Rights for stopping payment on check

[smz]

What is the name of your state (only U.S. law)? Texas
Hi,
I would like to know what my rights are for stopping payment on a check to a man that sold us bad coastal bermuda hay for our horses. We contacted him and tried to return the hay to him and he refused to take it back so we stopped payment on the check. He has now filed a claim with Henderson County that we wrote a hot check which is not true we had the funds in our account and we only stopped payment for him being misleading and dishonest on the hay. I am concerned that he will try to take us to small claims court. What are our options to get this resolved?

Thank you for your time.

 

[justalayman]

feel lucky if all that happens is you go to small claims court. Stopping payment such as you have can get you into legal (criminal) problems.

You should have sued the guy if there was a problem. Self help is not looked upon well by the courts.

Your options:

wait until he sues or the DA determines you have committed a crime and deal with that

or make good on the check and if you feel you have been wronged, sue the guy

 

[JETX]

What are our options to get this resolved?

Once again.... justalayman is NOT correct.

Texas allows you to stop pay on a check and avoid a 'bad check charge'... as long as you can show that you had funds to cover the check at the time.
So, go to your banks website NOW and print off your current statement (in case you have to show the court).

Texas Penal Code:
§ 32.41. ISSUANCE OF BAD CHECK.
(a) A person commits an offense if he issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.
(b) This section does not prevent the prosecution from establishing the required knowledge by direct evidence; however, for purposes of this section, the issuer's knowledge of insufficient funds is presumed (except in the case of a postdated check or order) if:
(1) he had no account with the bank or other drawee at the time he issued the check or order; or
(2) payment was refused by the bank or other drawee for lack of funds or insufficient funds on presentation within 30 days after issue and the issuer failed to pay the holder in full within 10 days after receiving notice of that refusal.

Of course this does NOTHING to waive your obligation to take REASONABLE and CUSTOMARY steps to try to resolve your dispute with the seller.... or the sellers right to pursue any actions against you.

 

[justalayman]

check out the law involving stopping payment on a check to defraud a party. I believe in Texas it is considered "theft by check". I believe it would be under Texas penal code 31.06 f 3 & 4

It has nothing to do with having adequate funds in the account. And also notice, I did not state it was a definite claim. It is if the OP refuses to make good on the check that the criminal act comes into play. The OP's action was not to have stopped payment on the check. It was to seek a remedy through the courts. Especially since the seller claims there is no problem with the feed, the OP has effectively stolen the feed. That is why I said they need to make good on the check, so it will not be seen as an intentional act to defraud the seller.

here is a PDF for a merchant to file theft by check. Take notice that it does not require the check to be refused only for lack of funds.

http://www.co.denton.tx.us/dept/jp2/Forms/2.

And the said Defendant ordered the bank or other drawee to stop payment on the check or order, the bank or drawee refused payment to
the holder on presentation of the check or order within thirty days after issuance; the owner gave the defendant notice of the refusal of
payment and made a demand to the defendant for the payment or return of the property, and the defendant failed to pay the holder within
ten days after receiving demand for payment, or has failed to return the property to the owner within ten days after receiving demand for
return of the property. Affiant has knowledge of the above facts by reason of my investigation of affiant’s investigation of the records of
the payee, and examination of such check that was not honored by the bank and on its face such check, through markings placed on the
check by the bank was dishonored and returned, against the peace and dignity of the state.

so, based on the law you quoted, sure, I wouldn't be correct but I did not quote that law, you did. Using the law I quoted, I am correct.

 

[JETX]

so, based on the law you quoted, sure, I wouldn't be correct but I did not quote that law, you did. Using the law I quoted, I am correct.

ROTFLMAO!!!

So, now you are claiming there are TWO separate laws.... the STATUTE that I quoted showing that putting a stop pay on a check, when there funds available, is NOT a criminal act as you claimed.... and a reference that you provide on how to file a 'bad check' complaint (when it is already shown to not be illegal)??

 

[justalayman]

You been hitting the bottle a bit too much today Stephen? I never said the law you quoted was correct, you did.

Here is the law I cited:

Sec. 31.06. PRESUMPTION FOR THEFT BY CHECK.

(f) [added 9/1/95] 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.

that means once the hay dealer have the OP notice that the check was not honored, OP had 10 days to make good on the check or return the property in question. If the OP fails to make good on the check, then it does become a criminal issue.

