I'm trying to negotiate my debt down with my creditors. If I send a check marked "paid in full" along with a letter stating that I think it is a fair payoff amount, and if they cash it, they accept it as payment in full and the debt cured, will that be legally binding? I would also note same on the memo portion of my check. Please advise. Thank you!
Adding a restrictive endorsement, such as “paid in full,” to the back of a check payment to a creditor in an attempt to create a legally binding settlement agreement is a tricky proposition that can contain numerous pitfalls. Whether or not a restrictive endorsement would be binding on the creditor or collection agency depends on numerous factors, including your state laws, including your state’s version of the Uniform Commercial Code (UCC), your contract with the lender, your intent, and the creditor’s actions once it receives the check. Like many aspects of contract law, there is no simple answer to your question. To read more about using restrictive endorsements to settle debts, you can review the information on the following Web site: Using Restrictive Endorsement to Settle Bad Debts.
A few key problems arise for consumers trying to use restrictive endorsements to create binding settlement agreements (also called an “accord and satisfaction”) on delinquent debts.
First, some states greatly restrict the use of restrictive endorsements, which could cause problems if the creditor challenged the consumer’s claim that the creditor’s cashing of the check created an accord and satisfaction.
Second, many consumer credit contracts specifically state that the creditor will not recognize any restrictive endorsements, and that it will treat any restricted check as a regular payment; if your original agreement contains similar terms, it could make enforcing a claim of accord and satisfaction more difficult.
Finally, all states (to my knowledge) have adopted an addition to the UCC called “Safe Harbor,” which allows creditors who negotiate a restricted check to cancel acceptance of any agreement created by the restrictive endorsement by refunding the amount of the check within 90 days. The purpose of this provision is to prevent problems for creditors created by the increasingly prevalent automatic processing of checks, which can result in a restricted check being negotiated before the creditor has an opportunity to review the terms of the restrictive endorsement. To read more about the “Safe Harbor” provisions of the UCC, read Restrictive Endorsement & Safe Harbor.
Another possible issue which could arise in using a restrictive endorsement to settle a debt is the question of the consumer’s intent in sending a restricted check to a creditor. Some courts have ruled that the use of a restrictive endorsement to pay off a creditor is only appropriate if a previous settlement agreement existed between the parties, or if there is a good-faith dispute between the parties regarding the amount of the debt. In the case of a dispute, many courts have ruled that the consumer must have given the creditor prior notice of the dispute. If you are sending a restricted check only to “trick” the creditor into a settlement, a judge may not support your claim that an accord and satisfaction exists.
Generally speaking, I do not recommend consumers try to resolve debts using restrictive endorsements. Most collection agencies will settle outstanding debts voluntarily, so there is often no need to try to force the agency into accepting a settlement through the use of a restrictive endorsement. If you reach an agreement with your creditor, you should have the creditor send you a written settlement offer before you make any payment. Working with your creditor will result in the account being resolved on amicable terms, which should reduce the likelihood of the creditor challenging the agreement in court. Keep in mind that you are trying to permanently resolve this debt and to save yourself money, so you do not want to create a dispute with the lender that may force you to pursue legal action, which is often time consuming and costly, to assert your claim of accord and satisfaction.
To read more about the options available to assist consumers who struggle with debt, see the Bills.com Debt Help page. I wish you the best of luck in resolving this debt, and hope that the information I have provided helps you Find. Learn. Save.