Your understanding is correct on the dispute. But Ohio did change the laws
and just adding those words to a legitimate dispute will have no effect.
In order to effect a Accord and Satisfaction there must be a dispute over
goods or services, not just someone trying to pull a fast one - strike one
against my wife (as you stated).
Second, in 2000 the Ohio SUPREME court upheld on appeal the 1303.40 which
governs negotiable instruments does NOT apply to maritial disputes. In the
case below a guy wrote his wife a check for 500,000 when he owed 625,000 and
marked it payment in full (he whined he was out of money). He lost. She
cashed the check and asked for the rest.
Wyper v. Wyper, 2000 OH 47406 (OHCA, 2000)
[20]
As to appellant's claim that the trial court should have applied R.C.
1303.40 to this case, we find no precedent under Ohio case law for such an
application, nor are we willing to open the door to the application of
commercial law to a divorce case. As the trial court stated, the Ohio U.C.C.
states that its purpose is "to simplify, clarify and modernize the law
governing commercial transactions." [Emphasis added.] We note that the
Supreme Court of Ohio declined to apply commercial law to a dispute arising
from a divorce decree in Holloway v. Holloway (1935), 130 Ohio St. 214. In
holding that an order for the payment of alimony is enforceable through a
contempt proceeding, the Holloway court stated that "[t]o hold otherwise
would be to reduce the status of a divorce and alimony decree to that of a
commercial transaction. Marriage, however, is not a matter of commerce, nor
is it merely a contract between the parties." Id. at 216. Accordingly, we
find that the trial court did not err by failing to apply R.C. 1303.40 to
this case and appellant's first assignment of error is not well-taken.
If I understand your post, there is no dispute about the amount owed. If
you and your ex agree on the amount owed and your ex added a note to a
check
stating "payment in full", that doesn't equal a dispute. Your
understanding
of the "bone fide dispute" rule is backwards. The "payment in full"
check
can operate as an accord and satisfaction only if there is a dispute
concerning the amount owed. If you agree with me that there is no such
dispute in this case, then traditionally you would be free to cash the
check
and sue for the balance. But Ohio has changed that rule by specifying
words
that must be added to the endorsement.
The following is from:
http://www.creditinfocenter.com/debt/CanCreditorSue4SettlementDifferences.shtml
I didn't check the accuracy of it, so you must verify that this really
does
state Ohio law before you rely on it.
"Once a creditor deposits or cashes a full payment check, even if she
strikes out the words payment in full or writes "I don't agree" on the
check, she can't come after you for the balance. The states in which this
law is enforced:
Arkansas
Colorado
Connecticut
Georgia
Kansas
Louisiana
Maine
Michigan
Nebraska
New Jersey
North Carolina
Oregon
Pennsylvania
Texas
Utah
Vermont
Virginia
Washington
Wyoming
"Some states have modified this rule. In the following states, if a
creditor
cashes a full payment check and explicitly retains his right to sue you by
writing "under protest or without prejudice" with his endorsement, then he
can come after you for the balance. But those exact words must be used. If
he writes "without recourse,"communicates with you separately, notifies
you
verbally or writes on the check that it is partial payment, it is not
enough.
Alabama
Delaware
Massachusetts
Minnesota
Missouri
New Hampshire
New York
Ohio
Rhode Island
South Carolina
South Dakota
West Virginia
Wisconsin
McGyver
