been disputed 3 times thru the bureaus.

§ 25‑3‑311. Accord and satisfaction by use of instrument.

(a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.

(B) Unless subsection © of this section applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

© Subject to subsection (d) of this section, a claim is not discharged under subsection (B) of this section when the claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office, or place.

(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim. (1899, c. 733, ss. 5, 6, 197; 1905, c. 327; Rev., ss. 2154, 2155, 2346; C.S., ss. 2986, 2987; 1965, c. 700, s. 1; 1995, c. 232, s. 1.)

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It's better to have some defense than no defense, but sounds like the ice is a bit thin under your feet there. Seems that you need to get ahold of the attorney who told you to do this in the first place and see if this was a stab in the dark or if he advised this because of some solid legal grounding.

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