posted on May 29, 2001 07:35:00 PM
Yes, everyone here seems quite friendly by giving advice, however I hope the OP gets professional advice if these weird buyers make more trouble.
I don't think any particular phrasing would work on a check. The IRS and the local utility companies would laugh (and sue) me out of town if I attempted to pay them less than my account says with a "Paid In Full" phrase on the checks.
A divorced Boise man recently discovered a clever, though unscrupulous, way of beating his ex-wife out of the alimony he owed her—and the courts let him get away with it.
John Eugene Holley sent his ex-wife a $750 check in 1993 and wrote on the back “paid in full” plus interest and late charges. His ex, Joan F. Holley, cashed the check, but scratched out the “paid in full” designation on it. She then sought a writ of execution for the $336,469 in outstanding alimony and
interest he actually owed. Twin Falls County Court, however, ruled that “when a creditor cashes a tendered check with the knowledge of the other person’s intent that it be payment in full, he is then bound to the agreement and cannot later turn around and sue for the remaining balance due under the former dispute.” Dissenting, Judge Darrel Perry pointed out that the ruling could allow all those delinquent in their alimony payments to simply write “paid in full” on any one of their checks and thus be relieved of all future payments.
You have just purchased a new printing press for your company but it cannot reproduce the number of pages at the rate as warranted.
Rather, the press performs at 80% of its represented capacity. You wish to keep the press but you do not wish topay the total $20,000 invoiced price. Because the press is defective, you believe the price should be reduced by 20%. How can this price reduction be accomplished?Absence an express agreement, a practical way to accomplish the reduction is to use the “payment-in-full” strategy. Simply issue a check for $16,000. Note on the face of the check in the memo section “payment-in-full”. On the back of the check, type the following language: “Tendered as full payment of a disputed debt. Cashing this check shall constitute an accord and satisfaction.”
If the Seller cashes the check, the claim for the $4,000 balance is extinguished. In other words, there is a compromise. Prior to August 19, 1994, the Seller could attempt to negate the “paid-in-full” strategy by placing on the check, above the Seller’s endorsement: “Accepted under protest, all rights reserved.” After August 19, 1994, the acceptance of a check under protest is insufficient to reserve the claim for the unpaid balance.
The law has changed. Today, accepting and depositing a “payment-in-full” check, including any check sent with a “conspicuous” “accompanying written statement” indicating that it is intended as a complete payment, means that the rest of the debt can no longer be collected. Efforts to make an “explicit reservation” of rights will no longer be effective in the same way they were under prior law.
Because it may not be possible or cost effective for businesses to isolate “payment-in-full” checks immediately upon receipt, the new law offers two ways to avoid (or at least minimize) the dilemma raised by “payment-in-full” checks. Businesses can send their customers and clients a “conspicuous statement” indicating that “payment-in-full” checks or communications about disputed debts must be sent to a designated person, office or place.
This will prevent accidental release of the balance of the debt if the “conspicuous statement” is sent to the customer or client at any time before the “payment-in-full” check is received. In addition, the effect of a “payment-in-full” check can be “undone” by repaying the would-be “payment-in-full” customer or client the amount of the partial payment within 90 days of its receipt.
Although subject to attack, the “paid-in-full” strategy continues to be a viable strategy to compromise a disputed debt. The gambits available to negate this strategy may not be known by the Seller. Thus, the Seller who cashes the “paid-in-full” check could find that the ball game is over before the Seller has a chance to bat.
I don't think any particular phrasing would work on a check. The IRS and the local utility companies would laugh (and sue) me out of town if I attempted to pay them less than my account says with a "Paid In Full" phrase on the checks
Seems to work for others. Maybe we should all try it and see what happens.
posted on May 29, 2001 11:00:30 PM
Yikes!
daleeric
What's been going on here.....?
Do you feel you have adequate documentation to support your good-faith effort to complete this transaction?
If so, please resist becoming or hiring Clarence Darrow for what is a pittance in the legal world...
