Guys need some input on this.....

A woman back in Jan this year came in the car lot in bad need of a car.Mother of 3 tring to make it on her on.She came up short in the funds on what she needed between what she had and what the finance co would give.So we let her give us post dated checks for 100.00 for 7 month,cash one a month.About a week after the deal she called and said that her bank account was closed and she forgot about it and for me to hold the checks and she would pick them up.She picked the first one up with no problem.The 2nd came due and she had been kicked out of her house and had to get another place to live.Well you know the story some hard luck story everytime a check comes due and still owes for the 2nd one.
Ok I said enought is enought got tired of nice guy called her and told her she needed to do something or I was putting the checks in the bank.She told me to go ahead that there was nothing that could be done that she was friends with the sheriff and he said I did not have a leg to stand on.
So I called the clerk of court() to ask them about it,told them the deal and they said they would call me back,10 mins later the sheriff was at the lot and told me to leave her along and not to contact her about this that there was nothing I can do about it that I made enough money on the car and that it was harasment if I did not stop.

I though writing a check on a closed accout was againest the law and you have a right to collect you money..

Help me out on this if you know how I can get around this cornbread good ol boy crap that goes on here.....

Next election , you run for sheriff


Mike

Here, "postdated checks" aren't technically legal tender.

You can accept them, and the payee might make good on them.

(Here), if the payee bails, you're pretty much SOL.

Unless you have a signed loan agreement, you're done for.

That is a bunch of crap. It is against the law to write check's on a closed account. I'd try small claim's court. Good luck to ya.

It became a civil issue when you agreed to accept the checks for "later" payment. If she had just written "hot" checks it would be different. There is a distinct difference in civil vs. criminal law, and cops don't (can't) enforce civil law, without court order. Contact an attorney or judge, which ever is appropriate for the amount of money that you are owed.

"I though writing a check on a closed account was against the law and you have a right to collect your money.."

doesnt sound like there is any money to collect.

Easy--follow the woman around who's driving (your) car--take pictures of it parked in front of the Sheriff's house midday--show these to the Clerk of Court (his wife)--you'll feel better I promise.

CF

Sounds like sheriff may have significantly overstepped his bounds.
Lawyer advice time on this one!

IF she truly is a single Mom down on her luck, AND you can afford it, then writing off the bad debt may not be a bad thing.

She wrote the checks on a valid account, since closed.

I don't think I would get to far....people at the top pick the man they want for that job.

Security interest in the car?

No good deed goes unpunished...It is a crime to write a bad check, it can also be criminal fraud to write one on a closed checking account. Problem is that, at least in my area, there is a lot a latitute in how a prosecutor may choose to handle these cases, and that sheriff won't be any help to you.

In the end, it also won't get you any closer to getting your money back. Some states and counties have special offices that do nothing but handle bad checks, you could do a quick internet search to see if anything like that exists in your area. They could be a big help to you.

You could also file a case in small claims court for a breach of contract. However you slice it, she did agree to pay you $700 over seven months for the balance of the car and the post dated checks sort of prove that. However, even if you win your case, you still need to collect the money, which isn't always easy. This person doesn't sound like she has a pot to pizz in you so in the end, it could be like getting blood from a stone.

Yep, learn from your mistake and cut your loss.

laws can vary state to state, but taking post dated checks is risky business. in some states like florida where i live, even currently dated checks can be risky. about 2 years ago i sold a 93 chevy 4 wheel drive pickup to a guy i knew for about a year. it needed some minor things like tires and brakes and we agreed on $2000. i met him at the tag office to get my check and transfer title. before we went in he asked if i would take a post dated check for a date 5 days later. i asked why and his reason was he was to be paid for a job on that day. i told him to date the check for the day we were there and i would hold it for the 5 days. it was written on an active business account. we went into the tag office and transferred the title. he did not purchase tags, just transfered title. 6 days later i went to his bank and was told the funds were not in the account. many attemps to contact him failed. the sherrifs dept told me to go to the county attorneys office. there i was told there was nothing i could do as what i did by accepting a check on those terms constituted an agreement. i knew the funds were not available and should not have transferred title untill the funds were there. he technichly didnt give me a bad check in their view. he immediatly transferred the truck to another person. i never got paid.

i did ask one and have been one for 53 years. w.k. bray # 410 pa.

You could take her to small claims court and use the checks as evidence she agreed to pay an additional $700.00, or whatever the sum was over the time indicated by the check dates. But even if you get a judgement in your favor, you will not likely collect since she's broke and will likely stay that way, unless the good sheriff begins paying her better for her services.

