stop payment check

[silentrock]

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

My ex roomate decided to break the lease and move to another state. So I have to take over the whole lease. As a penalty for him moving out early he writes me a check for $1300. When I tried to deposit the check I found out he put a stop payment on it.

My question is do I have enought evidence to sue him in small claim court? What I have is the check which says "penalty for moving out early", and an agreement we both signed at the leasing office on the day the check was written that says I agree to release him from our lease and from that day I will be the only one on the lease. Since he now moves to another state, does the Delaware justice of peace court have personal jurisdiction over him?

Thank you in advance!

 

[swalsh411]

I would first tell your roommate to pay you within 48 hours or you will report the crime to the police. What he did was not legal and he could potentially go to jail.

 

[tranquility]

I don't know, maybe. You have released him from his lease responsibilities to you. I assume the landlord through the leasing office has ratified the agreement so he is off the hook to them as well.

Your argument would be that your agreement for signing the release was predicated on the payment of the penalty. That is, you agreed to let him out of the lease and assume responsibilities in return for the payment.

It would have been better to have that all in writing rather than having to make some assumptions. I am uncertain as to if you have enough writing to escape the statute of frauds on the release for money agreement.

Delaware would have jurisdiction. But, even if you get a judgment, you'll have to sue in his resident state to domesticate and have any hope of collecting. (Not that you will collect, just to have a hope.)

 

[tranquility]

I would first tell your roommate to pay you within 48 hours or you will report the crime to the police. What he did was not legal and he could potentially go to jail.

I disagree. Not only might that be extortion, it does not follow the requirements of the law (which may not apply anyway):

Search DEL CODE § 900 : Delaware Code - Section 900: ISSUING A BAD CHECK; CLASS A MISDEMEANOR; CLASS G FELONY
(a) A person is guilty of issuing a bad check when the person issues or passes a check knowing that it will not be honored by the drawee. For the purpose of this section, as well as in any prosecution for theft committed by means of a bad check, it is prima facie evidence of knowledge that the check (other than a postdated check) would not be honored that:

(1) The issuer had no account with the drawee at the time the check was issued; or

(2) Payment was refused by the drawee upon presentation because the issuer had insufficient funds or credit, and the issuer failed to make good within 10 days after receiving notice of that refusal.

This is a stop payment check so I don't think that section applies. And the "theft" portion would not apply as it does not seem any goods or services have been taken.

 

[silentrock]

I don't know, maybe. You have released him from his lease responsibilities to you. I assume the landlord through the leasing office has ratified the agreement so he is off the hook to them as well.

Your argument would be that your agreement for signing the release was predicated on the payment of the penalty. That is, you agreed to let him out of the lease and assume responsibilities in return for the payment.

It would have been better to have that all in writing rather than having to make some assumptions. I am uncertain as to if you have enough writing to escape the statute of frauds on the release for money agreement.

Unfortunately I do not have the agreement in writing. Now like you said it`s all assumption. And I do not know whether the judge will accept that.

Delaware would have jurisdiction. But, even if you get a judgment, you'll have to sue in his resident state to domesticate and have any hope of collecting. (Not that you will collect, just to have a hope.)

He has moved to the west coast, it does not make sense economically for me to go all the way just for the $1300, so am I out of luck here? I could care less about the money but it just makes me mad that he can cheat me this way and get away with it.

 

[tranquility]

Unfortunately I do not have the agreement in writing. Now like you said it`s all assumption. And I do not know whether the judge will accept that.



He has moved to the west coast, it does not make sense economically for me to go all the way just for the $1300, so am I out of luck here? I could care less about the money but it just makes me mad that he can cheat me this way and get away with it.

You would be suing on a breach of contract. You would have to prove up the contract. You might have enough, but there is an additional twist in this of and concerns the land (the lease), so the Statute of Frauds might be implicated requiring a signed writing by the person it is to be enforced against. You might have that too. That's why I said "maybe".

