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accident settled, now person wants more money

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illini2000

Junior Member
What is the name of your state? California

I recently settled with someone I rear ended outside of my insurance per the estimate he sent me from an autobody shop. He decided to have his car fixed elsewhere (in Vancouver, BC) and now wants the $1800 additional it cost him. I have the estimate he sent me and proof my check to him was deposited (i wrote in the memo section that it was settlement for the accident and the date). I feel like that is what we settled for and I do not owe him anymore money because it was his choice to take it somewhere else and have it fixed without getting information first on how much extra it was going to cost. I have turned it over to my insurance now to see if I can get reimbursed for what I paid him, but I doubt they will go for the additional money he is claiming. he has also not yet produced proof of the additional charges. If he decides to take me to small claims court, does he have a case? Do I? Obviously what I learned here is obvious and I feel stupid enough already for demonstrating what not to do. I just don't want to have to pay someone's legal fees if I'm taken to court over $1800 and I lose.
 


You Are Guilty

Senior Member
Google "release" and "accord and satisfaction". You screwed up by relying on the memo section of the check to act as your release. However, small claims courts being as they are, you still have a shot at using the accord and satisfaction defense should you be sued. (Not a slam dunk you'd prevail, but its a definite possibility.)

Good luck.
 

Zigner

Senior Member, Non-Attorney
Google "release" and "accord and satisfaction". You screwed up by relying on the memo section of the check to act as your release. However, small claims courts being as they are, you still have a shot at using the accord and satisfaction defense should you be sued. (Not a slam dunk you'd prevail, but its a definite possibility.)

Good luck.
I would disagree. I think the OP has a very clear "accord and satisfaction" defense. The one thing the OP *didn't* mention is whether the settlement statement was crossed out. If it was not, then it *IS* a slam-dunk, if OP can prove by microfiche copies from the bank (for example) that the notation was on the check when it was tendered. If it WAS crossed out, then OP probably still has a good chance, but it's a bit more murky there ;)
 

moburkes

Senior Member
I would disagree. I think the OP has a very clear "accord and satisfaction" defense. The one thing the OP *didn't* mention is whether the settlement statement was crossed out. If it was not, then it *IS* a slam-dunk, if OP can prove by microfiche copies from the bank (for example) that the notation was on the check when it was tendered. If it WAS crossed out, then OP probably still has a good chance, but it's a bit more murky there ;)
I disagree. We talked about this before, but on a different topic. I can write "settlement" on my car payment, then, which means that I now own my car free and clear if they cash the check. Memo sections of checks are not legal documents, and cannot be used as such. They are simply notes. The person who cashed the check cannot be held hostage by accepting it. It forces them to NOT cash the check, which is wrong.
 

You Are Guilty

Senior Member
I would disagree. I think the OP has a very clear "accord and satisfaction" defense. The one thing the OP *didn't* mention is whether the settlement statement was crossed out. If it was not, then it *IS* a slam-dunk, if OP can prove by microfiche copies from the bank (for example) that the notation was on the check when it was tendered. If it WAS crossed out, then OP probably still has a good chance, but it's a bit more murky there ;)
While I don't know CA law specifically on the issue, some (many?) states require that, to be held enforceable, the accord/satisfaction has to be signed by the opposing party. That effectively negates the "check memo release" trick some people like to pull.
 

tranquility

Senior Member
This is not an accord and satisfaction issue as it is not precisely contractual in how the "debt" arose. This would be more akin to a relase or covenant not to sue. (Although the two have many concepts which are the same.)While a release needs to be in writing, many courts allow oral releases when supported by consideration. We don't have the facts to determine if the release by the victim to the OP is complete enough to cover all damages and don't know if the victim will claim the doctrine of mistake if the release (if it can be proven) was a general one and the vicitm didn't know of some claims at the time it was made.

I agree with those who say the OP may lose in court, but I disagree with them regarding the effect of the memo on the check. Such a memo can be used to support the theory there was a release, especially if the conversation between the parties reflects that. I don't think the theory of accord and satisfaction is relevant here at all.
 

You Are Guilty

Senior Member
Would you be happier with 'accord and settlement'? :)

I agree the principles may not exactly be the same, but enforcement, whether its a "release" or an "accord", is still going to be up to the judge/skill of the person arguing. (I would imagine CA requires releases to be executed as well).

