Quote:
Originally Posted by tabbieh
My husband wants to deposit this check tomorrow and Im not at all comfortable doing it. I dont want the fee. I do believe since she went out of her way to call us and tell us we were receiving the money and sent us a check that we are deserving of the money. Are we out of line? Would we have a chance in small claims court if this check doesnt in fact clear??
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Long story short, they sent you a check, then told you not to cash it because it was sent in error. Maybe they didn't literally say "in error", but they told you it shouldn't have been sent and that there was a stop payment on the check.
You absolutely could file a lawsuit in small claims court if you wish. Anybody can sue anybody at any time. By all means, if you feel that doing so is an appropriate course of action, then good luck.
You'll need to double-check your local laws, but this would most likely be a small-claims case. Before filing your claim, you'll need to read up on your local Rules of Civil Procedure (google "(your county) rules of civil procedure"). This will explain what evidence is admissible, what isn't, how to present your case, and so on and so forth.
Next you'll want to review the laws relevant to your case. This includes but is not limited to checks, rental / tenancy, contracts, and fraud. You'll also need to research prior cases, because precedent matters just as much as the law itself. What if caselaw shows that not only is your landlord not liable for the check, but you are in fact liable to her? Perhaps there have been prior cases of someone cashing a check after being verbally notified of a "stop payment", then being found liable for liquidated damages of $2500 per check.
You'll also want to take a look into criminal codes that might apply. Is knowingly cashing a stopped check a crime in your locality? How much jail time will you and/or your husband do for cashing a check that you know to be bad? The maximum fine here is $5000 per incident. What is it in your state?
You can either pay a lawyer to do all this for you, or do it yourself through a paid service like Lexis. You can also spend time in a legal library researching your case. You can also go the free route of Google, but you get what you pay for.
Then you'll need to file your lawsuit. In my state, filing for $1300 would cost about $120 with fees and service by sheriff. Your costs will vary.
Then your court date will come. You will have to appear in court and make your claim. Your landlord will also appear and make her claim. She may have a lawyer with her -- some states permit lawyers in small claims court, others do not. Though I haven't seen this personally, some states may permit her to file a motion to remand the matter to the local circuit court, which is generally much less friendly to pro-se litigants. If this applies in your venue, you should research the proper process, formatting, and timeline for filing motions in response (again, available through your local rules of civil procedure).
You may win. You may lose. Even if the law is on your side, and caselaw is on your side, and the judge hates landlords, and the sun is shining and it's happy la-la day in court, you could still lose. Worse, the landlord may file a counterclaim against you for things like defamation and court / legal costs over bringing such a frivolous claim. You should at least research these topics before your court date, find out what statutory damages are prescribed, and find out what defenses work well AND apply to your scenario.
Be prepared to explain to the judge why you cashed that check, even knowing that it was no good, and even knowing that it was sent in error, and why despite all that, you are entitled to damages. And remember, if / when the landlord presents a counterclaim, you need to raise a valid legal defense (not an excuse or an explanation) against that, and that defense has to be applicable under the law.
Your best possible outcome is that you will get your security deposit back, minus the deductions explained to you. Your worst possible outcome is civil damages to the landlord plus criminal charges against you.
I'm not saying all of the above is directly relevant to your particular case. None of us can say without knowing every detail of your situation, including your local laws. For all I know, your local laws may say you're completely right and your landlord was completely wrong. Maybe there's a law that says "no landlord shall issue a stop payment on any check for any reason at any time".
But you should know how ridiculous your threat of a lawsuit sounds. The court system is not a toy. A courtroom is not a live version of Judge Judy. You will almost certainly lose, will almost certainly face liability for both your bank's bad-deposit fee and your landlord's bank's stop-payment-deposited fee, will possibly face criminal charges, and may face a counterclaim by the landlord.
All because you're trying to cash a check that you know to be bad.
The posters in this thread have been very polite, but your idea is colossally bad in every possible sense of the word. If you do decide to file a lawsuit, please keep us all posted with the results.
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