I never said a bad check was issued, you got that stuck in your mind all on your own. I never said the statute you dug up was appropriate, you did. It is not appropriate but the one I cited is and it can lead to criminal prosecution if the issuer of the check does not make good on the check.

So, I have now given you proof that stopping payment on a check and failing to make good on it is prima facia evidence that a crime (texas penal code 31.03 Theft) has been committed.

You're normally pretty dependable but you seem to really be missing it on this one.

 

[quincy]

This, by the way, is not so much a bad check issue (or a defamation issue) as a breach of contract issue. Both the hay-seller and smz are claiming that there has been a material breach in the contract - the seller is claiming that smz has not fulfilled his side of the agreement by paying for the coastal bermuda hay that was delivered, and smz is claiming that the coastal bermuda hay that was delivered to him by the seller was not as promised, thereby effectively voiding his contract with the seller and his need to pay for the goods delivered.

What smz probably should have done after delivery of the hay is to have a third-party inspection of the hay, to support his claim of inferior goods. He could probably still do that. And smz should have documentation of some sort to demonstrate his attempt(s) to contact the seller and return the inferior hay. In the meantime, he should be taking reasonable care to preserve the hay while it is in his possession.

A review by an attorney of the contract that was entered into by smz and the hay-seller would be wise. I DO hope it was a written contract.

 

[smz]

Yes, we have contacted the seller twice about returning the hay and has refused to let us return it. There was no contract...which normally is not when buying small amounts of hay (50 bales). The amount we stopped payment on was $350.00. Have bought hay for years and most hay sellers are reputable and if it is bad they will take it back. This is the first time we bought from him so we did not know. There is always a shortage on hay in the spring of the year till hay cutting season that is why ending up buying from a different hay man. Yes, the hay is in a safe dry place...we have a very nice barn that it is stored in. The hay also had animal feces on the hay (raccoon or opossum) on it which we did not realize until we got home and started unloading it.

 

[TigerD]

And the best part of this thread: quincy's back!

Long time no see mate.

DC

 

[quincy]

Your options are pretty much what justalayman outlined for you in his first post, smz, although I would not worry about the criminal "theft by check" information he provided.

You stopped payment on the check not because you intended to defraud the seller out of his hay. The inferior hay was not what you agreed to purchase. And you tried to return it to the seller.

You can attempt once again to return the hay to the seller and hope that the seller will accept its return, thereby settling the dispute, or if any of the hay is usable, you could try to negotiate with the hay-seller a lower price, to reflect the condition of the hay, thereby settling the dispute.

Or you can wait to see if the hay-seller takes you to court over the $350 he claims you owe him for the hay. If the hay-seller does decide to take you to court, you should be prepared with, as JetX suggested, a copy of your bank statement showing that you had the funds to cover the costs of the hay prior to stopping payment on the check, and you would also be wise to have a third-party inspection, in writing, describing the condition of the hay. In addition, you should have some proof of your contact with the seller after delivery, to demonstrate you tried to return the defective hay.

Or, if you wish to avoid all threat of a court action, you can pay the hay-seller the $350, keep the inferior hay, and chalk the whole mess up to a lesson learned.

Because the cost of hiring an attorney to review the matter could meet or exceed the $350 involved, I suggest you look for advice from a free legal aid clinic in your area. An attorney there should be able to review all of the facts and give you additional advice and direction.

Good luck.



Hi, DC.

 

[smz]

Thank you Quincy for your advice and opinion. I did contact the hay seller and try to get him to take a lesser price so we could just chalk it up as a loss and try to sell it as cattle hay but he would not budge on that either. He is a older gentleman and quite obviously very stubborn and thinks he can sell cattle hay as horse hay for horse hay price. I am assuming no one has gone up against him before. My husband spoke with a couple of the feedstores near by and they know him well and the one feedstore said, that he had tried to sell the hay to them and they did not want it because they knew it was not good and thought that it was two years old. I think he normally has decent hay but I think he thought he would try to make a quick buck of off the bottom of the barrel hay. Anyway, my husband is going to contact the Henderson County Attorney Hot Check Division tomorrow to let them know that it was not a Hot check. Don't they check that out first before sending out notices? or better yet (make him do the work) have the hay seller show proof that the check bounced and not stop payment on before they would send this out to us? We have never had this happen before so just trying to find out how this works. Thanks so much for your feedback...you guys are great.

