Can I be sued for breach of contract?

Asked about 4 years ago - Gainesville, FL

I live in Florida. Last month my husband and I bought a 2005 Prius from a twenty-something girl who wanted to use her boyfriend's diesel car as her primary form of transportation.

She wanted 9,500 for the car.

We gave her a cashier's check for 5,000 at the time of initial purchase and I drew up a little document that both she and my husband had notarized.

We have the title of the car in our name and she has 5000 and this notarized document.

I now can not get in touch with this girl. I've tried calling, e-mailing, texting and she does not respond.

I want to make a $500 payment to her and I don't know what to do.

What if I can't get in touch with her? Will she be able to file a claim against us even though I'm trying to pay her?

Thanks in advance!
PriusLover

Additional information

For value received, the Borrower hereby unconditionally promises to pay to the order of Lender the sum of $5000 in the form of a cashier check June 23rd 2010 towards the total sum of $9500.00 owed.

Payment Terms: Borrower will pay monthly payments each at uninterrupted monthly intervals no later than the 30th day of each month, starting on the 1st day of August 2010 until January 30th 2011. At this specified time (01/30/2011) the Principal amount will have been paid in full.
Prepayment: The Borrower may prepay this Note in full or in part at any time without premium or penalty.
Acceleration of Debt upon Default
If the Borrower fails to make any payment when due for whatever reason and the Lender provides notice of such failure, the Borrower must effect payment of the amount due within 30 days, failing which the Lender can demand immediate payment of the entire outstanding Principal amount.

Attorney answers (3)

  1. Donald A. Niesen

    Contributor Level 11

    Answered . The lawyers above give good general advice, so I agree with them.

    The keys to protecting you and your husband are in the details of your written agreement AND whether you can later show you took reasonable steps and measures to perform your duties under the contract. In order to protect yourself from a later lawsuit in Florida for an allegation of Breach of Contract, you should carefully document your performance (actions) so that you can later ( if you have to ) clearly demonstrate that you did NOT breach the contract. This will also protect you from any accelleration of the note or payments.

    PRACTICAL TIPS: Here in Florida, most courts will rule that you tendered payment if you mail (certified mail, green card receipt) a personal check to the last known address of the seller. Your green card receipt will show the mail got there and who signed for it. Once the personal check clears your bank, you should be able to cheaply obtain a copy of the front and back of the check, which is pretty good evidence of who presented or cashed the check, and into what bank account it was deposited. If it is cashed for U.S. currency, it should include identifying info of the check, such as FL drivers' licensce number, or whatever ID the bank tellered checked to make sure the presenter was the person in the "Pay to the Order of" section of the check. If all these attempts to make payment fail - meaning it is still impossible to get her the money - you should take steps to make sure all the money due is segregated and available for her whenever she finally makes herself known. The above lawyer's reference to an ESCROW account is one example. One way to do this is to deposit the funds with an attorney, then notify seller through the above means that the funds you attempted to pay her are now waiting for her, held "in escrow" at a specific location, and giving her the instructions on how to collect the funds.

    If you need help on this in the Gainesville, Florida area you can contact me and my firm.

  2. Andrew Daniel Myers

    Contributor Level 20

    Answered . Very odd that the girl is making it difficult for you to pay. My guess is that your concern is that she will spring out of nowhere and claim that she didn't get her money and then attempt to accelerate the note, demanding full payment.

    Your summary leaves out one important detail which most notes include, which is where payment is to be made, for example to XYZ Bank, at a given address. The "little document" should indicate where and when to send the payment. If you have mailed all payments when due and the mail has come back, this would provide your defense to acceleration of the note. If you have the title you should have her address. Mail the checks there.

    Without all of these details, my best advice is to keep track of your efforts to contact the girl and be prepared to pay her all of her past due payments. No attorney should ever provide advice based on a document without reading the entire document, and so this response is simply to give you a frame of reference.

    If you find my answer helpful, please click the ‘thumbs-up’ tab below. Thank you.

    This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.

  3. Joshua Hadan Brockman

    Contributor Level 9

    Answered . Arguably, by the terms of the agreement that you posted (reproduced below), there is a notice provision where you must pay all past due payments within 30 days of notification by the seller before you are in default. As a practical matter, you should consider looking her up address on publicdata.com and sending the check to a physical address on her driver's license. You could also set up an escrow account and pay the funds into that so that the funds will be available and held in trust for her.

    Acceleration of Debt upon Default
    If the Borrower fails to make any payment when due for whatever reason and the Lender provides notice of such failure, the Borrower must effect payment of the amount due within 30 days, failing which the Lender can demand immediate payment of the entire outstanding Principal amount.

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