Bad Check & Treble Damages

[theoakdalen]

What is the name of your state? CA

I found out 2 days ago that my wife wrote 4 bad checks to 3 different grocery stores totalling $496.46. A collection office ran by an attorney is handling this matter. They are attempting to recover not only the face value of each check, but also treble damages, interest, and mailing fees totalling $1953.86.

I wrote a letter to the attorney offering $683.85 to completely settle this matter. I hand delivered the letter, but an office worker refused to initial &/or sign my copy to evidence receipt of my letter, which I thought was silly since doing so didn't mean acceptance of my offer, just acknowledgement of receipt of my letter. After reading my letter addressed to the attorney, she told me she was not willing to acknowledge its receipt. She kept my original letter and said she would forward to the person handling the account. I asked her name and made note of the incidence on my copy. Immediately, I went to the post office and sent my copy of the letter certified (I resigned my copy so it would have an original signature and wrote the certified mail reference number at the top).

The person handling the case has threatened us with Superior Court action (neither my wife nor I have been served by a sheriff, as the person handling the case indicated should be happening soon). If they refuse my $683.85 offer, how will this play in Superior Court? Although my wife wrote the checks, I am being told I am equally responsible since we live in CA and it was a joint checking account. My offer covers the face value of all the checks and gives $214.39 to the attorney, but is this reasonable?

Any help would be greatly appreciated.

Here's what I wrote in my letter to the attorney dated 04/30/03:

I am in receipt of the itemization of charges your office provided me on 04/29/03 in the amount of $1953.86. After discussing this matter with my wife and taking into consideration the current state of our financial affairs, I am offering you $683.85 made payable in casher's check or money order to completely settle this account. Amy caught me off guard yesterday with her warnings and threats. I was not prepared to make an offer that would not further jeopardize our financial situation. With this said, I appreciate your time and consideration in accepting my above offer. I can be reached at XXX-XXXX if you have any questions.

Sincerely,

 

[JETX]

In California:
"Claim for Statutory Penalty
Under California's Bad Check Law, a person who has written a check to another person or business can be required to pay the amount of the check and either a statutory service charge or a statutory penalty if the check is returned by the bank due to insufficient funds. The person who wrote the check is called the "drawer" and the person or business who accepted the check is called the "payee."

More particularly, the Bad Check Law states that the drawer must pay to the payee the following amounts:
(a) the face amount of the check, plus a statutory service charge; or, if the drawer does not pay this total in full, then--
(b) upon the payee's proper written demand for payment, the face amount of the check, plus a statutory service charge, plus the costs to mail the demand for payment; or, if the drawer does not pay this total in full within 30 days, then --
(c) if the payee has made a proper written demand for payment, and the drawer has not paid to the payee, within 30 days of the demand, the total at (b), then --
(i) the face amount of the check, plus
(ii) a statutory penalty of three times the face amount of the check, but not less than $100 nor more than $1,500."

For more on this subject (and where I extracted the above), go to:
http://www.dca.ca.gov/legal/k-5.html

also:
http://consumer-affairs.co.la.ca.us/SmallClaims/Frame.htm
http://www.checkmatic.com/ca.html

 

[theoakdalen]

JETX, thank you for your reply. Can you answer whether or not I too am equally punishable for my wife's actions in writing the 4 checks that were returned NSF? The collector is stating that I am equally punishable since I am married and it's a joint account. Is this true? I would think that her signature on the check, not mine, assigns who is punishable. This aside, is there no way to negotiate out of treble damages of 3 times the face value if it's been more than 30 days?

For the record, I have never been contacted directly by this collection agency. They have documented 3 phone conversations with my wife, none with me. They state they have mailed our address numerous times, but I've never seen their statement. I called their office after not being able to write a check myself (after being given a little piece of paper at the grocery store...I tried to write a $12 check). This is how I learned of the entire problem. I've now known since 04/29/03. Do they have an obligation to try to get in contact with me directly since they are throwing me into this mess too? They state they've even sent certified mail that my wife signed for, but I've never seen it. Of course I expect that my wife kept it from me, but they haven't dealt with me...that is until 04/29/03.

 

[JETX]

"The collector is stating that I am equally punishable since I am married and it's a joint account. Is this true?"
*** Yes, and no. There are really two separate issues here. One is civil liability, the other being criminal. So, lets look at them from that perspective:
Criminal: Of course, since you were (apparently) not a party to this action, you would not be criminally liable (in the event that charges were brought).
Civil: Again, you are not literally liable, but effectively you are. California is a community property/debt state, which simply means any assets of the spouse can be seized in enforcing a debt, even those co-owned by the other spouse. This means that, if the claimant gets a judgment against your wife, they can seize ANY community owned non-exempt assets. This includes bank funds, co-owned real and personal property, etc. So, with that in mind, your assets are at just as much risk as hers.... or your joint assets.

"I would think that her signature on the check, not mine, assigns who is punishable."
*** See above.

"This aside, is there no way to negotiate out of treble damages of 3 times the face value if it's been more than 30 days?"
*** Of course you can try to negotiate any settlement you can make, but the claimant is under no obligation to accept less than what the statute provides.