VERY messed up situation, please help!!!

Just came to mind that in Maryland, where I live, contracts don't even have to be in writing to be binding (they can be oral agreement between parties). But not sure about Virginia, and that definitely doesn't make the whole small claims court process easier.....

As a general principle, a contract in the U.S. merely requires an offer, an acceptance, and consideration; a contract does not have to be in writing to be to be enforceable. Writings are preferable because they are more easily provable. It is not the lack of a writing that would likely be troublesome for you here, but the lack of concrete terms, i.e., what exactly have the two of you agreed to?

Additionally, I believe you said that her bank informs her before cashing her checks, which would seem to be a serious violation of any bank's policies (I put myself through undergraduate school working in banks, and this never, ever happened). If banks informed account holders before cashing their checks, virtually no judgment/lienholder or other creditor would ever be able to collect what they are owed since the account holder would likely do what you fear your debtor has done here--simply write worthless checks and then clear out their accounts before anyone could collect.

I think Ellie Mae has given you the best advice on maximizing your chances of collecting in the worst case scenario (i.e., if you cannot simply cash the check and remit the overage to your buyer by bank check via registered mail--you definitely want to cross all your t's and dot all your i's with this woman)--contacting the DA in both her and your own jurisdictions, describing your situation and asking for advice on how best to handle the situation.

Additionally, you generally do not need an attorney in small claims court; it can't hurt to get legal advice if it makes you more comfortable, but you should not need legal counsel to pursue such a claim. You just want to make sure this doesn't end up costing you more money than you can ultimately collect from the legal action. Good luck with this! :smile:
 
As a general principle, a contract in the U.S. merely requires an offer, an acceptance, and consideration; a contract does not have to be in writing to be to be enforceable. Writings are preferable because they are more easily provable. It is not the lack of a writing that would likely be troublesome for you here, but the lack of concrete terms, i.e., what exactly have the two of you agreed to?

Additionally, I believe you said that her bank informs her before cashing her checks, which would seem to be a serious violation of any bank's policies (I put myself through undergraduate school working in banks, and this never, ever happened). If banks informed account holders before cashing their checks, virtually no judgment/lienholder or other creditor would ever be able to collect what they are owed since the account holder would likely do what you fear your debtor has done here--simply write worthless checks and then clear out their accounts before anyone could collect.

I think Ellie Mae has given you the best advice on maximizing your chances of collecting in the worst case scenario (i.e., if you cannot simply cash the check and remit the overage to your buyer by bank check via registered mail--you definitely want to cross all your t's and dot all your i's with this woman)--contacting the DA in both her and your own jurisdictions, describing your situation and asking for advice on how best to handle the situation.

Additionally, you generally do not need an attorney in small claims court; it can't hurt to get legal advice if it makes you more comfortable, but you should not need legal counsel to pursue such a claim. You just want to make sure this doesn't end up costing you more money than you can ultimately collect from the legal action. Good luck with this! :smile:

all true!

You don't need a lawyer to take her to small claims court. You can represent yourself. Just keep all records, emails, phone calls, past transactions you had with her to show you had given her the bag without paying you in full in good faith because in the past she always did end up paying. I took a person to small claims court I represented myself, the defendant hired a lawyer and I still won. As long as you can clearly state the facts you will be fine
 
I would pay her a visit at her shop. I'd also let her know that if she doesn't pay you, you're going to take legal action. She should know that you've been very willing to work with her. If it came up that she couldn't pay, she should have told you that and worked out another agreement such as $50/wk.. or something to that nature. While I understand you aren't "friends" you did build a trust with her so she should have been honest with you.

I wouldn't cash the check just yet. Make sure you talk to someone to see what your rights are, etc and then go from there with the check if it's allowed.

Good luck.
 
Update - did try to cash the check this afternoon, the clerk never called anyone for approval, but smiled and said that they won't be able to do it ....today. No news here....

Lush Life, actually my bank called me before cashing large checks I wrote a few times. Don't know if it's legal, but guess they want to protect themselves from check fraud.

The DA office advised me to call the police station at the mall where she handed me the check (???!!), so they can 'start investigation' (???). Very confused, but will try it tomorrow - see what they say.

