Posted by desktopfull on 3/30/09 7:01pm
Msg #282728

You won't believe this!!

I did a closing Jan 22, 09, on March 1, 09, TC calls and says that they mistakenly mailed me two separate checks for the closing. They requested that I return the one check that they put a stop payment on and deposit the other one. Today I called and told them that I had not received either check and to please send another one. They told me that I would have to sign an affidavit that I hadn't received the checks and return it to them first and then they would issue a new check. I got the affidavit and #4 states:

"4. I hereby agree to release and hold harmless (the company name), its agents, representatives, employees and their respective affiliates from any liability arising in or under the Original Check and agree to indemnify (the company name) for any loss or damage which they may incur as a result of any presentment or negotiation of the Original [e-mail address] "

I wrote them back and told them that I would not sign the affidavit with item #4 included since it was the equivalent of giving the company a blank check to come after me for more than they owed me for doing the closing.

As far as I'm concerned this is one rather ingenious scheme to get out of paying NSA's. Watch out, the TC's are working overtime on figuring out how to not pay up for services rendered.

Reply by Linda_H/FL on 3/30/09 7:07pm
Msg #282733

Re: You won't believe this!!...or....

is that their cheap way out of having to pay a stop-payment fee on the first check..

Reply by jba/fl on 3/31/09 8:41am
Msg #282811

No - that is their

cheap way of not bothering to pay the fee for the stop payment and just chalking it up to "gobbled up by mysterious forces of the postal dept. and then spit into the nether regions of outer space to come crashing down on some poor farmers head while he is out plowing his field with poor Nellie the mule after it has made contact with disposings from the jet flying overhead and has crystalized with that offal forming a pattie of its own."

See - shjit happens.
This is more common than not. We have seen the exercise of foolery, stupidity and pyramid power.

Reply by JanetK_CA on 3/31/09 8:14pm
Msg #282915

LOL!! Love the quote and your summation!

And I'm wondering where it came from, just for curiosity's sake...

Reply by jba/fl on 3/31/09 9:03pm
Msg #282929

Re: LOL!! Love the quote and your summation!

From the top of my "thinking as I go" portion of my brain. Watching TV low these many years, listening to 2 boys growing up with the most far-fetched stories one can imagiine and expecting to be believed (them) and wanting to believe (me) and knowing that if I did then I would be on the falling end of the limb that I was sawing/pruning to relieve the pressure for the poor tree. See, you just start typing, and don't stop even to breathe! Easy.

Reply by JanetK_CA on 4/1/09 1:55am
Msg #282951

Re: LOL!! Love the quote and your summation!

Well, you DO have a way with words! (And apparently the acorn(s) didn't fall far from the tree!)

Reply by Lee/AR on 3/30/09 7:12pm
Msg #282734

Oh, yes, I'd believe it. Looks like someone with 2 functioning brain cells drafted this. If they stopped payment... it's not a problem. If they didn't, it's not your problem. I don't think it's a scheme to not pay, it's just a lack of thought and I doubt they're bright enough to think through such a 'scheme'.

Reply by desktopfull on 3/30/09 7:16pm
Msg #282735

And just why should I have to pay for a stop payment for a check they claim they mailed, and that I never received. Item #4 in the affidavit would allow them to reduce my payment for the amount of their stop payment fees at the very least.

Reply by Pat/IL on 3/30/09 8:19pm
Msg #282756

Re: You won't believe this!! n/m

Reply by Pat/IL on 3/30/09 8:25pm
Msg #282759

Aaaaaaargh!

Second time today I hit the Post button when I meant to hit the Cancel button. I give up. Get this keyboard away from me, I can't be trusted with it!

While I'm here, I'll ask the stupid question I originally decided was too stupid to ask. Here it is, for your entertainment: Did you ask them to verify the address? If the check was written on check writing software, and the address is on the check, they should have an exact record of the address they sent the checks to. It just seems cockeyed that both checks would get lost in the mail.

About the affidavit, I wouldn't sign it either.

Reply by desktopfull on 3/30/09 10:06pm
Msg #282776

Re: Aaaaaaargh!

Yes, I verified the address with them. How many times have you heard the check is in the mail and wasn't? Nice stall tactic though, and now they want me to sign a paper that gives them the right to reduce my fee claiming I'm responsible for the cost of the stop payment. Plus now they won't pay at all until I sign this affidavit, how convenient for them. Actually, quite ingenious and all in their favor.

Reply by Pat/IL on 3/30/09 11:10pm
Msg #282785

Re: Aaaaaaargh!

Okay, I'll take my stupid question a step further. What about asking them for a record of your checks from their check writing software, along with an acknowledgement from the bank of the stop payment order(s)? I don't know, just trying to be helpful, as always.

