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Does Cashing A Unilateral Settlement Check Jeopardize My Claim?

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Toad Hall

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

We are involved in a dispute with our remodeling contractor. We think that he owes us considerably more to fix his defective work than he is willing to pay. He wants to settle the dispute by sending us a check for about 10% of what we think is equitable. If we cash his check will this compromise a claim against him in small claims court? I imagine that he will print something on the check to the effect that by signing the check we relinquish any further claims against him. I would like to get some cash back now, just in case he wins in small claims court later by some technicality.

Thanks!
 


TigerD

Senior Member
If you accept a settlement from him, why would you think you could then pursue the original claim, which you had just settled?

DC
 

Toad Hall

Junior Member
We don't accept his settlement. The question was whether cashing his check constitutes acceptance of his proposed settlement.
After a search, I find that the principle of Accord and Satisfaction means that we would be accepting his settlement by cashing a check with "full payment" verbiage on it.
 

Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? Oregon

We are involved in a dispute with our remodeling contractor. We think that he owes us considerably more to fix his defective work than he is willing to pay. He wants to settle the dispute by sending us a check for about 10% of what we think is equitable. If we cash his check will this compromise a claim against him in small claims court? I imagine that he will print something on the check to the effect that by signing the check we relinquish any further claims against him. I would like to get some cash back now, just in case he wins in small claims court later by some technicality.

Thanks!
If could jeopardize the claim. Have you filed suit already?
 

Toad Hall

Junior Member
For some reason I can't reply with quotes.
No, we haven't filed suit yet. We intend to file a complaint with the State construction contractors board.
If it finds that our complaint has merit, it will send out an investigator to mediate between the contractor and us.
If there is no agreement to the mediation, the investigator gives his/her findings to an analyst. That person
writes a report. The board can't compel the contractor to comply with its findings. We would then have to go to small claims court, or file a civil case in district court to obtain a judgement. If we do obtain a judgement the state board will get payment from the contractor's surety.

In our judicial district in Oregon, small claims are limited to less than $10K. Mediation is mandatory, but if it fails, we would have a hearing before a judge. If we file a civil case for less than $50K, it goes to mandatory binding arbitration. There would be no trial by judge or jury. Both parties split the cost of arbitration, which can be several
hundred dollars per hour. I believe that there's no requirement that the arbitrator's decision be based on any legal principles or that the arbitrator document the decision process. I fear that an arbitrator will attempt to please both parties regardless of the merits of our claims.

We are obtaining estimates to complete and correct the contractor's work. It's possible that they will total more than $10K. Reading the small claims rules, it looks like we would be able to file several small claims court cases. That's because the contract has separate work items, such as flooring and cabinets, and each item has a separate lump sum price.
 

TigerD

Senior Member
Reading the small claims rules, it looks like we would be able to file several small claims court cases. That's because the contract has separate work items, such as flooring and cabinets, and each item has a separate lump sum price.
You should probably talk to an attorney. Especially about the idea to file multiple suits. That is generally not allowed.

DC
 

Zigner

Senior Member, Non-Attorney
That's because the contract has separate work items, such as flooring and cabinets, and each item has a separate lump sum price.
You would be suing based upon a breach of the contract. As such, all your claims would need to be included in one suit.
 

Toad Hall

Junior Member
Here's the statute:

46.425 Commencement of actions; contents of claim. (1) An action in the small claims department shall be commenced by the plaintiff’s filing with the clerk of the court a verified claim in the form prescribed by the court.
.....

(3) Except in actions arising under ORS chapter 90, the plaintiff must include in a claim all amounts claimed from the defendant arising out of a single transaction or occurrence. Any plaintiff alleging damages on a transaction requiring installment payments need only claim the installment payments due and owing as of the date of filing of the claim, and need not accelerate the remaining payments. The plaintiff may include in a claim all amounts claimed from a defendant on more than one transaction or occurrence if the total amount of the claim does not exceed $10,000.

My layman interpretation is that the separate pay items in the contract would be "single transactions or occurrences". Yes, I agree it would be wise to ask an attorney about filing multiple small claims.
 

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