Your small claims judge (if this goes that far) will likely not be impressed by legal advice you've received here or from a lawyer. He/she will want to hear an honest recount supported by the documents of the transaction.....If you think your buyer will try to impress the judge with his knowledge of the law, I'd suggest trying the exact opposite. Let the judge be impressed by your knowledge of your case and how you've made every reasonable effort to complete this transaction.
Although no judge is perfect, my experience is that most of them are pretty smart cookies and understand people and their motivations pretty well.....in addition to understanding the law.
FWIW, I'd suggest against any fancy language on a refund check....it is entirely possible this strategy could blow up in your face if you end up in court. Making a good-faith refund without conditions, OTOH, signals your desire to end the transaction amicably...
If I was in your place, that's exactly what I would do. If I was rich enough to have a lawyer on retainer, then my strategy might be different....but, alas, I'm not...
posted on May 30, 2001 04:05:10 AMYour small claims judge (if this goes that far) will likely not be impressed by legal advice you've received here or from a lawyer. He/she will want to hear an honest recount supported by the documents of the transaction.....If you think your buyer will try to impress the judge with his knowledge of the law, I'd suggest trying the exact opposite. Let the judge be impressed by your knowledge of your case and how you've made every reasonable effort to complete this transaction.
I hate to admit to this...I have been through quite a few small claims (under $5000) cases myself. Judges want you know your facts and have good documentation. I have never seen a judge impressed by someone that did not know something about how the law pertained to their case. I have seen people slammed by judges that went to court and really had no legal leg to stand on. Wasting a judge's time is not good. There is nothing wrong with getting legal advice or hiring and attorney. If you hire an attorney to represent you, his fees along with court costs can normally be included in the final judgement if you win.
Some of the advice here is very good. If you can work things out with the buyers that would be great. If you can't, don't be afraid to go to court and put on the best case you can afford. You don't need to be reasonable, just legally correct. Most case that I have sat through in small claims court are crazy anyway.
Many states require court appointed mediation before an actual trial date is set. If your state does this you may be able to sit down with these people and work this out face to face.
See if you can get free consultation from several layers. You may pick up some good advice from them.
I have not yet read how these buyers paid....did I miss it?
If it was by any means other than cash or verified funds, I would wait at least 30 days if not 45 before making any refund or adjustment. I have seen cases where banks have sent cleared checks back on what they call a "late return" after the check has cleared. If this buyer paid via credit card or with any online service you, in all probability, will see a chargeback anyway. Don't get caught here.
I don't know what the best solution is at this point. It would seem you will come out the loser even under the best scenerio. Talk about a bad apple!
posted on May 30, 2001 07:35:11 AM
The buyers paid by business check about 30 days ago.
My credit union offers a free consultation, so I think I will telephone them today for the number of a local attorney. My friend, who is a paralegal told me yesterday that writing "cashing accepts as payment in full" acts like a contract. My friend didn't seem to think I could deduct an attorney legally from the amount the buyers issue. According to her, they would have to file the case in Southern Calfornia and it wouldn't be worth it timewise for them. The letter will be very straight forward and to the point. We will just be deducting E-Bay fees and shipping. Nothing else is listed in my terms of sale so I can't deduct restocking or anything to that effect. We would just like to put an end to this transaction and move on. We have inventory just sitting collecting dust and we haven't done a thing with it. This has taken a good portion of our time and almost made us consider quitting the business.
It is a wonderful outlet to have this thread and we greatly appreciate all your suggestions and support. It has meant a lot to us! Thanks again to everyone that contributed. I will let you know what the attorney says and what happens. I will be working on the refund letter today and will send it certified mail with return receipt.
posted on June 12, 2001 08:44:22 PM
Well, the check was sent out and we believe we will receive the buyers reaction shortly. So far, the husband has left two threatening messages on our machine. He is expecting or hoping for a refund in full. I have deducted all E-Bay Fees-listing and end value fees, the first shipping attempt and the second shipping attempt. He demanded that the check be sent Fed Ex so we complied, but deducted that from the check as well. We would have liked to deduct some sort of restocking fee, but didn't.