It will probably get you PITA status in their directory, but if you are right, well, who cares?

Reply by MikeC/NY on 3/30/09 11:27pm
Msg #282787

"4. I hereby agree to release and hold harmless (the company name), its agents, representatives, employees and their respective affiliates from any liability arising in or under the Original Check and agree to indemnify (the company name) for any loss or damage which they may incur as a result of any presentment or negotiation of the Original [e-mail address] "

Unless I'm reading this wrong, you have no problem unless you attempt to cash the "Original Check" (the one that went missing). Why would you refuse to sign this? You've asked them to send a second check; they just want to make sure you won't try to cash the first one if it ever resurfaces.

Reply by MichiganAl on 3/31/09 7:21am
Msg #282802

Thanks Mike

I thought I was the only one not seeing any issue.

Reply by ReneeK_MI on 3/31/09 8:03am
Msg #282806

Question, Mike ...

"...for any loss or damage which they may incur as a result of any presentment or negotiation of the Original Check. "



Wouldn't you want the crucial word "any" swithed to "MY"? With "any presentment", doesn't that leave her open to risk, should someone ELSE have that check and do not-nice things with it?

Reply by MikeC/NY on 3/31/09 8:33am
Msg #282809

Re: Question, Mike ...

I'm not a lawyer, so I'm not sure it makes a difference. Common sense tells me that no one could hold me responsible for someone else fraudulently cashing the check unless it could be proved that I was somehow involved - but common sense and law are often mutually exclusive.

I guess you could strike "any" and replace it with "my". It still doesn't give them the right to make you responsible for the stop payment or other charges as some are suggesting - it's just basically saying that if the original check ever shows up, you won't cash it.

Reply by Lee/AR on 3/31/09 10:20am
Msg #282827

Renee, as usual, is right.

One word--any--vs.--my-- equals a big difference in potential outcome. Words do count.

Reply by PAW on 3/31/09 12:59pm
Msg #282849

I agree, Mike.

I didn't see anything wrong with the wording either.

Someone posted about being liable if someone else cashes the check. IMO, that is not a worrisome point since logic and common sense says they can't hold you responsible for something you have no control over. Liability can only reach so far.

Reply by desktopfull on 3/31/09 9:00pm
Msg #282926

Per my attorney, that part of #4 that states

"....agree to indemnify (the company name) for any loss or damage which they may incur as a result of any presentment or negotiation of the Original [e-mail address] "
leave me liable for anyone that got possession of the check and let's say they decided to alter it and a check cashing place cashed it for more than the original value, if I sign that affidavit, I have to pay the company back. Thanks, but no thanks. Words mean things "any" means just that. You really should be more careful with interpreting the liabilty you incur when signing any document, especially a notarized affidavit. Yeah, the company wanted the affidavit notarized, that sent up red flags in my book and I had my brother (the attorney) read it and he immediately told me not to sign under any circumstances.

Reply by MikeC/NY on 3/31/09 9:13pm
Msg #282934

Re: Per my attorney, that part of #4 that states

"....agree to indemnify (the company name) for any loss or damage which they may incur as a result of any presentment or negotiation of the Original [e-mail address] "
leave me liable for anyone that got possession of the check and let's say they decided to alter it and a check cashing place cashed it for more than the original value, if I sign that affidavit, I have to pay the company back. Thanks, but no thanks."

That would be fraud on their part - and you would have a criminal complaint against them. And I'm not sure how they could cash it for more than the original value - I think you may have a lawyer with an overactive imagination...

In reality, all they're asking you to do is not cash the original check if it eventually shows up. Do whatever you're comfortable with - it's your paycheck...

Reply by Linda_H/FL on 3/31/09 8:44am
Msg #282812

Re: You won't believe this!!..How about this?

At the end of that paragraph, or as a new paragraph, print in "In addition I further understand and agree that xx company will put a stop payment on the aforementioned check at their full cost and expense, and will indemnify and hold the below signed contractor harmless from any fees and costs incurred as a result of said stop payment".

Reply by MikeC/NY on 3/31/09 9:43pm
Msg #282942

Re: You won't believe this!!..How about this?

Yeah, you could do that - but is it really necessary?

It would be nice if an actual lawyer weighed in on this... I can't imagine that signing off on this would make someone personally responsible if some scam artist somehow managed to get hold of the missing check and then decided to kite it and cash out for 10 times more than the check was written for...

Reply by desktopfull on 4/1/09 5:10pm
Msg #283057

Re: You won't believe this!!..How about this?

Mike since that is exactly what #4 is saying, why is it beyond your imagination that they would absolutely enforce the wording of the notarized affidavit. #4 makes me completely liable and my attorney is not over exaggerating the consequences for signing the document.