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Can I Cash Check and Still Go to Court

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  • 07-13-2009, 12:48 PM
    CindyinMass
    Can I Cash Check and Still Go to Court
    My question involves a security deposit in the State of: MA
    Im considering filing a claim against my former landlord for the $400 he deducted from my security deposit. My problem is I need the money now and if I cash the check that he did send me am I then agreeing to the terms of the check and I could no longer take him to court??
  • 07-14-2009, 09:35 AM
    LawResearcherMissy
    Re: Can I Cash Check and Still Go to Court
    What terms might those be? Is there a restrictive endorsement?

    Cashing the check would not prohibit you from seeking the remaining amount you feel is owed through small claims court.
  • 07-14-2009, 10:06 AM
    SChinFChin
    Re: Can I Cash Check and Still Go to Court
    Quote:

    Quoting LawResearcherMissy
    View Post
    What terms might those be? Is there a restrictive endorsement?

    Cashing the check would not prohibit you from seeking the remaining amount you feel is owed through small claims court.

    A landlord deducting for damages should be clever enough to include a "payment in full" on such a check. If not, he's not a very bright landlord, and should not be in the landlording business.

    In the past, it was recommended that someone cashing such a check marked "payment in full" should cross out the "payment in full", and include "under protest", with "accepted as partial" when endorsing it, though recently, I understand even this method may be questionable.

    When I took a seminar on this issue once, I was told that state laws and precedents apply, so there is really no real universal rule. The safest universal rule suggested in not to cash it. I was in the "credit and collection" field in one of my previous careers, and we often receive partial payments from customers marked "payment in full" on them.

    To be on the safe side, if the OP writes anything on the check, make a copy of the check before cashing it, in the event the maker makes any additional changes on the check before going to court, assuming he gets the checks back. I saw a court case once where the maker wrote a few more things on the check after getting it back to bolster his case.
  • 07-15-2009, 07:36 AM
    CindyinMass
    Re: Can I Cash Check and Still Go to Court
    Thanks, I made copy today for my records and I will cash it, it does NOT say payment in full or anything on the check. When I said "terms" I just meant I thought if you accept a check you accept the amount.
    All I have is a PO Box address for him, can I file a claim with a PO box?
  • 07-15-2009, 08:33 AM
    SChinFChin
    Re: Can I Cash Check and Still Go to Court
    If there is no "restrictive endorsement", PLEASE write "accepted as partial payment for security deposit". This way, you're on FIRM ground. That's how I was trained.

    As to the PO box, I believe you'll need to check this point out down the local courthouse, though my understanding is you'll need to serve him at his home (if that's where he runs his rental business).

    As to obtaining his home address, the USPS requires all PO box holders to have on file their home addresses, though you might need to file an information subpeoana to get it. Check this point out at the local post office and court house too.

    The other way is owners of records are public information, on file at the local tax office, or the internet, and you can probably get hold of his address that way.
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