I put on the check that "cashing accepts refund payment in full." Also that the check will be void in 30 days. They will be given that amount of time to cash the check and after that a stop will be put on it.
So far, he has threatened to drive out to E-Bay and meet with the CEO, Meg and discuss the situation with her. He has threatened to sue us and contact the police for fraud.
This guy really must have been the 5th grade bully. Our telephone number will be changed as of tomorrow. I know he will be on the phone again with his threats. Could you believe that he actually believes E-Bay's Meg would see him?
posted on June 13, 2001 12:12:21 AMSo far, he has threatened to drive out to E-Bay and meet with the CEO, Meg and discuss the situation with her. He has threatened to sue us and contact the police for fraud.
I can't believe this guy would get anywhere with a lawsuit against you. He refused shipment because he is racist, but he sounds nutty enough to try to file a lawsuit.
This guy really must have been the 5th grade bully. Our telephone number will be changed as of tomorrow. I know he will be on the phone again with his threats. Could you believe that he actually believes E-Bay's Meg would see him?
Reality went bye-bye a long time ago for this guy. This would be almost funny if it wasn't so scary. I would be afraid the guy would track me down, but I'm the paranoid type. Have you decided to continue with eBay or has this jerk ruined it for you?
posted on June 13, 2001 07:03:28 AM
We took a break from E-Bay for several weeks, but now we are back selling full force again. My partner laughed when he heard the message, he thinks the husband is just "beating his chest." The husband does seem very ape-like. When it is an internet sale, you never know who you are dealing with.
After he asked for both our social security numbers and insisted, I decided to give him a P.O Box number address to send payment. The post office doesn't give forwarding addresses out anymore, but that doesn't mean that it can't be found out. I even paid Fed Ex with cash and did not use my account number. It can't hurt to be cautious.
I am sure I will hear from them this morning when they receive the refund. I don't believe that he has a leg to stand on with a small claims suit. Refusing delvery is not considered to be a sale in our state and revests ownership of the merchandise back to the seller.
posted on June 13, 2001 09:00:12 AM
At least you were cautious about your address. I would not want this nutcase to know where I lived. If he does decide to try and sue you, wouldn't he get your address from the courts?
posted on June 13, 2001 09:18:54 AM
Perhaps he could get the address in public records. I don't know if he could get the address from court or not. Does anyone know about that?
The person has to be served the lawsuit documents in person. It really can't be done with a PO Box. They can attempt to mail service there by certified letter but the party does not have to sign for it and most people do not, according to a dear friend that is a paralegal. She say that is a bad method of service.
The changed number is presently working with no forwarding number listed. I am sure that will anger him when he finds the number has been changed. Perhaps I will block his e-mail too.
E-Bay does not make a determination regarding his fraud complaint. Their insurer Lloyd's of London will ask for my documentation, such as the Bill of Lading and they will make their judgement in 15 days. I am not worried about that at all; just a bit of a hassle.
As, in most states, one must provide a verifiable street address to purchase a PO box, the sheriff can access the records at the PO to determine a physical address for you.
The only defeat I know to this is to move, leaving no forwarding address and continue to use the PO box...eventually they will catch it but it takes some time.
FWIW, law enforcement knows as much about us as the police in many communist countries knows about its citizens....if a lawsuit over this is on the horizon, I submit you should spend your time preparing your case, which it sounds like you have done in an excellent manner.
Most of these yahoos are just blowing smoke anyway.....but it doesn't hurt to plan for the worst..
posted on June 13, 2001 10:01:33 AM
If you have not already done so, you need to change your contact info with eBay. Should this guy choose to report you for invalid contact info, eBay can suspend you.
I would sign up for a free voicemail account, such as one at onebox.com, which is eBay-legal. Any messages can be checked via the web or by phone, and you can select to have message notification emailed to you.