 

[justalayman]

Anyway, my husband is going to contact the Henderson County Attorney Hot Check Division tomorrow to let them know that it was not a Hot check. Don't they check that out first before sending out notices?

who said it was a hot check? The hay guy may not know the diff between a stopped payment or returned due to insufficient funds. Maybe he doesn't care because basically you gave him a check that he cannot cash. Same outcome for him at that point. The DA will look at the facts and determine what crime, if any, is charged. If you will read the law I quoted, stopping payment on a check and not making good on the check is what is as issue.

as it stands:

You struck a bargain with the guy to buy hay. You stopped payment on your check. You have the hay, he has no money. He does not have to accept a lesser price; he does not have to accept the return of the hay. He can demand you pay for the hay.

The act of stopping payment on a check in the situation you are is a criminal act. Whether the DA would go that far is up to the DA.

So, your remedy at this point is to pay the guy the money and if you believe you were shafted, then sue the guy. You have no right to not pay the guy.

If you do not pay the guy, he has a right to sue you but I can assure you, if I were in his shoes, I would be beating on the DA's door to file criminal charges against you as well.

the fact you failed to inspect the hay is on you. Unless he gave a specific warranty for some aspect of the hay, you bought hay and you got hay.

 

[quincy]

smz has every right not to pay the hay-seller, justalayman. The hay-seller did not provide the hay that smz contracted for. smz has the legal right to reject the goods after inspection, if after inspection he discovers that what was delivered was not what he had agreed to purchase.

This is no different than, say, you agreeing to purchase from an online retailer a green sweater and having it delivered to your house. After delivery and upon inspection, you discover that the sweater delivered to you is a blue sweater and not the green sweater you agreed to purchase. You do NOT have to pay for the blue sweater and then sue the retailer.

You have to take reasonable care of the green sweater while it is in your possession, notify the retailer that the wrong sweater was delivered, and then return the sweater. If you paid in advance, you can have the money refunded, stop payment on any check or charge, or have any charges reversed on your credit card. You have not committed a crime by not paying for something you never agreed to pay for. You have not defrauded the retailer. It is not theft.

smz took possession of hay that was discovered, after inspection, to be a lesser quality hay than he had agreed to purchase. If the hay was not what he agreed to purchase, he does not have to pay for the inferior hay and then sue the hay-seller.

A buyer's obligation is to notify the seller within a reasonable amount of time after delivery and inspection that the goods are not as promised and for that reason the goods are rejected. smz did that.

In addition to notification to the seller, a buyer has a duty to return the goods or hold the goods with reasonable care for a time sufficient to permit the seller to retrieve the goods. smz has tried to return the goods on two occasions and is now holding the goods using reasonable care to preserve the hay in the same condition it was in when delivered.

The buyer has no further obligation to the seller. smz has not taken ownership of the hay. The hay belongs to the seller and the seller can retrieve the hay or have smz return it to him. smz does not have an obligation to pay for something he did not agree to purchase. He did not agree to purchase inferior "cattle" hay for his horses.

The breach of contract came when the hay-seller failed to live up to his part of the agreement and deliver good condition horse hay. The breach did NOT come when smz refused to pay for the hay. smz never agreed to purchase inferior hay.

I think you are wise, smz, to contact the county tomorrow. I would also try to locate an attorney in your area to assist you with this matter.

Good luck.

 

[justalayman]

quincy;2561262]smz has every right not to pay the hay-seller, justalayman. The hay-seller did not provide the hay that smz contracted for.

Really? Where does it make that claim in this thread?

smz has the legal right to reject the goods after inspection, if after inspection he discovers that what was delivered was not what he had agreed to purchase.

yet all we have is the OP's claim that it was "bad hay". We have none of the negotiations prior to the sale. For all we know, the hay seller could have told the buyer it was questionable quality or he let the buyer inspect before delivery. We do not have that information so as it stands, OP is making one claim, seller is making another. That in itself does not give the OP the right to reject the hay.

This is no different than, say, you agreeing to purchase from an online retailer a green sweater and having it delivered to your house. After delivery and upon inspection, you discover that the sweater delivered to you is a blue sweater and not the green sweater you agreed to purchase. You do NOT have to pay for the blue sweater and then sue the retailer.

I agree but as I said, we have nothing to support the hay received is not what the seller said it was. If the hay was not misrepresented, the buyer is at a real loss to make a claim that it was "bad hay" after the purchase.

