Fraud, Embezzlement, Bad Checks Bad Checks

[CLWELCH]

My husband and I are law abiding tax paying citizens with college degrees and are 35 plus years old. We have been married 10 years. We have never done anything illegal, or malice. In fact we have been heavily involved with politics, mostly campigns both local, and national. We live in Indianapolis In and have been employed for 10 years by the same global reputable employers.
I give you this background to provide the fact that we are very stable, but like millions of americans, due to life's circumstances have less than perfect credit. Although I must admit I am embarrassed to be asking information about writing a NSF check.

But here is our story,
Recently we made two major purchases, a 300,000 home and a SUV. The home we had to carry certified funds of over 40k to closing. (yes, unfortunately there is another thread that will be posted about this deal on the real estate section of the law). So that pretty much wipe out our accessible savings with the exception of about 5000 left in a Merrill Lynch(ML) account.

However, we really needed another vehicle so we went to a Mitsubishi dealership and made a deal. The deal was to put down 5250.00 for the SUV. This was not our choice, but the only choice we had according to the dealership who ran our credit , you know how they do.

Anyway, we agreed and the deal took place on Sept.13, 2001. Yes just a couple of days after the "herrific ordeal". In fact on the market, wall street, dow jones, and commercial lenders, were still down. Not thinking about the effects this could have on our last 5000. 00, I wrote a check for the downpayment counting on our investment to be available. I processed the transaction on line the same day to retreive the funds.

Normally, we could sell stock etc. and have the funds in our account within about 3 days. Well because of 9/11 events it took a couple of weeks to get back a response. We made the dealership aware upfront that is where we planned to get the cash and they agreed to hold off the deposit for a week or so.

Since I did it on line, on 9/19 I received an email saying the funds had been transferred to our account. Due to confidentiality, on line it does not list the amount. A follow up letter comes via postal service within a few days later. The dealership deposited the check which hit our account 2 days later . We had already took ownership of the vehicle for over 2 weeks as the finance company had paid the dealership and we had signed the contract.

I had to go out of town for a work related trip which took longer because I had to drive. My husband came along because of the drive and we thought we would extend it a couple of days. When the letter arrives from ML with the amount, no one was home to receive it. We didn't bother the account and "assumed" the correct amount had been deposited.

When we returned home, there were numerous messages left at our work numbers and at home from the dealership saying that the check didn't clear. We immediately checked our account to find less than $600.00 available. We opened the mail from ML to find our investment had shrunk to about $600.

We were devistated by this! We immediately contacted the dealership and explained. We took them $1000.00 CERTIFIED FUNDS, that we manage to scrape up from various accounts and asked them to give us at least a week to try to come up with the remainder of the cash. Reluctantly they agreed.

However after trying every legitimate and cut throath co within 3000 miles we could not get a personal non secured loan, get the vehicle refinanced, have the balance available on any of our 2 credit cards or find anyone who had or would loan us the money. I beleive a lot of the personal rejections were due to the fear evreyone had of the economy or they just didn't have it to spare. The commercial rejections were due to our credit rating which had gotten worse because of all the recent inquiries for our recently aquired mortgage and SUV.

So we contacted the dealership and pleaded with them to accept $500.00 bi-weekly until we could come up with the rest or paid it off, whichever came first. Or we offered them the title to my husband 's excellent condition 93 Ford Ranger xlt blue book valued at 5000 and we only owed them 4250. They refused both and said that they wanted the vehicle back. Well they were not the title holder on the vehicle, the finance company was, to give it back to them now, the finance company said they would have to show it as a repossession plus we would be out of the 1000.00 we had already gave them.

When we told them about our conversation with the finance company, they begrudginly stopped talking about coming to repo the vehicle because legally, I don't think they could. They told us they were going to turn it over to their attorney. They yelled that they would sue us for 3 times the amount of the check and the attorney or legal system will not allow us time to pay it off in any increments. The other interesting fact is this past weekend they used almost every local media platform available to advertise a sale for the same vehicle but a newer year 2001&2002 ours is a 2000, for 1000.00 less than what we had already paid them. Same features and everything we had a friend go up and get the deal in writing but he did not purchase. So we know that they over priced the vehicle anyway.