(For those who disagree, please let me know your mailing address, as I want to send you a check for $0.01, and in the memo line will be "Release for all claims now pending or which could be claimed in the future". Once you cash it, I'm going to drive my car through your living room. :D)
 

moburkes

Senior Member
(For those who disagree, please let me know your mailing address, as I want to send you a check for $0.01, and in the memo line will be "Release for all claims now pending or which could be claimed in the future". Once you cash it, I'm going to drive my car through your living room. :D)
That's MY point. However, I have never attended law school. I babysat for the Dean's children, though. Does that count? The University of Michigan, mind you.:D
 

You Are Guilty

Senior Member
It is evidence, no one is arguing that. But is it dispositive? Not even remotely. It certainly doesn't hurt though.

And the only Dean I care to know is that delightful man who makes those delicious sausages...
 

Zigner

Senior Member, Non-Attorney
(For those who disagree, please let me know your mailing address, as I want to send you a check for $0.01, and in the memo line will be "Release for all claims now pending or which could be claimed in the future". Once you cash it, I'm going to drive my car through your living room. :D)
That's a silly analogy...

Maybe try this one. I agree to perform work at your house. I complete the work and bill you $1,500.00. You think I'm way over the amount that it should have cost, so you send me a check for $1,000.00 with the notation of "Full settlement for amount due/work done at 123 main street".
If I endorse the back of that check and deposit it in my bank, then it can be considered binding. Even if I cross it out and deposit it, it *still* could be considered binding, depending on a number of factors. My only recourse would be to return the check uncashed, or to sue you.

Of course, it's not always so cut and dry, which is why we have The Courts :)
 

illini2000

Junior Member
I don't have the cashed check yet, but I have images of it from my bank website of the front and back. It's not endorsed, it just says for deposit only and the account number. Because the amount in dispute isn't that large ($1800), it seems more of a small claims court issue. Even if I'm required by a judge to pay it, I don't want to be responsible for his legal fees if there are any. I'll see what my insurance company will do. Probably nothing since the car has been repaired. Still no proof of what was done to it, though.
 

Zigner

Senior Member, Non-Attorney
I don't have the cashed check yet, but I have images of it from my bank website of the front and back. It's not endorsed, it just says for deposit only and the account number.
And THAT is why your choice of how to handle this wasn't the best. Because he didn't actually sign the check, it brings in to question whether he actually knew about the endorsement (ie: perhaps his wife or his secretary put the info on the back).
Again, that is what The Courts are for. In any case, you shouldn't be liable for any legal costs (except the filing fee and associated fees) if it goes to Small Claims Court and you lose.
 

You Are Guilty

Senior Member
That's a silly analogy...

Maybe try this one. I agree to perform work at your house. I complete the work and bill you $1,500.00. You think I'm way over the amount that it should have cost, so you send me a check for $1,000.00 with the notation of "Full settlement for amount due/work done at 123 main street".
If I endorse the back of that check and deposit it in my bank, then it can be considered binding. Even if I cross it out and deposit it, it *still* could be considered binding, [highlight]depending on a number of factors[/highlight]. My only recourse would be to return the check uncashed, or to sue you.

Of course, it's not always so cut and dry, which is why we have The Courts :)
See highlighted portion. That's exactly the point we're making - it depends on CA law (which I am not researching :p).

For example, Nevada has a statute that says no-go on this trick:
NRS 104.3206 Restrictive endorsement.
1. An endorsement limiting payment to a particular person or otherwise prohibiting further transfer or negotiation of the instrument is not effective to prevent further transfer or negotiation of the instrument.

2. An endorsement stating a condition to the right of the endorsee to receive payment does not affect the right of the endorsee to enforce the instrument. A person paying the instrument or taking it for value or collection may disregard the condition, and the rights and liabilities of that person are not affected by whether the condition has been fulfilled.
However, other states have different positions (basically depending on whether they follow the UCC or not). It's been a long, long time since I took the class, but I'm fairly sure the UCC permits freely cashing a check with an "under protest" notation made by their signature, even if it purportedly has a restrictive endorsement.
 

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