I've hired an attorney to evict my tenant in a non payment action, and at at the first hearing the tenant gave the attorney a partial rent check, I guess to show good faith. The attorney said he was mailing it to me but I've never received it. For several days he's been telling me he's going to find out what happened to it from someone in his office, but he never follows through. I don't believe he cashed it himself, but it's been almost two weeks. I'm afraid the tenant won't replace the check once he realizes he can't stay even with the check, and I will lose the money which is considerable.
My question is if the attorney lost the check, and through his actions or negligence I lose this money, do I have any recourse against the attorney to recover my funds? Thanks for any replies.
Landlord / Tenant Lawyer
Whether the check was lost or mislaid makes no difference as the lawyer and the tenant likely signed an agreement ( a Stipulation) in court that memorialized the tender of partial rent made by the tenant and identified the check by number date and amount.
The tenant has not lost this money if the check is not cashed. If the tenant knew the check went awry the tenant would have had time to place a stop on the check. Of course, the cost should not be borne by the tenant. It is up to you and your lawyer to decide which of you will take the charge for the tenant needing to place a stop payment order on the check.
The tenant may replace the check. The court will allow for this relief but your lawyer has to deal with the issue of the check. The tenant will likely have enough time to come up with the remainder of the rent due in order to keep the apartment.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.