Same thing with your address--your contact info will not display your street address, but I would still change it to the PO Box with eBay just to be safe.
posted on June 13, 2001 10:19:28 AM
Debbie, that is a great idea, thank you. I will look into that today. The address has been changed to the po box earlier, but I didn't think of the phone number.
posted on June 13, 2001 11:28:47 AM
Hello
Two points
First
Compared to hooking up your VCR, Scanner, Computer, even a large table, what is the big deal about putting up an armoire? My Grandson has done it twice. This customer if he has the brains of a sheep dog could do it in five minutes.
Second
For years I have looked for something that would cost near nothing to procure, would be interesting, informative and should sell and pack well. I think I found it……. I'll call it “Training Thread”.
Bye all
Dave
posted on June 13, 2001 02:46:15 PM
We signed up for the free voicemail and changed the number with E-Bay, thanks again Debbie.
The husband telephoned my partners cell phone and left another message. Ranting and raving as usual. He stated he is now going to sue us in civil court, not small claims. He has a lifelong attorney friend who will represent him. He mentioned again that he was going to see E-Bay's Meg. It will be amazing if he gets past security. Lloyd's of London's ruling may knock the wind out of his sails, hopefully.
How could a woman choose a man like this as a mate? I think I would rather be a nun.
posted on June 13, 2001 04:46:51 PM
Glad to be a small help
It is easier than worrying about someone bent on making your life miserable harassing you via the telephone.
Sorry you had to deal with someone so unreasonable. It sounds like the guy is a bit off his rocker if he thinks a judge will seriously entertain a lawsuit like that.
posted on June 13, 2001 07:51:29 PM
The amount that was taken out of his total check was $645.00 for two deliveries and returns, all E-Bay fees, and mailings. This is a very large french armoire.
I think if he tries to sue in civil court, it will cost perhaps triple that with court cost and attorney fees. I don't think it is worth it to pursue the matter further. He said on the voice mail message that he has "plenty of money, it is the principal of the thing." Small claims would be more suitable for something like this. I can't imagine him in that forum either, with his attitude he might end up in contempt of court. Good manners are everything in that situation. I think he is presently just trying to save face with his wife. She was the one that wanted the armoire very badly.
posted on June 15, 2001 09:57:04 AM
Thank you for all your help and support. I will let you know in a week if the check was cashed or not. If it has not been cashed, I assume that I am going to court eventually.
I will go to the police in the next few days to report their threats. He may just be full of hot air, but it's good to be on the safe side.
posted on June 15, 2001 11:20:14 AM
I'm glad you will report his threats to the police. That will also help you in the event that it does go to court (crossing my fingers that it won't though anyway).
:0)
Take care!
"I think it pi**** off god if you walk by the color purple in a field somewhere and don't notice it." Alice Walker
posted on June 18, 2001 06:25:20 PM
I promised that I would let you know if the buyers cashed the check; they have not so far. Since it was an in state check, I'm sure it would have gone through by now. I will check again by the end of the week and let you all know.
I wonder if E-Bay would suspend this guy for making threats on the phone. Isn't that against E-Bay rules?
posted on June 24, 2001 05:07:31 PMI wonder if E-Bay would suspend this guy for making threats on the phone. Isn't that against E-Bay rules?
Here is what eBay has to say on the issue. This regards email, but I would assume that the phone is the same:
43099001 Member Violations: Email from other Users: Receiving harassing emails
You can report receipt of harassing email to the users ISP. Unfortunately, in this case private email between members is beyond our control. You can send a copy of the email you've received with full headers to the postmaster of their ISP. For example, the AOL postmaster would be [email protected].
Unfortunately, in this case private email between members is beyond our control.
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[ edited by revvassago on Jun 24, 2001 05:08 PM ]
Have you decided to continue with eBay or has this jerk ruined it for you?
[ edited by revvassago on Jun 24, 2001 05:08 PM ]
[ edited by caravaggio on Jun 25, 2001 09:53 PM ]