Question about bounced ACHs

[isis297]

NYS

I am a property manager. We have a tenant who paid with ACH withdrawals he did on the website. They came back returned. He owed $350 on one unit and owes $1400 on another. It was 4 months of payments. Unfortunately, ACH transfers were a new thing for the company so it took a bit to find out they were all returned.

If he were still a tenant, we would be moving forward with the auction process, but he isn't anymore. I advised him this was like bouncing a check and was prosecutable. He said he would pay everything in full this month. I confirmed that with him. He changed the date a couple of times. I said OK, but 2/26 is the absolute deadline. Now he's saying he can't afford it and wants a payment agreement.

One person told me to write up the payment agreement and tell him if one payment is missed, I'm moving forward with the protest and police report. Another told me if I accept a payment agreement then the ACH returns hold no weight anymore and I can't go after him if he doesn't pay. She had told me we need to at minimum have him pay per ACH withdrawal returned so that if he stops paying, the remaining withdrawals are prosecutable, but she is telling me of we spell out "payment agreement", I will be SOL when he doesn't pay. I agree with her he is far from trustworthy and I fully expect him to default again.

I don't want to try to figure out which one of these non-law professionals is correct. Can you offer me guidance please?

Thank you!!

I would appreciate your advice.

 

[Zigner]

The guy already HAD a "payment agreement" with you. How did that turn out?

Why haven't you instituted legal proceedings yet?
The police aren't likely to get involved. They will say this is a civil matter.

 

[Taxing Matters]

NYS

One person told me to write up the payment agreement and tell him if one payment is missed, I'm moving forward with the protest and police report. Another told me if I accept a payment agreement then the ACH returns hold no weight anymore and I can't go after him if he doesn't pay.

Don't rely on those kinds of comments you get from people are not lawyers who practice landlord tenant law in your state. Contact a landlord business association in your state or an attorney who represents landlords in eviction actions. You don't want to mess this up, and it may be that neither of the comments you heard is correct. Note that in general it is illegal to threaten criminal prosecution to settle a civil dispute, though typically states will allow that if the civil action directly relates to the crime you are complaining about. You need to know what leeway you have to make those kinds of threats, among other things.

 

[isis297]

I don't know if it matters, but this is storage units, not apartments or houses.

 

[Zigner]

I don't know if it matters, but this is storage units, not apartments or houses.

That's what I inferred from your original post.

 

[isis297]

Civil even though they are bounced achs?

 

[Zigner]

Civil even though they are bounced achs?

Yep.
They are not bounced "checks."

 

[quincy]

Civil even though they are bounced achs?

ACH stands for Automated Clearing House. It is used for fund transfers.

 

[Taxing Matters]

I don't know if it matters, but this is storage units, not apartments or houses.

It does matter, it should be easier to get a court order for removal of his stuff than an eviction. You may want to ask a lawyer in your state if state law provides any self-help remedies you may use to get it cleared out that don't require going to court.