If it makes you feel any better, you just learned more about the law and justice system than any $700.00 college course could have taught you.

Florida has some very tough bad check laws. In FL, you could be entitled to treble damages on a bad check, plus atty fees, and a bad check written for $2000 can be a felony. Most counties in FL have a special office to deal with bad checks.

Problem is that two years might be too long to pursue this. You might want to make a call to your local bad check office to find out if the statute of limitations has run. At the time, it might have paid to have talked to a lawyer. The advice you received doesn't seem to follow the statute. Your case wasn't clouded by a post-dated check. Your deadbeat check writer wrote a check without having the funds in his account. The funds weren't there on the day he wrote and dated the check and for that matter they weren't there 5 days later either. While its true that his acct wasn't closed at the time, it doesn't have to be to get the enhanced damages and criminal liability. You certainly had a case against this guy, maybe you still do, whether or not there was criminal liability is a tougher call to make, probably not, but you could be entitled to a court judgment of $2000, plus $6000 more in damages.

Take the car back, go to jail for "theft", ask the judge how the court enforces payment on penalty, tell him to [bleep] off after not being allowed the same creedence, despite being a law-abiding, honest person, spend more time in jail plus fines.....


Lesson learned: They have more of a right to steal than you do to collect. Make sure no lawyer that turns politician ever gets elected. The law isn't there to protect honest, hard working people, its about money and who has it and who doesn't.

Looks like a judgement is as good as you'll get. May collect, may not, but the principle should always be present.

Judge Judy.

If she financed the car based on the down payment which should've been disclosed on the contract, you are on the hook for the balance if the car is repossessed (if they check terms of sale).

You should contact your attorney, but I think you'll be out of luck unless you file suit. The amount is nominal so you need to think that one over.

Or, don't sell a car to someone who can't afford to buy it. This is how we got into or current financial crisis.

Dan

IMO, it could be considered larceny by trick/false pretenses.

bottom line is............you've been scammed.

A magistrate may think so as well and issue the warrant.

I have no sympathy whatsoever for those that fraud/steal for luxury items.

Talk to a lawyer post haste. I sent you a PM about this.

used car dealer gets burned by his greed.

that is too funny right there.

Hi

She sounds like a real piece of garbage, at this point I think your better to call this one a "learning lesson. To much stress for you and if she has the ability to send down the Sheriff down to see you it's just not worth it even though the Sheriff is "wrong" for getting involved.

Post dated checks are not legal in certain states as well, you can't repossess the vehicle unless you have a side agreement in writing and if the lender would subordinate the loan to you which will never happen.

If you hire a lawyer it will cost you a lot more than your loss and even if you get a judgement against her you still might not get paid.

I was in the Car business myself for over 20 years and I financed a lot of the cars myself and unfortunately people don't appreciate it when you do them a favor !

In this world of everyone expecting handouts you really have to choose your battles. It's total BULLSHIT but it is what it is !!!!!!!

Dino

In this state, if you take a post-dated check, it's the same as 'giving credit' and you will end up with NOTHING..

Lesson learned..

Did you put your name (or your business name) on the title as second lien-holder? If not - 'nother lesson learned..

If you have a valid, legal purchase order that shows she's putting 'X' dollars down but you can't obtain those funds, it's possible you might be able to obtain a judgement in your favor via small-claims court.. But it'll cost ya.. AND, if she's really on the down-and-out you'll collect nothing anyway.. Oh, and if you go to court, ensure you supoena the sheriff and have him testify about his warning to you.. I doubt what he did was perfectly legal..

One other thing to do: contact the finance company and let them know the details.. It's possible that once she misses her first or second payment (and she will) that they can yank the car quickly. Then pay off the finance company and get the car back.. Start over and remember the lessons above.. Best of luck.

Last lesson learned..


In the car biz - GET THE BUX UP FRONT.. I was in that career for over 14 years.. Heard every story in the book and then some.. It's the old rule - 'trust, but verify'...

Frankly, you might as well write it off..

As to the sheriff - maybe she's, um, doing him some 'favors' on the side to help her case..

Pat has it right. Its now a civil case if you want to pursue it.

Well..........................................

I got to say the first mistake on your part was to accept post dated checks instead of having a promissory note or loan agreement. Post dated checks, depending on states laws, are generally a no-no.

If the checks were written on a closed account from the start then there is fraud involed. Writing checks on a closed account is illegal. Do you have any proof that the account was in fact closed at the time the checks were written other than her word on it? It doesn't really matter if you don't wish to have it investigated for fraud and the Sheriff probably won't pursue it as a crime anyway.

