Terrevue

Legality of check as evidence of payment

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I'm hoping someone with experience in checks as legal instruments can help: 

Long story short,

  • Ex-wife created a credit card account using my name. 
  • I only find out about it after divorce and after getting sued. 
  • Attorney for Plaintiff provides a check as evidence of agreement on an open account. 
  • The check has both my name and the ex-wife's name printed at the top of the check, however it is obviously signed by her. 
  • Although both names are printed on the checks, the account was created and is owned solely by the ex-wife. 
  • Plaintiff attorney cites my name being printed on the check as evidence that I entered into the agreement.  

From what I recall from Business Law class, what is printed on the check is irrelevant other than the routing, account numbers, written amount and signer.  In this case, wouldn't the signer of the check be the person who executed the contract/legal instrument?

Thanks in advance!!

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7 minutes ago, Terrevue said:

I'm hoping someone with experience in checks as legal instruments can help: 

Long story short,

  • Ex-wife created a credit card account using my name. 
  • I only find out about it after divorce and after getting sued. 
  • Attorney for Plaintiff provides a check as evidence of agreement on an open account. 
  • The check has both my name and the ex-wife's name printed at the top of the check, however it is obviously signed by her. 
  • Although both names are printed on the checks, the account was created and is owned solely by the ex-wife. 
  • Plaintiff attorney cites my name being printed on the check as evidence that I entered into the agreement.  

From what I recall from Business Law class, what is printed on the check is irrelevant other than the routing, account numbers, written amount and signer.  In this case, wouldn't the signer of the check be the person who executed the contract/legal instrument?

Thanks in advance!!

I would argue that the check is not evidence that you opened the account.  It’s evidence that she made a payment.  Do you use that checking account?
 

Has the attorney presented credit card billing statements?  If so, where were they sent?  Whose address is listed on the statements?  

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One problem is you live in a community property state.  The implications are rather serious.  For example, a friend of mine in a different community property state wound up having his wages garnished because his ex-wife defaulted on a credit card only she used.  So if she opened the account and defaulted before the divorce was final, you are probably liable.  I say probably, because Louisiana has some weird laws, and I am just saying what is common in other community property states.  

If she opened the account while married but defaulted after the divorce, that may or may not be a different issue.  Depends on Louisiana law, of which I have not a clue.  But if she ran up the balance before you were divorced, in most if not all community property states you would be liable.  

Hiding the account may be fraudulent on her part vis a vis the divorce settlement.  But the credit card company doesn't care.  They will go after you, and leave it to you to go after her for any money they collect.  

 

As far as the check goes, as @BV80 pointed out, this is evidence your wife made a payment on the account.  They would still need billing statements, etc. to prove the balance of the account. They can't suddenly say since she paid them $X at some point it means they are owed $Y.  

 

From looking over your post again, I can't tell if she opened the account BEFORE or AFTER the divorce was final.  If she opened the account AFTER the divorce was final, then you may have a valid defense.  

Again, this has to do with the billing statements and the date of the check.  If the date of the check was AFTER the divorce, then use that as a defense that you had nothing to do with the account since the divorce.  You could claim this is identity theft, since you were no longer married.  That may involve police, and could get her in jail.  So tread very, very lightly on this one.  

If she illegally opened an account in your name after the divorce, I would very, very, very strongly suggest you contact the attorney you used for the divorce before going any further.  In some cases you might actually want to eat the money to keep her out of jail, or negotiate that she pays you a certain amount of the money.  But you have to be very careful, because if you handle this incorrectly you could wind up committing a crime yourself.  If you call her and say "pay me $X or I'll file a police report for identity theft", you may or may not be committing extortion, and that is a MUCH bigger headache for you than any credit card debt could ever be.  Again, I don't know Louisiana law, which is why I say you need to talk to your lawyer.  

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She was my wife when she got the card so the address is the same. Complicated story, but apparently she obtained the card to help cover up her sister's gambling problem without my knowledge.  I guess their plan worked great until we got divorced and everything bubbled to the surface. And yes, I live in a Community Property state.  However, there are two elements that make that somewhat irrelevant:

  1. Community property only applies to property that is deemed beneficial to the community
  2. Identity isn't a community property, ,meaning one member of the community cannot assume the identity of the other for personal gain

So the Plaintiff's attorney is gunning for the angle that a payment on an open account is verification of ownership of that open account.  However, I fail to see, assuming checks operate similar to contracts, how they are able to find success without a checked actually signed from me.  Am I totally off base here?

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@BackFromTheDebt all great points.  See my post above regarding the subtleties here around community property.  I agree with your advice on extortion and the rabbit hole that opens up so will definitely avoid that.  Worst case scenario is, we still have several community property assets undecided that I can use as leverage here if needed.  Items that I was going to let slide that if I now don't, they will amount to more the debt in question.  But that's the plan "B" at this point. 

In the Louisiana statutes there is a noted delineation between property that is not acquired for the benefit of the community.  This gets muddled if it falls into the Doctrine of Necessities but that typically only pertains to medical bills and other critical necessities which a credit card is not a part of.  

So this still brings me back to the check.  That is really the sticking point here that I need to work through.  Luckily, the laws around checks as legal instruments fall outside of Louisiana laws so there may be case law from outside of Louisiana that would be pertinent here. 

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The laws of Louisiana are unique.  There are 49 states based on English Common Law, then there is Louisiana.  

Also, not all community property states are the same.  The laws in Wisconsin are different.  In Wisconsin, you would be stuck.  In Louisiana, maybe not.  

 

I think my advice of talking to your divorce attorney is what you should follow.  You are so far beyond what anyone here could help you with. He may be able to help you sort this out in conjunction with other unresolved issues.  

 

Best of luck to you!

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@Terrevue

I completely agree with @BackFromTheDebt.  Please talk to the attorney you hired for your divorce.   We wish you the best of luck.  If you don’t mind, please let us know how this turns out.  It could help someone else in the future.  

  

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On 3/26/2021 at 1:36 PM, Terrevue said:
  • The check has both my name and the ex-wife's name printed at the top of the check, however it is obviously signed by her. 
  • Although both names are printed on the checks, the account was created and is owned solely by the ex-wife. 
  • Plaintiff attorney cites my name being printed on the check as evidence that I entered into the agreement.  

 

A name being printed on a check DOES NOT constitute any entering into any "agreement". If that is the case, then the attorney should be suing your ex wife also, not just you. The banks name is also printed on the check also, and maybe even the name of the company that printed the check in some cases. Guess they all entered as well?

I am confused though as to how the checks have both your names, but you say she is the one that owns the account? Did you never close the account for whatever reason you could not? If so, then you are still part owner of that joint account most likely. Usually to remove yourself from an account a bank will close that account entirely, and open you and the spouse up new accounts separate from each other.

Obviously signed by her......that your signature signed by her, or hers signed by her? And lastly is the debt you are being sued over for this card time-barred? If it is a charged off account they are trying to collect on, if it's been 3 years from the date of last activity or delinquency, all the rest could be completely moot. Remember, attorneys often just try to get you to pay, they think being sued is intimidating. It is, to an extent, but if you have any defense or counter claims to assert it makes them go away.

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https://www.nslawla.com/articles/who-is-liable-for-debts-after-divorce-in-louisiana/

i did this quick google search and it appears that if she opened the account WHILE you were married (the credit card account) that you would or could be liable for 50% of that debt. I would assume wherever you got "community property is ONLY property that is beneficial....", if they split the debts between spouses in your state, plan on it being split.

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