Thanks everyone again for the great advise and good wishes!!
 
OP, this is a small claims case. As a plaintiff you must prove your case by a Preponderance of the Evidence to win. Prepare all the evidence you have. Go for it. And you're right, oral agreements are binding if you can prove it, having a check from this person in your possession is quite the evidence. Good luck.
 
You need a paper trail with this check.. you have to deposit it and have her bank

show that it is either being returned for insufficient funds, uncollected funds or

stop payment.. you then can proceed to the local authorities to find out what

you can do legally.. small claims court.. perhaps if you have a lawyer friend they

can write a letter advising her that if she doesn't pay you the amount of money that

is due, you will take legal action against her..
 
well i watch a lot of reality court room shows...

usually when a person tries to collect funds from someone, they use the "insufficient funds" printed check as evidence. so maybe you should deposit the check (don't spend any of the money) then let it clear as "insufficient funds"
 
Update - did try to cash the check this afternoon, the clerk never called anyone for approval, but smiled and said that they won't be able to do it ....today. No news here....

Lush Life, actually my bank called me before cashing large checks I wrote a few times. Don't know if it's legal, but guess they want to protect themselves from check fraud.

The DA office advised me to call the police station at the mall where she handed me the check (???!!), so they can 'start investigation' (???). Very confused, but will try it tomorrow - see what they say.

Thanks everyone again for the great advise and good wishes!!

Yes, I work at a bank and we also call customers if there are non-customers trying to cash their cheque, if its suspicious or if the customer requests a call. Our bank does it to protect the account holder and ourselves from a loss.


Did you try to cash the cheque at your bank or the buyers bank? If your bank is the same as her's then they should be able to see the funds on their system just by looking at the cheque and also any stop holds which could have been placed on the cheque. So if you both use the same banks then maybe this is the case...
However, if you and the buyer use different banks then the teller would have to call to verify. The only case I can think of where I do not call is if the cheque appears fraudulent to begin with.

I was going to suggest trying to certify the cheque at the buyers bank...although at my bank it is also policy that we call the customer prior to certifying but it is worth a try. You might have to pay a small fee but if the funds are there then her account will be debited immediately making the cheque guaranteed!
 
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I am sure it was refused because of NSF, however the bank clerk is not allowed to tell that. We have different banks - I guess at this point depositing the check at my bank, then waiting for it to bounce is my only option...I'll keep you guys posted - thanks for all your input!
 
I am sure it was refused because of NSF, however the bank clerk is not allowed to tell that. We have different banks - I guess at this point depositing the check at my bank, then waiting for it to bounce is my only option...I'll keep you guys posted - thanks for all your input!

Well if you deposit it, maybe she has bounce protection, so even if there is no money in her checking account, they will cover it? Kind of a wild hope. Good luck, sounds dicey about ever getting this $$ back, sorry to say...
 
Well if you deposit it, maybe she has bounce protection, so even if there is no money in her checking account, they will cover it? Kind of a wild hope. Good luck, sounds dicey about ever getting this $$ back, sorry to say...

well there is hope that it bounces. that way she can have reason to collect through small claims court.
 
This happened to me. Met a buyer she paid with a check. I called her bank to verify funds were in the account prior to me giving her the bag they were. I cashed the check it came back NSF. I then took her to small claims court without an attorney. (I went to the free legal advice and they helped me fill out all the paperwork.) It cost very little to file, maybe $60. I had the sheriffs office serve her the papers. She didn't show up in court, I got a default judgment. In California you can sue for three times the cost of the check plus the service fee your bank charged you. Her check was for $800. I sued for $2435. The court allows them 45 days to pay the judgment, she didn't pay. I used a skip tracer to find out her place of employment, assets, etc. I then did a wage garnishment using my default judgment and was paid every month directly from her employer. She lost her job when she owed me about $300 more. I decided not to pursue it further for the $300. Its a lot of leg work but well worth it. My small claims court required me to send a certified letter giving them 14 days to give me the money and then after the fourteen days I was able to file in court. Make sure you save all paperwork, emails, certified receipts, notice of service, etc. Hope this helps.