We bought that to their attention to try to plea bargain, but we beleived that unless they agreed to give us that price we would still be responsible for the higher amount due to the check and the sales contract we signed for the higher amount. Of course they were not willing to negociate.

We are waiting for the Ax to drop to hear from their attorney any day now. Please tell us what can we do? We still have not been able to come up with the money.

BTW.. you can send me a private message if you like.

Help!!!!

 

[Michael Wechsler]

My understanding of the bad check laws in most states are that the drafter of the check needs knowledge that the funds would not be available at the time of the drafting. You should know that there are times when guerilla tactics take place when one party is represented by an attorney and the other party is not. They will use your fear against you in order to squeeze you as much as possible. You seem to have some money/equity and it might be wise to invest it in an attorney here. There is a good deal at stake and being able to read contracts well could reap rewards far beyond your investment.

What I don't understand is how the dealership could allow you to take the SUV out of the lot without receiving the downpayment. If this was a courtesy extended to you then it might be their problem.

I don't have a copy of your contract so I cannot say for sure whether you have remedies here. There might be, but cannot say for sure, a clause which is called a "Force Majeur" clause or "major force." This typically provides for remedies when there are disasters or "Acts of G-d" that may occur and which neither party should be liable for these unforeseen events. However, you did close the deal after 9/11, which may or may not have an effect.

I think you would wise to make the dealership think that you are not scared. You may also want to point out that you will be good for the money and you wonder just how many more SUVs are going to be purchased in this economy. News also spreads about those business who are not accomodating, especially due to the 9/11 victims which you unfortunately are in financial respects...

If it makes you feel any better, I'm working pro bono for victims of the WTC tragedy and many of the cases I'm dealing with are people who bought/sold or rented/leased property in the immediate area. Some of the properties were virtually demolished, suffered tremendous damages, terrible air quality, etc. Putting things into perspective, imagine someone buying a $500,000 apartment on 9/1 for a beautiful view of the WTC? And unfortunately it could even be worse than that, as we all know too well.... Be upbeat and don't panic.

 

[CLWELCH]

Thank you so much for the reply. I do feel better already. That is very admirable of you to help those victums on Pro Bono. Can you practice Law in Indiana? Or do you have any associates in Indiana that you could refer to me? Of course it would be great if they were pro bono given our current financial status. But even if they are not, I agree with your comments that we should have someone lined up just in case.

I will continue to post updates as events occur. So far we yet have not heard anything fom them. In fact the silence is a little scary. Although we are going to take your advice and not be to fearful when we reply to whatever they attack us with.

In reference to the contract, as far as my non legal vision can see, it is just the basic sales agreement that states we purchased the vehicle for the price that is inclusive of the down payment for which we wrote the draft. If you think it could help in terms of the advice you are giving and would like to see it I would be more than happy to fax it to you if you respond to my private email address with a fax number.

I also agree that there are merchants that take advantage when these unfortunate events occur. I also know that they are frowned upon legally for doing so, I just hope this is one of those cases where it will make a difference. You are absolutely right that we, as the drafters of the check, were confident that the funds were available at the time we wrote the check or we never would have wrote it. Surely he ought to be able to see that we are more creditable persons than someone who would try this kind of a scam.

Afterall, the dealership felt that we were creditable enough to let us drive away with the vehicle for a couple of weeks, on just checking our employment and references, before we even officially approved for the loan or put the deal in writing. Yet he wants to convince a court, I am assuming based on his last comments to us, that we would diliberately write a check for which we knew we had no money. To me this is not even logical.

