Cancelled Check

[memeb]

Texas My husband is in the metal works business.He built a carport for a lady.Upon completion she wrote him a check for $1230.00.She stopped payment on the check.The carport passed inspection.My husband was told that she is not reliable about paying her bills & that she just wants things for free. What recourse does he have?

 

[JETX]

He can pick his options.

He can sue in civil court (Small Claims) and get a judgment against the person. But, he needs to consider the chances of getting payment from the judgment before going through any expense of court (about $100, which he will be returned in the judgment award).

Or he can consider filing criminal charges against her. Send her a certified RRR letter detailing the work done and the bounced check. Demand that she make good on the payment within 10 days from receipt. Add that if she fails to make good, then he will consider filing fraud and theft charges against her.

Or, he can file a contractor's lien against her property.


Here are some relevant statutes:
In Texas, assuming it wasn't a post dated check, putting a 'stop pay' on a payment for goods or merchandise CAN be considered "Presumption for Theft by Check"" (Texas Penal Code, §31.06). Here is an excerpt from the Statute:
"(f) If the actor obtained property by issuing or passing a check or similar sight order for the payment of money, the actor's intent to deprive the owner of the property under Section 31.03 (Theft) is presumed, except in the case of a postdated check or order, if:
(1) the actor ordered the bank or other drawee to stop payment on the check or order;
(2) the bank or drawee refused payment to the holder on presentation of the check or order within 30 days after issue;
(3) the owner gave the actor notice of the refusal of payment and made a demand to the actor for payment or return of the property; and
(4) the actor failed to:
(A) pay the holder within 10 days after receiving the demand for payment; or
(B) return the property to the owner within 10 days after receiving the demand for return of the property."
Source: http://www.capitol.state.tx.us/statutes/pe/pe003100.html#pe004.31.04

Further, depending on the full circumstances, this could be considered 'False Statement to Obtain Property or Credit' (Texas Penal Code, §32.32), which says in part:
"(b) A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit for himself or another."
Source: http://www.capitol.state.tx.us/statutes/pe/pe003200.html#pe009.32.32

The full Texas statute regarding liens is in teh TX Prop Code, Chapter 53 (online copy at: http://www.capitol.state.tx.us/statutes/py/py005300toc.html
The specific relevant sections are:
§ 53.021. Persons Entitled to Lien
§ 53.022. Property to Which Lien Extends
§ 53.023. Payment Secured by Lien

Finally, here are some links related to the issue of contractor liens in Texas:
http://www.davis-opper.com/do_main/memos/970714-002.htm
http://www.sierraphoenix.com/news/texas_mechanics_lien_changes.htm

 

[HomeGuru]

Thanks Steve, you're a great contributor to these boards.
I'll double your pay if you spend more time working in the Real Estate forums.

Your pal,

HomeGuru

 

[JETX]

HomeGuru, thank you for your excellent offer to double my FreeAdvice pay, but after several hours of anguish and thought, it is with great regret that I must decline your offer. It has come to my attention that by doubling my pay on this forum, it would throw me into a much higher tax bracket, and probably endanger the risk of discovery of my offshore accounts.

Best to you and I really hope that you are able to find someone to accept your gracious offer.

 

[HomeGuru]

Ok, but let me know if your financial situation changes.

 

[memeb]

We filed a lien,but since have found out that she is not listed as the owner. Her deceased husband is listed as the previous owner.Don't know who the person is that is listed as the present owner.
Is it possible to file theft by check charges against her?If so were do we go to file the charges? She refused to sign for the Certified RRR letter.

 

[JETX]

Contact the local District Attorney office and tell them that you want to file "Theft by Check" charges. Take your entire file, including your letter to her with the returned certified mailing.

 

[memeb]

We were unable to file charges. We were told that since it involved a contract either written or verbal it becomes a civil matter.So, I guess we will just have to settle for the lien against the house.We are a very small business & this stinks. We can't take hits like this & stay in business.Thanks for trying to help me out.

 

[JETX]

Go back to your District Attorney office and tell them to wake up!! They either didn't undertand the issues or didn't have their coffee yet.

The 'theft by check' charge has absolutely NOTHING to do with the contract or the civil issues!!

Tell them to show you in the statute (you have a copy of the relevent citation) where is says "except when a contract is involved". Hell, by their definition, when would a check for payment of anything NOT involve a potential civil issues???

Demand that they take your complaint, and if they refuse, ask to speak to an experienced attorney, like maybe the DA himself (most of the intake folks are 'new'... serving their penance so to speak).

Make YOUR elected official do his job and serve the public!

 

[memeb]

The woman had someone to tear the carport down. She has left two messages on the answering machine telling my husband to come & get his material, one that said her lawyer said that he had 10 days to get it off of her property.He has not responded to them. We have not returned to the DA's office to see about filing charges since the last post because we have been out of town.
Can she demand that the material be picked up to justify her not paying for it? We have pictures of the completed carport.