Security deposit and old check (inspection, liable, landlord, financial)
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We are in the process of suing our previous landlord in small claims court because he violated the California Civil Code by not performing a pre-move out inspection despite multiple requests to do so and made fraudulent deductions from our deposit. There are a host of other issues as well but suffice to say it does not look good for him.
He originally sent us a personal check for our deposit which we did not cash. I called his bank and they said that personal checks are only valid for 90 days (which it is well past). My questions are:
1) Do we need to amend the amount that we are asking for in small claims court or somehow otherwise request a new check?
2) If requesting a new check can/should we request that it be a cashiers/bank check?
3) If he issues a new check for the original amount and we cash it, does that constitute our waiver of our right to sue?
Part of your claim against him is that he fraudulently withheld monies from your security deposit so, in my opinion, no way do you attempt to cash that personal cheque. You claim for the full amount of your security deposit, not for the balance which you allege he wrongly withheld. Keep that cheque and have it with you in court. And, yes, if you only sued for the balance of the deposit then amend your complaint accordingly for the whole.
1) Amend the amount unless you get a replacement check.
2) Yes.
3) No as long as you write on the back of the check that you reserve all your rights.
Which I've read other places as well. Though there does seem to be some descrepency about the law as noted by another lawyer: "
No, generally you do not lose your rights.
Under California law (Commercial Code 3311 official comment 2) you can write the words "without prejudice," "all rights reserved" and/or "under protest" on the back of the check just above or below where you endorse it. This means that you are accepting the check without acknowledging it as full payment or a waiver of your rights.
There is one major exception, however, which is if the check says something like "payment in full" or "full refund of security deposit" on it. In that case, you could lose your rights if you cash the check. An older statute (Civil Code section 1526) said you could simply strike out that language and cash the check without losing your rights, but there is some conflicting law that might defeat the statute.
If the check does have the notation "paid in full" on it, and you really need the money and want to take the risk, make a business decision, cross out the notation "paid in full", endorse the check with the notation "without prejudice, all rights reserved, under protest" on the back and cash it. When you go to court, the judge will likely understand your predicament."
Though it's not something I would do until I was advised by my lawyer to do so.
The amount he returned was around $3000. I calculated he improperly deducted about $1500. I'm suing for around $5000 ($1500 + $4500 bad faith damages)
The amount he returned was around $3000.
I calculated he improperly deducted about $1500.
I'm suing for around $5000 ($1500 + $4500 bad faith damages)
Not sure I'm following. Are these a correct synopsis:
1) the SD amount was $3000 and he has offered you $3000?
2) he wanted to gig you for $1500 and now you want to gig him for $4500?
No, the original SD was closer to $5,000, he returned about $3,000 and I calculated he improperly deducted about $1,500. I'm asking for $4,500 ($1,500 he improperly deducted plus $3,000 in bad faith damages). That being said, according to the law he could be liable for closer to $11,500 in damages if I were awarded the maximum amount allowed.
So since the original check is over 90 days old and thus void (according to his bank) I would be looking for the approx $4,500 SD refund ($3,000 he original paid plus $1,500 he improperly deducted) plus an additional $3,000 in bad faith damages. For a grand total of approx. $7,500.
It is my understanding that federal regulations impose a minimum 180 day check honoring requirement. Al check, unless specifically noted as expiring before those 180 days, must be honored by the financial institution. California law defers to this federal requirement so it's the same.
(cite U.C.C 4-404)
No, the original SD was closer to $5,000, he returned about $3,000 and I calculated he improperly deducted about $1,500. I'm asking for $4,500 ($1,500 he improperly deducted plus $3,000 in bad faith damages). That being said, according to the law he could be liable for closer to $11,500 in damages if I were awarded the maximum amount allowed.
So since the original check is over 90 days old and thus void (according to his bank) I would be looking for the approx $4,500 SD refund ($3,000 he original paid plus $1,500 he improperly deducted) plus an additional $3,000 in bad faith damages. For a grand total of approx. $7,500.
I hope you understand that "bad faith" damages (CA limit up to twice the amount of the original security deposit) are solely a discretionary judgement and only awarded for grand malfeasance on the part of the LL in the opinion of the presiding judge. Historically this kind of judgement is rendered infrequently.
No, the original SD was closer to $5,000,
he returned about $3,000 and I calculated he improperly deducted about $1,500.
I'm asking for $4,500 ($1,500 he improperly deducted plus $3,000 in bad faith damages).
Does improperly mean the method of HOW he went about things (inspections etc)...
or are you asserting that there weren't damages to the property that warranted a deduction?
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