You have to take reasonable care of the green sweater while it is in your possession, notify the retailer that the wrong sweater was delivered, and then return the sweater. If you paid in advance, you can have the money refunded, stop payment on any check or charge, or have any charges reversed on your credit card. You have not committed a crime by not paying for something you never agreed to pay for. You have not defrauded the retailer. It is not theft.

and what is the buyers claim of misrepresentation by the seller?????? There has been no claim of misrepresentation. Not one word.

smz took possession of hay that was discovered, after inspection, to be a lesser quality hay than he had agreed to purchase

that is your assumption and actually not important. If the seller made no material misrepresentations, the buyer has no right to claim inferior quality after the purchase as long as the hay was suitable for the purpose it was sold for. So, unless the hay is absolutely unusable for the purpose the seller sold it for, buyer does not have a claim based on what has been presented here.

If the hay was not what he agreed to purchase, he does not have to pay for the inferior hay and then sue the hay-seller.

and again, we have no idea if there was any representations made that were incorrect or misleading. You are assuming facts not presented.

A buyer's obligation is to notify the seller within a reasonable amount of time after delivery and inspection that the goods are not as promised and for that reason the goods are rejected. smz did that.

again, we have nothing that would lead one to believe the hay was not as promised. again, you are assuming facts not presented.

In addition to notification to the seller, a buyer has a duty to return the goods or hold the goods with reasonable care for a time sufficient to permit the seller to retrieve the goods. smz has tried to return the goods on two occasions and is now holding the goods using reasonable care to preserve the hay in the same condition it was in when delivered.

unless the seller misrepresented the hay, the seller has no requirement to rescind the sale.

The buyer has no further obligation to the seller. smz has not taken ownership of the hay. The hay belongs to the seller and the seller can retrieve the hay or have smz return it to him. smz does not have an obligation to pay for something he did not agree to purchase. He did not agree to purchase inferior "cattle" hay for his horses.

again, you are assuming facts not presented here. We have no idea what the seller represented the hay to be.

The breach of contract came when the hay-seller failed to live up to his part of the agreement and deliver good condition horse hay

.and again, you are assuming facts not presented. We have no idea what the seller said about the hay.

The breach did NOT come when smz refused to pay for the hay. smz never agreed to purchase inferior hay.

and again, fact not present.

I think you are wise, smz, to contact the county tomorrow. I would also try to locate an attorney in your area to assist you with this matter.

most definitely and depending on what the seller actually represented the hay to be, a criminal attorney might be a good step as well.

this is all the OP said concerning the bargain for the hay:

I would like to know what my rights are for stopping payment on a check to a man that sold us bad coastal bermuda hay for our horses.

no claim of quality by the seller made as far as we know. Know claim of age. No claim of anything. All we have is the OP stating it is bad hay. Maybe the seller said; Hey, I've got some hay over in the field. Don't know how good it is and due to that, I'll give you a deal on it. Unless the buyer inspected it prior to consummating the sale, it was an "as is" sale. We have nothing to support this possibility, not any other possibility. All we have is the OP claiming it is bad hay. Even if it is not top quality hay, unless the seller represented it as top quality hay and it is usable for the purpose, OP is SOL.


Sorry Quincy, on this one you are simply taking the OP's point with actually no facts to support there is actually any problem other than the claim of "bad hay". That does not give justification to stop payment on a check. While I will not dismiss the possibility the hay was totally unusable for the purpose and if so, the OP's actions would be acceptable, we have nothing to support that.

 

[quincy]

Justalayman says: "Especially since the seller says there is nothing wrong with the feed, the OP has effectively stolen the feed."

Uh, where exactly does it say that the seller says there is nothing wrong with the feed??? Who is making assumptions here, justalayman?

smz said in the first post of this thread that "a man sold us bad coastal bermuda hay" and we "stopped payment for him being dishonest and misleading on the hay." smz also stated that when unloading the hay, he saw animal feces on it. In addition, smz says that the hay-seller tried to sell the hay to a feedstore and the feedstore thought it was bad and two years old.

The stop payment on the check was only after smz contacted the seller about the bad hay and its return. The stop payment was not to defraud the hay-seller or to steal the hay. smz does not want the inferior hay. He wants to return it.

Yes, I am making some assumptions, justalayman. I am assuming that smz is telling the truth. And, without a written contract that outlines the terms of the hay-seller's and smz's agreement, then smz's "truth" is about as good as it gets.

Finally, if a poster comes here and tells lies when looking for advice on a legal matter, the legal advice given may not be especially helpful to that poster.