You're also in a grey area with the finance company, by in essence, loaning her the down payment. I'd be willing to bet that the finance company approved the loan based on her making the down payment in cash. With a finance company involved I'll also assume that they hold the title to the vehicle. That leaves you with no ownership interest in the car which would prevent you from reposessing it.

That leaves you or the dealership in the position of collecting an unsecured debt that was made using post-dated checks. I'm not a lawyer and I have no idea what your state laws are in this regard but it's probably not a good situation. A judge may not honor this agreement if it's illegal to accept post-dated checks in your state. Judges frown on businesses that stray from using proper and legal business practices in making loans.

You still can try and collect the debt from her. Mail her a monthly statement for the ammount owed. It's unlikely but if your nice about it she may send you the payments.

The one thing that hasn't been mentioned is the profit the dealership is making on the sale. It really has nothing to do with the debt but I'd be willing to bet the $700.00 is mainly profit on the deal. If she isn't willing to pay her debts just bite the loss or accept the fact that it's a no or low profit car deal.



fish head

Go repossess your car,for one. Talk to a magistrate, as well. Finding a magistrate to issue a warrant is as easy as drinking at a water fountain around my parts.

It's criminal fraud in most places and/or a element of theft/larceny theories so, let her prove the crime is improperly charged. In the meanwhile, you'll have at least got her sorry-assed attention.

Let her sort it out at her expense,not you! I certainly hope no one here truly thinks the car now belongs to her without any recourse!

Of course not, and I can't speak for Virginia, but the burden(in Texas) is proving that her intent is to permently deprive somebody of their property. When you start explaining to the DA how "I took these checks, knowing that there were no funds at the time, but she promised there would be later, and there was money to cover them some of the time, but some were late, but it was okay then, but now the account is closed, but that's okay if she'll just pay ..." you'll get referred to the JP down the hall to file a small claims suit.

How could he reposess the car if the loan company holds the title? His debt is unsecured.

Also, if he made the loan using post dated checks as a "security agreemnt" ? ? ? wouldn't that, if it is illegal, prevent him from collecting the debt or at least having a judge frown on the whole deal. The dealership is, or should be, held to a higher standard in making loans that are legally enforceable.


I'm not trying to argue with you Issac as you're the expert here. I'm just curious.

fish head

You feel free to argue your position all you like, especially if you feel your position is strong, as it most likely is. The guy is a holder in due course. An presentment of a post dated check is a assurance/warranty that the money will be available on the posted date. If the woman did nothing more, such as a call to explain, make other arrangements for payment or provide any notice of the check not being sufficiently funded by the account, a intent sufficient enough for a magistrate to issue a warrant may exist. If she's arrested and I say if, I bet she figures it all out without delay.

Intent isn't figured out before the warrant or indictment, it's figured out afterwards. Cops and magistrates are not the arbiters of intent.

Screw 6 months or longer with the civil process. Jail solves money problems real quick-like!!

Assuming intent is her problem to ultimately work out, the elements of larceny by false pretenses can be sufficiently PCd enough for a magistrate to issue a warrant,IMO. 80 times out of 100 they probably won't,maybe more, but the civil process court docket would be much less crowded if they did it my way...GDit!!

Here are the elements for the charge in my Commonwealth:

Thus, by statute, the obtaining of money by false pretenses is larceny.   See Hudson v. Commonwealth, 223 Va. 596, 597 n. 2, 292 S.E.2d 317, 318 n. 2 (1982).  �To sustain a conviction of larceny by false pretenses, the Commonwealth must prove:  (a) that the accused intended to defraud;  (b) that  a fraud actually occurred;  (c) that the accused used false pretenses to perpetrate the fraud;  and (d) that the false pretenses induced the owner to part with his property.�  Wynne v. Commonwealth, 18 Va.App. 459, 460, 445 S.E.2d 160, 161 (1994).

Issac, thanks for the answer.

I'm still not clear on the repossession issue though. How can he repossess a car that doesn't belong to him?

In simple words please.


fish head

This is complete BS what she did is steal or scam the OP. I am sick of the attitude that allows people to get away with crap based on there shortcomings. The bigger POS loser they are seems to get them a pass on more stuff as well as handouts.

She took advantage of the situation, and I would be willing to bet that she had a conversation with the sheriff before she decided to close the account to see what the consequences of doing so would be. The fact that as soon as the OP confronted her, she pulled the "friend of the sheriff" card to me means that she had went to him for advise before she even closed the account.