Especially in lieu of the fact that he could see that we had paid off and already owned two vehicles. One of which is a 6 year old Mercedes that I drove to the lot and he was interested in himself because it is a classic year in mint condition. My husband also spent a great deal of time with the manager discussing local politics apparently they know a lot of the same people.
So he knows we are not the average scam artist type we are simply to stable to even be considered as such. But the fact remains that he will not accept a payment plan offer to cover the check or the other truck as a trade in, he threated to sue us for check deception. Although we are still waiting for the lawyers letter he said we would receive.

Again, thank you so much for the knowledge you shared. Please let us know if you or anyone you know that services Indiana is available to see details of this case. Our fears are now turning to anger toward this dealership, because we feel they are the ones trying to scam us.

BTW... The name of the dealership is Family Auto Mitshubisi in Indianapolis, this is so other consumers can be aware of these less than honest merchants. (that is putting it mildly)

I will keep you all updated.

 

[Michael Wechsler]

You are welcome. A couple of comments.

I'm not sure what your financial situation is. It might be challenging to provide pro bono services if you do have a good amount of money which is unfortunately tied up in equity. Many of the pro bono services are usually provided to people that are indigent or the only equity they have is a small home. You should feel good about your situation because you seem to have assets to deal with this issue that seems catastrophic. Imagine the people who, with their life savings, bought expensive $500,000+ co-ops with a view of the World Trade Center just days before the tragedy. Everything is perspective and you should feel pretty good about your situation since you will end up on your feet...

Additionally, I'd like to differentiate about some of the tactics involved here as to what is right and wrong. If a merchant chooses to stick the terms of the contract to the other party, while being a jerk it is certainly that merchant's right to do so. It may not be good for business. However, using an attorney to make false claims to intimidate the other party into submission is out of the bounds of fair play. You also need to differentiate whether it is the attorney or the client/merchant who is playing out of bounds and not always does that action of one impute to the other.

Most cases never go to court and are settled. The threat to go to court is frequently used to intimidate the consumer. I don't doubt that the threat to go to court to enforce a triple damages section of a statue here is not logical and is an empty threat. That said, it doesn't mean that the merchant might not go to court to obtain a judgment to obtain payment from you through collection methods.

We can recommend an attorney in Indiana if you send a private e-mail. Given the issues involved here, however, you may also want to think about what you would consider an appropriate settlement. Remember, the dealer doesn't want to share in your misfortune and only cover the expenses that they expected to be covered. For example, simply returning the vehicle to the dealer won't be sufficient -- the dealer now has a used vehicle that is worth thousands less than when you received it. To simply extend you time to pay it back is also difficult -- his deal to you was also probably based upon his expenses and now you are asking him to foot the bill for several months at his complete expense. Additionally, despite the drop in price, he might have purchased this vehicle at a higher price before the drop and based his price on cost -- thus a plea to lower the price is also not incentive because you are asking him to foot the bill and eat the loss of your misfortune. Additionally, why would the dealer have incentive to lower the price after he made a deal and delivered?

What makes this case difficult is that it seems you have assets and they are known to the dealer. It would seem that your probable solution is to see if you can escape from the contract, but I think that might prove to be difficult, especially since you proceeded on the dealer's terms without much negotiation. The dealer is probably thinking that if it is a choice between who should part with assets to deal with your misfortune then it should be you. Think about these issues and see where you can end up reasonably if you were in the dealer's shoes... that may help you reach settlement. May not make you completely happy but you are in much better position than most and losing a few thousand dollars in this tragedy pales with regard to so many others who lost everything...

 

[CLWELCH]

I just read your comments and again I express my gratitude for your legal wisdom.

Please be reassured that it does not take this unfortunate incident that happened to us to present the enormousey of the losses of the victims you represent and many others victims of the WTC tragedy. We feel it in our hearts and had long before we began to communicate. As I must reiterate how ill it makes me to know about all the challenges they will face in addressing their terrible losses that were incurred by this tragedy.

We have responded through many different venues such as religious organizations, our employers efforts, and national foundations in terms of our support for all the WTC victims. We also have suffered the loss of life of someone who is very dear to us. So we can relate on a very personal level. In fact although we are not in good financial standing, with real reason for concern ourselves, we have offered our financial support, physical and business resources, and many, many prayers and thoughts to those who were directly effected by the tragedy.