But, you still have to collect. If he's on the west coast, I assume he has no stuff in Delaware. Nothing to garnish, nothing to levy and nothing you can seize in a place a Delaware small claims court has power over. You would have to take your judgment (if won) to a place where it has power over some of the defendant's property. That is called "domestication" of the judgment. THEN, you can get court orders to garnish wages and the like.

I agree, it does not make sense economically to go through all this because of the uncertainties involved.

 

[silentrock]

You would be suing on a breach of contract. You would have to prove up the contract. You might have enough, but there is an additional twist in this of and concerns the land (the lease), so the Statute of Frauds might be implicated requiring a signed writing by the person it is to be enforced against. You might have that too. That's why I said "maybe".

Not sure if I understand correctly, but are you saying in order to win the case I should have something in writing by him saying that he is paying me to be removed from the lease? Unfortunatly all I have is the check (I assume the note on the check "penalty for moving early" will not be useful? ) and the agreement to release him from lease, that agreement did not mention that he is going to pay me.

Since he is on the west coast now, if Delware small claim court does have jurisdiction over him, it`s very unlikely that he is going to show up in court, then will I just win the case by default judgement?

But, you still have to collect. If he's on the west coast, I assume he has no stuff in Delaware. Nothing to garnish, nothing to levy and nothing you can seize in a place a Delaware small claims court has power over. You would have to take your judgment (if won) to a place where it has power over some of the defendant's property. That is called "domestication" of the judgment. THEN, you can get court orders to garnish wages and the like.

His current employer has operation in Delaware, does that make things easier?

Again thank you so much for all your reply, really appreciate it.

 

[tranquility]

Since the events happened when he was resident of Delaware, happened in Delaware and concerned property located in Delaware, for a number of reasons, Delaware has jurisdiction.

I agree it would probably be a default judgment--after he is properly served.

As to the garnishment, maybe DebtCollector` can answer better than I. The rules seem to be at:
http://courts.delaware.gov/legal%20memoranda/download.aspx?ID=2968

 

[latigo]

I would first tell your roommate to pay you within 48 hours or you will report the crime to the police. What he did was not legal and he could potentially go to jail.

Pardon me for asking, but where in Delaware's Criminal Code does it state that stopping payment on a check is a crime?

Inasmuch as the check was not tendered in payment of goods or services received how can the OP rightfully claim that he was criminally defrauded.

A check is nothing other than a promise to pay.

Moreover, there is nothing in the OP’s statement that would serve as consideration for the promise to pay the $1300! The OP was in no position to unilaterally “release him from our lease”, simply because the OP is a lessee and not the lessor/owner!

And if the lessor/owner were to have released one tenant from the lease it would automatically have released the other.

So, (1) the maker of the check has not committed a crime and (2) he is not legally obligated to pay the OP $1300.

If you disagree with (1), cite the applicable Delaware criminal statute.

If you dispute (2), then explain why the lessor/owner would be precluded from enforcing the terms of lease against both or either of the tenant. Or how two co-tenants could enter into any agreement independently of the lessor (“we signed” ) that would affect the lessor’s rights under the lease.

In sum, explain what benefit the maker of the check received as consideration to support his promise to pay.

 

[latigo]

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

My ex roomate decided to break the lease and move to another state. So I have to take over the whole lease. As a penalty for him moving out early he writes me a check for $1300. When I tried to deposit the check I found out he put a stop payment on it.

My question is do I have enought evidence to sue him in small claim court? What I have is the check which says "penalty for moving out early", and an agreement we both signed at the leasing office on the day the check was written that says I agree to release him from our lease and from that day I will be the only one on the lease. Since he now moves to another state, does the Delaware justice of peace court have personal jurisdiction over him?

Thank you in advance!

The Delaware court may have personal jurisdiction under the state's Long Arm Statute.

But you my friend have no recognizable cause of action to recover the face value of the check! Not unless you can convince the court that the maker of the check received adequate consideration in exchange. And to date you have given us nothing to indicate that it was issued for fair value.

 

[silentrock]

The Delaware court may have personal jurisdiction under the state's Long Arm Statute.