That's partly what I meant about the strength of your argument. My cursory review of the facts got me into a wee bit of a jam so I had to claw my way out of. I thought a compliment might salvage my lazy mistake.

I'm sticking to the rest though and will fight my way out of it TRH style,if I'm pushed!!

Isaac,

If there were any sort of a written contract would the OP not be entitled to place a lien on the car, then either execute the lien or collect on it when the bank inevitably repossesses the property?

he'd be a secondary in a situation where the primary is probably already taking a bath on the loan:value ratio.

What if he executed his lien first?

Issac,

I'm not trying to be arguementative and I'm certainly not trying to show you any disrespect. I have no dog in this fight whatsoever. It's just a friendly campfire debate and discussion.

OK?


fish head

I think that horse has already left the barn, at least on paper.

Sounds like you got a problem for a sheriff.

You also have problems collecting. This isn't a "typical bad check" case. It borders on civil. At any rate, screw the sheriff, and collect your money or repo the car. The sheriff doesn't get to decide how much money is enough profit for you. And, the DA's office, not the sheriff should have a bad check unit. But you may run in to problems having taken posted dated checks and such. My advice, repo the car.

Exactly why he might consider a inattentive magistrate's issuance of a warrant. All that schit goes away when the woman is looking at lawyer fees and possible prosecution/jail time.

I'm sure there has to be a statute relating to this very conduct in their books somewhere.

Sorry, but this is just one of those areas where I take umbrage at the underlying conduct. When folks come to me to defend them on these matters, I tell them it's 3500 bucks to get you started. If they say OK, I then say let's contact the lot owner and resolve this with that money and avoid all of this.If it's a prosecutor I have to call to save their cheating asses, I'll take 500 of it. I have to get paid a little to deal with the bad guys!!

Dude, I think we're fine. You're reading too much into my replies. I complimented you. Savor the moment!!

Bad Check:



Any person who knowingly issues a check which is refused by the the bank because he does not have sufficient funds on deposit in or credit with the bank upon presentation, and fails to pay to the payee the same amount plus any service charges imposed by the bank and payee for processing the dishonored check in cash within 30 days following a written demand therefor, may be liable for the amount of the check, the service charges and process fees, and for additional damages of three times the amount of the check not to exceed $500 and not less than $100.00. (6-21-2-3(a).) The processing fee permitted under � 25-3-506 of the North Carolina General Statutes is $20.00 provided that the payee has conspicuously posted a sign, in plain view, and with prints no smaller than 8"x11", in the immediate vicinity of the cash register or other place where the check is received, stating the amount of fee which would be charged on returned check.

The holder of a bad check is required to send two written demands before initiating any action to recover the damages above described. The initial written demand must be mailed by certified mail to the maker of the check at his last known address and in substantially the following format:


"This letter is written pursuant to G.S. 6-21.3 to inform you that on ________________, you made and delivered to the business listed above a check payable to this business containing your name and address in the sum of $________, drawn upon ________________ (bank or institution), account # _______________. [If the check was received in a face-to-face transaction insert this sentence: This check contained a drivers license identification number from a card with your photograph and mailing address, which was used to identify you at the time the check was accepted.] [If the check was delivered by mail insert this sentence: We have compared your name, address, and signature on the check with the name, address, and signature on file in the account previously established by you or on your behalf, and the signature on the check appears to be genuine.] have received no information that this was a stolen check, if that is the circumstance.

The check has been dishonored by the bank for the following reasons:

As acceptor of the check, we give you notice to rectify any bank error or other error in connection with the transaction, and to pay the face value of the check, plus the fees as authorized under G.S. 25-3-506 and G.S. 6-21.3(a) as follows:

Face value of the check $__________________
Processing fee authorized under G.S. 25-3-506 $__________________
Bank service fees authorized under G.S. 6-21.3 $__________________
Total amount due: $__________________

If the total amount due listed above is not paid within 30 days of the mailing of this letter, thereafter we may file a civil action to seek civil damages of three times the amount of the check (with a minimum damage of one hundred dollars ($100.00) and a maximum damage of five hundred dollars ($500.00)) for allegedly giving a worthless check in violation of law (G.S. 6-21.3), in addition to the amount of the check and the fees specified above.

Appropriate relief will then be sought before a court of proper jurisdiction for full payment of the check plus all costs, treble damages, and witness fees.

If you do not believe you are liable for these amounts, you will have a right to present your defense in court. To pay the check or obtain information, contact the undersigned at the above business location. Cash or a bank official check will be the only acceptable means of redeeming the dishonored check.

