Legal Question in Real Estate Law in California

In California, if party "A" takes possession of checks made out to and intended for another party "B" (in Washington, D.C.), and party A claims to have sent the checks in the mail to an agreed upon address in D.C., but the letter never shows up and party A claims it was "lost in the mail" but has no proof the letter (with checks) was ever sent, is party A responsible for the lost letter and do they have any responsibilty to recover or replace the checks?


Asked on 11/20/09, 5:32 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I think it will depend upon A's original role here. If the checks came into A's custody quite accidentally or mistakenly, and A had no role in a transaction, then A's duty to use care is very limited, and forwarding by ordinary mail without registration, certification or request for delivery confirmation or return receipt may be entirely excusable.

On the other hand, if A was in any way receiving the checks by prarrangement, agreement, or some kind of role in a deal, even if the checks should have been sent directly to D.C., and especially if A were aware that the items were checks (because they were hand-delivered, not in envelopes, or otherwise, A may be deemed to have had a duty to exercise greater care.

Now, the question of amount of liability. Checks are not cash, and their loss or non-delivery does not equate to liability for the face amount of the checks under any situation. Both the payor and the payee have some responsibility to mitigate possible damages. Whether the checks have been fraudulently negotiated may be an important fact here, as may whether the banks involved were told to 'stop payment' or whether they negligently honored forged endorsements.

My hunch is that whether "A" is an innocent bystander or a knowing player in this scenario will be important, but there are even more important issues as to why the checks were mis-directed in the first place, and whether all concerned have acted responsibly to prevent loss by fraud by notifying the maker and the bank(s).

There's a lot more to this that needs to be known to predict an outcome in court, but basically I would not look to "A" to make good on the checks under the facts given to me.

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Answered on 11/25/09, 9:29 pm


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