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Check cashed--now being sued

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JerryBaum

Junior Member
What is the name of your state (only U.S. law)? Arkansas

Hello folks, I hope this is the right section for this question...I guess, the best way to do this is to give the run down of my sisters situation..

She took her car to get an oil change, ( she usually goes to a large chain store for this, but the wait was to long ) so she went across the street to a private filling station. She gets the oil changed, and the owner/manager comes and tells her it is going to be 100 dollars. ( these numbers are made up, for the sake of ease ) Now, my sister gets annoyed at what she thinks is gouging, and tells the man, she can have it done for 30 dollars across the street, and that she is unwilling to pay that amount, and tells the man to take the oil back out of her car, and she will go elsewhere. The man knee-jerks back and fourth with her a couple min, then says he will take 50 dollars instead of 100, and she writes him a check, and drives on her merry way. 4 days later, she gets served with papers to go to small claims court for the remainder of the original 100 price plus court costs. She did not write payment in full on check ( I seldom do either really ), yet he DID in fact cash the check without any notes on it such as under protest, or anything like that. I could have sworn I read somewhere that Arkansas is still one of the states where accepting a check and cashing said check was constituted as an acceptance of payment for said service, but not 100 percent sure. If you can, please advise me on this, and perhaps cite something I can print out for her to take to court with her so she can actually show the judge something to that effect. ( If there is in fact something out there )

I thank you for your time, and wish you all well..

JerryBWhat is the name of your state (only U.S. law)?
 


CourtClerk

Senior Member
Why didn't your sister inquire about the price of their services BEFORE the services were rendered? Seems like common sense to me. You can't just take the oil back out of the car. Once it's in there, it's in there and if he took the oil back out of the car, what was she going to drive away with? No oil at all? Chances are, her oil was mixed with other used oil... so there's no way to give her back HER oil.

He's likely out of gas on his small claims suit, but really, your sister needs to exercise some common sense.
 

JerryBaum

Junior Member
Agreed

"Why didn't your sister inquire about the price of their services BEFORE the services were rendered? Seems like common sense to me. You can't just take the oil back out of the car. Once it's in there, it's in there and if he took the oil back out of the car, what was she going to drive away with? No oil at all? Chances are, her oil was mixed with other used oil... so there's no way to give her back HER oil.

He's likely out of gas on his small claims suit, but really, your sister needs to exercise some common sense."

I agree sir, however, I didn't come to this board for your personal ideals or your opinion, I came for the legal advice aspect, and while I thank you for that, I do wonder again if there is anything she can cite while in small claims court regarding the facts. I do not know the law, I do not pretend to know it, I am simply trying to help her in this matter. And while I assume the judge would know the law, it is kind of an obscure situation I would think. So again, if anyone can point me to something I could print out, or if that would even help her, as I suppose on the internet, ya can print anything you want off of it, but that doesn't make it true....

Thanks again
 

racer72

Senior Member
I agree sir, however, I didn't come to this board for your personal ideals or your opinion, I came for the legal advice aspect, and while I thank you for that, I do wonder again if there is anything she can cite while in small claims court regarding the facts. I do not know the law, I do not pretend to know it, I am simply trying to help her in this matter. And while I assume the judge would know the law, it is kind of an obscure situation I would think. So again, if anyone can point me to something I could print out, or if that would even help her, as I suppose on the internet, ya can print anything you want off of it, but that doesn't make it true....

Thanks again
If your sister is blonde and stacked, claiming to be dumb works very well. This is a case of he said, she said, there is nothing on the internet to help her case. If the mechanic has a signed work release, she's toast. Also, adding notes to checks, this is called a restrictive endorsement, are not binding in most states and a RE cannot override the provisions of a valid contract.
 

justalayman

Senior Member
The man knee-jerks back and fourth with her a couple min, then says he will take 50 dollars instead of 100, and she writes him a check, and drives on her merry way.
depending on exactly what was said by each party, this may or may not have been an agreement to settle the debt for $50 instead of $100. When she tells her side of the story and he tells his, the judge will decide if it was or not.

we have no idea what was said between the parties and that is exactly what is needed to make any sort of determination.
 

