• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Partial Payment as Settlement

  • Thread starter Thread starter joeslug
  • Start date Start date

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

J

joeslug

Guest
What is the name of your state? New Jersey. My wife had a hospital bill that was not covered by my insurance because i had a high deductible. $2900 charge. I contacted the hospital and asked them to lower the charge because I thought it was unreasonably high. They refused and sent it to collections. I sent a letter asking for relief and the hospital ignored the letter again. I sent a check for $1000 and stated on front and back of check "In full settlement of account xxxx". The hospital cashed the check. Now the account has been sent to a lawyer and they are asking for the additional $1800. Is the cashed check considered legal acceptance of the bill as paid or do I still owe the additional money. Isn't their cashing of the check a legal acceptance of a settlement?
 


SS

ßillcollector

Guest
Here is the answer I found in one of the sites for your question. For full page, go to:
Click Here

I negotiated a settlement with a creditor for less than I owed. The creditor is now suing me for the balance. Is this legal?

Yes! You need to read the following information carefully.

Some collection agencies will agree to settle with you for far less than you owe and then turn around and hire another collection agency to collect the difference. However, in many states this is illegal. Once a creditor deposits or cashes a full payment check, even if she strikes out the words payment in full or writes "I don't agree" on the check, she can't come after you for the balance. The states in which this law is enforced:

Arkansas
Colorado
Connecticut
Georgia
Kansas
Louisiana
Maine
Michigan
Nebraska
New Jersey
North Carolina
Oregon
Pennsylvania
Texas
Utah
Vermont
Virginia
Washington
Wyoming

Some states have modified this rule. In the following states, if a creditor cashes a full payment check and explicitly retains his right to sue you by writing "under protest or without prejudice" with his endorsement, thenhe can come after you for the balance. But those exact words must be used. If he writes "without recourse,"communicates with you separately, notifies you verbally or writes on the check that it is partial payment, it is not enough.

Alabama
Delaware
Massachusetts
Minnesota
Missouri
New Hampshire
New York
Ohio
Rhode Island
South Carolina
South Dakota
West Virginia
Wisconsin
 

JETX

Senior Member
Actually, this issue of "accord and satisfaction" is not as clear cut as one would think.

And in this case, the answer is NOT clear. Here is the problem. If you had made payment to a 'third party debt collector', it would be likely that the debt would NOT be relieved since that 3rd party would not have the authority to modify the contractual obligation that you have with the original creditor. In this case, you say that you made payment to the creditor ("The hospital cashed the check.").

The issue of 'restrictive endorsement' (as this is), hinges on the following UCC section:
"§ 3-311. ACCORD AND SATISFACTION BY USE OF INSTRUMENT.
(a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.
(b) Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
(c) Subject to subsection (d), a claim is not discharged under subsection (b) if either of the following applies:
(1) The claimant, if an organization, proves that (i) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (ii) the instrument or accompanying communication was not received by that designated person, office, or place.
(2) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument , the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that that sent a statement complying with paragraph (1)(i).
(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim."

As you can easily see, the issue of whether YOUR restrictive endorsement would meet these requirements would have to be determined by a review of the full facts (words used, placement, whether you had previously made clear of your intent to restrict, knowledge by authorized party, etc.).
Personally, I would feel that your debt was NOT relieved by your attempt to restrict.... or at least of sufficient challenge to make you spend far more than the $1800 difference in legal fees trying to support your position.

Here is a link to a site with a VERY good article on 'accord and satisfaction' and its abilities and limitations:
http://www.carreonandassociates.com/accord-satisfaction-restrictive-endorsement.htm
 

kwalla

Member
Not to make this more confusing...

joeslug said that the hospital refused his request to lower the bill. Even though they refused, he sent a check stating that the $1000 was "in full settlement for account xxx".

It sounds to me like he was the only party in agreement with the "deal", in that case wouldn't they be within their rights to proceed with collection for the remaining amount?

(Just a curious observer question)
 
J

joeslug

Guest
does anyone know what the SOL is on a debt such as this? The original bill was from 4/2000. I made a partial payment later in the year and another one in 4/2003.
 

JETX

Senior Member
There are two possible SOL's on a debt like this.
Most of the time, you (or a responsbile party) has signed an agreement to be responsible for payment of the costs incurred. As such, this would be a written agreement and the SOL would be based on that. In New Jersey, the SOL for a written contract is 6 years.

And if a written agreement does not exist, then the UCC would govern in a case like this which would be 4 years (for goods and services).
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
Top