But you my friend have no recognizable cause of action to recover the face value of the check! Not unless you can convince the court that the maker of the check received adequate consideration in exchange. And to date you have given us nothing to indicate that it was issued for fair value.

Well if he did not give me the check I would not have agreed to release him from our lease. In that case he would still be responsible for his half of rent.

 

[latigo]

Well if he did not give me the check I would not have agreed to release him from our lease. In that case he would still be responsible for his half of rent.

You are missing the point. You had no authority to release him from the lease. No more that you could release yourself from the lease.

Consequently he received nothing of value in exchange for his check as he is still responsible on the lease.

 

[silentrock]

You are missing the point. You had no authority to release him from the lease. No more that you could release yourself from the lease.

Consequently he received nothing of value in exchange for his check as he is still responsible on the lease.

He is not responsible on the lease any more, we get together with the landlord and I agreed to have him removed from the release. I am now the only one responsible for the rent, in return he agreed to pay me for 3 additional months, instead of the 7 months remaining on the lease. (But unfortunately the landlord does not want to get involved in our agreement, so in the written agreement it only says I agree to the landlord that he would be released from our lease, it did not mention he need to pay me, which is only our oral agreement)
Hope that clear things a little bit.

 

[latigo]

He is not responsible on the lease any more, we get together with the landlord and I agreed to have him removed from the release. I am now the only one responsible for the rent, in return he agreed to pay me for 3 additional months, instead of the 7 months remaining on the lease. (But unfortunately the landlord does not want to get involved in our agreement, so in the written agreement it only says I agree to the landlord that he would be released from our lease, it did not mention he need to pay me, which is only our oral agreement)
Hope that clear things a little bit.

The “landlord doesn’t want to get involved in our agreement” and does not need to get involved in “our agreement” simply, because the landlord IS NOT PART OF YOUR S0-CALLED AGREEMENT! An agreement that is totally meaningless.

And since the landlord was not a party to “our agreement”, neither named or signatory, he is in no way effected by it. Meaning there is nothing to prevent the landlord from legally holding the other tenant to the terms of the lease! *

____________________

But since you are so convinced, I’ll tell you what to do.

1. Once you have figured out how you can persuade the court to invoke Delaware’s “Long Arm Statute” and assume personal jurisdiction over your nonresident defendant, go ahead and file your lawsuit.

2. Then read and study the Delaware Rules of Civil Procedure to learn how you can effect service of process upon the nonresident defendant.

3. If and when you ever get to trial, produce the $1300 check to support your claim explaining why the drawee bank will not honor it.

4. Then anticipate the following conversation:

Judge: What was the purpose of the check?

OP: “Because I let him off of the lease to the apartment we jointly leased.”

Judge: “Then why wasn’t the check made payable to the landlord/owner?

OP: “Because the landlord was not part of “our agreement”.

Judge: “Claim denied. Next Case.”
______________


[*] There is a means whereby you could have accomplished your purpose (briefly: an assumption plus an indemnity undertaking on your part - and the LL's participation) but your failed effort doesn’t even come close. Sorry.

 

[silentrock]

The “landlord doesn’t want to get involved in our agreement” and does not need to get involved in “our agreement” simply, because the landlord IS NOT PART OF YOUR S0-CALLED AGREEMENT! An agreement that is totally meaningless.

And since the landlord was not a party to “our agreement”, neither named or signatory, he is in no way effected by it. Meaning there is nothing to prevent the landlord from legally holding the other tenant to the terms of the lease! *

To make it clear, the landlord made me sign a letter saying I agree to release my roomate from our lease. The landlord, my roomate and myself all signed on it. My roomate is completely off the lease from the landlord`s perspective the moment I signed that letter.

What the landlord does not get involved, is my roomate agreed to pay me for 3 additional months for me to sign on the letter. Otherwise he will still be responsible for his half of the rent for the remaining 7 months. Now for this agreement, I have nothing in writing to prove, other than the check.

Also why should the check be written to the landlord? In that case the check needs to be for all the remaining 7 months, not just the $1300.

Back to my first question, in this case, does Delaware`s long arm statue apply and have personal jurisdiction over him?

Thank you!