If you do not believe that you owe the amount claimed in this letter or if you believe you have received this letter in error, please notify the undersigned at the above business location as soon as possible." (6-21-3(a1).)

If after the first notice, the maker of the dishonored check failed to pay the sums as demanded, the holder may file an action to recover the amounts demanded, including reasonable attorney fees and court costs, 30 days after mailing a second written demand in substantially the same as follows: (6-21-3(a2), 6-21-3(b).)


"On __________________, we informed you that we received a check payable to this business containing your name and address in the sum of $ __________, drawn upon _____________________ (bank or institution), account # ________________. This check contained identification information which was used to identify you as the maker of the check. Also, we have received no information that this was a stolen check, if that is the circumstance.

The check has been dishonored by the bank for the following reasons:
_________________________________________________

We notified you that you were responsible for the face value of the check ($________) plus the fees authorized under G.S. 25-3-506 ($________) and G.S. 6-21.3(a) ($________) for a total amount due of $ _____________. Thirty days have passed since the mailing of that notification letter, and you have not made payment to us for that total amount due.

Under G.S. 6-21.3, we claim you are now liable for the face value of the check, the fees, and treble damages. The damages we claim are three times the amount of the check or one hundred dollars ($100.00), whichever is greater, but cannot exceed five hundred dollars ($500.00). The total amount we claim now due is:

Face value of the check $___________
Processing fee authorized under G.S. 25-3-506 $___________
Bank service fees authorized under G.S. 6-21.3 $___________
Three times the face value of the check, with a minimum
of $100.00 and a maximum of $500.00 $___________
Total amount due: $___________

Payment of the total amount claimed above within 30 days of the mailing of this letter shall satisfy this civil remedy for the returned check.

If payment has not been received within this 30-day period, we will seek appropriate relief before a court of proper jurisdiction for full payment of the check plus all costs, treble damages, and witness fees.

If you do not believe you are liable for these amounts, you will have a right to present your defense in court. To pay the check or obtain information, contact the undersigned at the above business location. Cash or a bank official check will be
the only acceptable means of redeeming the dishonored check.

If you do not believe that you owe the amount claimed in this letter or if you believe you have received this letter in error, please notify the undersigned at the above business location as soon as possible."

The issuance of a worthless check may constitute a Class I felony under �14-107 of the North Carolina General Statutes if the amount of the check is more than $2,000, or a misdemeanor if the amount of the check is $2,000 or less.


See North Carolina General Statutes, as well as later statutory amendments, if any linked here. Please check for any amendments

I think the conduct of the sheriff bears scrutiny.I'd call him back ,and try to get him to clarify his position,on tape.

Thinking that too.

From experiences of friends who have chased bad check writers in court.
Bad checks are frowned upon and the court takes them very seriously.
Courts do not consider post dated checks "bad checks".
As the judge said. You knew there was no money to cover it when you took it. The only check you should take is one that you can walk to the bank and cash right then. Then if the money is not there it is a bad check. By taking a post dated check you issued credit. FWIW.

Are you suggesting that were I to write out a check for 5K to you today but date it for Monday, my fraud is good to go??

only so far as my willingness to give you an unsecured "loan" until Monday.

You can't invent a loan out of thin air. There's no factual dispute as to the transaction here. You're somewhat making my fraud argument for me.

there's a difference between being factually correct and getting the money back.


this happens to us on occasion, where you get a deposit and a promise to pay the balance. Most times they're not gonna pay.
I tell my associates: "You're welcome to do the case, but realize you're doing it for the deposit amount. You won't get more than that."

it would have to be a huge sum to justify (my) doing anything more than turning it over to a collection agency.

I'd tell you to date it today and I'll hold it until Monday.
I imagine intent might come into play as to what charges and criminal vs. civil.
I am suggesting if you knowingly take a post dated check that is not good that it is going to be a whole different ball game in court vs. taking a check you understood to be and the writer portrayed to be good.

When it comes time for him to run for reelection send the sheriff an unsigned check for $700.00 along with a note; "This is the amount YOU cost me by refusing to enforcing the law. Spend it in good health." If he is actually dumb enough to come ask you to sign it give him a very unvarnished piece of your mind. If you can send it on an account that is closed.

Guys... you would have to know the OP's home town... it's a pretty area with great hunting and fishing... but it's also one of those places where you scratch the surface and realize that it's a real shame when cousins marry....

Think Deliverance.

Never confuse charity with a business transaction, you're just asking for a disapointment at best.

Google the, "Uniform Commercial Code" with respect to post dated checks. Unfortunately, I think you might be screwed.

What's she look like? Maybe ya'll could settle up in the back seat.