JerryBaum

Junior Member
I am amazed

If your sister is blonde and stacked, claiming to be dumb works very well.
Seems like common sense to me
Yanno, the sad fact is...I realize alot of you folks are here for a kick, or to get your rocks off on knowing the answer...However, if you did actually make it through law school, and you are a actual atty, Ho sad are you, that you have to come here and try to make people feel bad, or dumb because of a question they ask.... You guys rock at the whole internet lawyer tuff guy thing..lol

Now...finish off that beer or drink, check on your other posts where you try to make yourself look like the super sweet Johnnie Cochran of internet based law advice sites.

Racer72- You hit the nail on the head with this line

Restrictive Endorsement are not binding in most states. My first post said I was in Arkansas..

"Once a creditor deposits or cashes a full payment check, even if they strike out the words payment in full or writes "I don't agree" on the check, they can't come after you for the balance.



The states in which this law is enforced:

* Arkansas :D
* Colorado
* Connecticut
* Georgia
* Kansas
* Louisiana
* Maine
* Michigan
* Nebraska
* New Jersey
* North Carolina
* Oregon
* Pennsylvania
* Texas
* Utah
* Vermont
* Virginia
* Washington
* Wyoming"


So, I do want to thank the people that read the post and didn't have to throw their 2 cents in there when it really wasn't legal advice, and it really wasn't constructive at all. I really thought the people at some of the kids message boards were bad, I guess it pertains to some of you as well.
 

justalayman

Senior Member
regardless of whether a restrictive endorsement is enforceable or not in Arkansas, you said there was no such endorsement so in reality, the point of stating a RE is enforceable is a moot point.

and if you are going to claim to have proof that you are correct, you might want to actually let somebody know where you are getting your proof. Simply typing what you have looks like nothing more than, well, you typing in what you claim to be correct.

Now, part of the problem with your claim of a RE (or more proper term "accord and satisfaction) is that the amount of the debt was not in dispute. That is a requirement for your RE to be effective. Here is an excerpt from the link in the post you quoted (which was just some guy posting and not an official source):

When a check for a lesser amount marked "paid-in-full" is submitted to a creditor and the debt is not disputed, deposit of the check by the creditor will not discharge the debt. But what happens if the debtor claims that the account was disputed and someone else in the corporation knew about the dispute? This situation often arises where a debtor mails a check to a large corporation and the department receiving the check is different from the department which charged the debtor.
The only claim sis would have had if she had written "paid in full" on the check is not that the amount was in dispute but that there was an agreement that the bill had in fact been reduced to the amount she paid, which is exactly where she is now. While the statement "paid in full" would be supporting evidence of that claim, it in no way causes this to become a offer of accord and satisfaction. Remember, there was no dispute of the true amount of the debt. She simply did not want to pay as much as she was charged and negotiated a lower debt.
 
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JerryBaum

Junior Member
True

However, I think that he will be out of luck when it comes to this. He did the work, he accepted the check with no signed contract or work order, or detailed receipt. This on top of the fact that this station was cited for price gouging last week by the atty generals office, would probably have his credibility looked at a bit. The fact of the matter is, the money is not the big issue here. It is the fact that he worked out the deal with her for a lesser amount, then decided to sue after the fact. This isn't a money issue, it's a principal issue.
 

justalayman

Senior Member
if it is as you say, I hope you would prevail. The only way I can see him prevailing is if he argues your girlfriend claimed she only had $50 available to her at the moment and she would pay him the rest at some time in the future and she failed to do so. That argument would need some sort of proof, such as a bill and receipt showing she paid $50 of a $100 bill though.

Now, of course she has a bill showing the receipt of the $50 and a balance due of $0 to support her case, right?

If not, what kind of bill and receipt does she have?. If you say "none" she deserves to lose simply because everybody knows you get receipts for your payments. Especially in a situation like this, if she did not get a receipt, I would leave her now and never look back. What would happen if the guy forgot to put oil in the car and destroyed her engine? Without proof, she would simply be out of luck. If she is that kind of a girl, dump her now before she costs your all the money you have.:D
 

JerryBaum

Junior Member
sadly

its not my girl, its my sister, and if there would have been a viable way to get rid of her at birth, I assure you, the steps would have been taken.
 

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