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Past due car payment, sent letter with payment plan and disclosure on check-- bank disputed and sent acct to collections.

Fresno, CA |
Filed under: Debt

I pursued UCC3311 and the bank disputed saying it doesn't fit my situation. This part in particular: "Please also note that UCC § 3311 was enacted in 1992. This post-dates the 1987 enactment of California Civil Code § 1526, which allows a creditor to cross out a check's language purporting to create accord and satisfaction, cash the check, and still be entitled to go after the difference. A recent California court has resolved the conflict between UCC § 3311 and Civil Code § 1526. See Directors Guild of America v. Harmony Pictures 32 F. Supp.2d 1184 (C.D. Cal 1998), holding that the later-enacted statute, CC § 3311, controls, and a creditor's cashing of a check tendered for settlement effectuated an accord and satisfaction." Sending payments as outlined, need 3 weeks to bring acct current.

Attorney Answers 1

Posted

I don't see why Commercial Code section 3311 doesn't apply to your payment plan, and apparently they haven't given you a reason or authority that says so either. I'd keep paying as agreed and put the restrictive endorsement on each payment check. If you're current in 3 weeks that's too quick for them to win a lawuit, although they can presumably bring one, but I think you'd have a defense to any claim of breach since they are accepting your checks.

I think I've answered at least 5 of your questions, please click on the "helpful" thumbs up icons for these questions (and any others you find helpful) so I get some points for this.

Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.

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