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What funds can I use to satisfy damages claim? - Landlord Forum thread 312524

What funds can I use to satisfy damages claim? by OK-LL on January 17, 2014 @14:44

                              
Tenant wrote a personal check for November's rent and moved out November 30. Check bounced and tenant gave me another personal check for the November rent which paid fine (no, I don't normally do that but I had plenty of time to sue if I needed to). Tenant did not collect his NSF check and I have it still in my hands. Tenant's SD does not cover the damages his dogs did to my carpet plus the other cleaning and damages he left behind. The remaining amount tenant owes for damages is a little short of the check I have in my hands. So, in your experience, can I cash this check and use it for damages since he left it in my possession? It does not have anything written on it noting that it was originally a rent check.
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Re: What funds can I use to satisfy damages claim? by Katiekate (New York) on January 17, 2014 @14:47 [ Reply ]
I do not believe your bank will take that check again.

They usually try 3 times before stamping it NSF. Once it has "bounced" it stays bounced.
Re: What funds can I use to satisfy damages claim? by P-Bone (NY and OH) on January 17, 2014 @14:59 [ Reply ]
You cannot try to cash that check. The tenant has satisfied all payments to you at this point in time. You would be required to sue for damages above and beyond the deposit amount in order to attempt to recover those costs.
Re: What funds can I use to satisfy damages claim? by Bill on January 17, 2014 @15:08 [ Reply ]
Cash the check. If the tenant sues you for the amount of the check you can counter for the damages that are greater than that amount. You can also ask for two months rent for breaking the lease without notice. Did you get a settlement letter out?
Re: What funds can I use to satisfy damages claim? by OK-LL on January 17, 2014 @16:18 [ Reply ]
Tenant has had the SDSS in hand since Dec. 30 and has not paid the amount due yet, so I'm assuming they aren't going to. BOA only deposits the check once and bounces it NSF, but I can continue to take it to the bank it was drawn on to attempt to cash it, for six months after the date it was written. I've submitted this question to a legal forum too, to see if there's any legal reason I cannot use all funds in my possession to satisfy the debt. I'll do a little research myself. If I find a definitive answer, I'll post it.
Re: What funds can I use to satisfy damages claim? by Anonymous on January 17, 2014 @20:38 [ Reply ]
It all comes down to this: Do you want THEM to owe YOU or do you want to get the money you're due? Who cares if they sue you (which they won't). It's money that you would have normally sued them for anyways. . .skip the middleman. If they sue you (again they won't), who cares you're just giving money back (that you would have had to spend anyways)they already gave you. No loss from you.
Re: What funds can I use to satisfy damages claim? by Anonymous on January 18, 2014 @03:49 [ Reply ]
If your bank has put the check through three times, that is all they can do. Next time you are at your bank during business hours, you can verify that they have tried to put it though three times.
Your time may be better spent over at small claims court. Make sure you have the work address on the tenant.
Re: What funds can I use to satisfy damages claim? by OK-LL on January 23, 2014 @11:43 [ Reply ]
After some reflection and research, I'm afraid my using the check to satisfy my claim against the tenant for damages might maybe fall into the definition of embezzlement (using funds entrusted for alternate purpose). Since tenant has a job he's not likely to leave, I filed in court for the damages and I'll just garnish his wages; it's a pity because it will cost him more (costs of the action plus attorney fees, in addition to the actual cost of damages), but so be it!
Re: What funds can I use to satisfy damages claim? by Nobody Important (WA) on February 5, 2014 @09:56 [ Reply ]
What you are contemplating is unethical and probably illegal and your now ex-tenant can probably sue you for treble damages and he/she will probably win.

You cannot use monies given for one reason for another reason. You cannot use the security deposit for unpaid rent. In some states you can be sued for damage, three times the amount withheld.

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