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What happens if an eviction attorney loses a tenants rent check that was given to him to give to me?

New York, NY |

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.

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Attorney answers 1

Posted

Dear landlord:

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.

Good luck.

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.

Asker

Posted

Thank you so much Steve but I'm not sure I understand your reply. Are you saying that the tenant has an obligation to reissue this check when his stop payment is paid? Can the tenant still back out of reissuing the check if he's assured that his other check is voided, or does the court require him to make good on the check? I'm so stressed out over this. It would make me feel so much better if I know that this money will go to me after everything is worked out. I'm just afraid the tenant will say he doesn't have the funds any more, or give some other excuse not to pay it. If that happens wouldn't my lawyer be responsible as he lost it and I don't have it because of his actions? Thank you so much again for responding.

Steven Warren Smollens

Steven Warren Smollens

Posted

OK. You have an attorney. The attorney could have solved this simply by paying you the amount of the lost check. But the tenant should not issue a new check with an outstanding check lost in the wild. This is relatively simple and should not have taken you to a public forum. If the attorney informs the tenant that the check issued was lost and the cost of cancelling the check will be borne by you and or the attorney the tenant should issue a replacement check. The tenant could argue that "payment" was made when the check was given to your attorney but the written agreement probably provided that the check tendered was "subject to collection." Obviously if lost the check cannot be collected and should be replaced. The tenant will likely replace the check. But you have got to work this out with your attorney or after too much delay; the court may let the tenant off the hook.

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