Please understand that this nonetheless means that we are just unhappy about our situation, but as I explained our concerns are we do not have the money to repay in one lump sum. In terms of assets we have offered the 93 truck, the 92 Mercedes minus a debt of about $6800 worth of repairs that would have to be paid in full prior to obtaining clear title, both of which the dealership turned down. Our saving account has been emptied with the exception of the $1000. We gave them already. Our checking account is in the negative balance. We have no available balance on any credit card that could be used for repayment. The equity we have in our home because of the 4ok we paid at close is still only 10 percent of a 10/10/80 loan with 2 sub prime lenders and prepayment penalties. The loan is only 3 or 4 months old and as I previously explained our FICO and credit is way below acceptable limits to refinance for equity. I have tried that already. Even if we sold the house that could take forever and still by the time we paid a realtor and selling expenses there would probably not be enough left to even pay the $5000.

Please know that we are financially distraught. If there were any way to pay the money in one lump sum we would have already done so, regardless of our beliefs of right or wrong. I am not at all confident that we can land on our feet. The dealership has rejected every offer we have made so far and we have offered everything that we can.
Actually in the best-case scenario this will cause further devastations to financial status, our credit, and possibility of legal prosecution. So please understand this is not just a matter of us not being unhappy. If only it were that simple! In thinking through the eyes of the dealership as you suggested, I would think that they would legally pursue through judgment or check deception or something of a legal nature as the fastest remedy for repayment. That is why we are so concerned.
I think it is a safe assumption that the vehicle we purchased was not purchased at a higher cost by the dealer than the ones that were discounted for sale. Especially considering our is an even older year with more miles than the ones that were sold for thousands less. I believe that they were doing what is typical practice for dealers pushing up the price for extreme profit.

We really are financially burdened with no answers for immediate resolution. I appreciate the referral of the Indiana attorney; I will send a private email for the request. We still have not received any notice from the dealer or his attorney.

We really appreciate your comments, and we appreciate even more the pro bono work you are doing for the victims of WTC.

 

[Michael Wechsler]

I understand your message completely and am glad that you understood where I was coming from. It did not seem that you are backed up against the financial wall...

In terms of discussing this I think that the best thing I can say is to tell you the way I would look at the situation. It might not be what you want to hear but you might need to look at what you can do to obtain a settlement. I don't think this will ever go to court but, if it did hypothetically, you would probably not win any sympathy with a judge by pleading deep financial crisis. An answer you might likely hear is that if you were so close to the end of the financial rope, you should not have bought a new SUV.

The problem with offering the Dealer your old cars is that he doesn't want to take on your problem vehicles -- he wants his money. Additionally, he wants the advantage of the benefit of his bargain -- you could have refused to buy the SUV at the price he sold it to you and lowered the price but you made the deal.

So... what could be the solution? This is where it gets into the strategy of settlement, an area that is so very important in law, possibly even more than court since most cases are settled and the best results are those which are settled early with acceptable returns. You may, in fact, have put your back against the financial wall. If you are willing to part with your 92 and 93 vehicles then you might want to sell them and, as part of the proceeds, have them paid immediately to satisfy the lien. That might get you towards the money you owe the dealer. You may also want to talk to the dealer and state that a lawsuit will do him no good since he won't be able to squeeze blood from a stone and that he won't be the only creditor. I think his attorney knows this and they won't just come after you if they know that there won't be any realized gain from doing so. You might be able to drive a settlement by stating that you might be able to obtain cash if he drives down the price somewhat. If he does not agree, then he can stand in line with the rest of the creditors... I'm not sure what can be done here. An attorney will also cost money and might tell you something similar -- there doesn't seem to be a dispute with the deal you made, just that you find yourself being unable to complete the deal.

Thank you for the kind words, support for our efforts here, and I wish that I could truly be more helpful.