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ladivabella · Jun 29, 2007, 06:08 PM

I purchased a condo for my mother. We later noticed that her washing machine was not working. I called a repair man (out of the phone book) who came and never gave us an estimate. He told us the machine was on his last leg and would not last, but that he would replace a "part" (which he did). Once his work was complete he gave me a bill for $196.00. I was in such shock, I wrote the check. On my drive home I decided to put a stop payment on my check. The VERY next day, I sent them a certified letter with a new check enclosed for $98.00 (half of what the bill was for). I did enclosed a letter with a copy of a new washing machine receipt that I had to purchased due to the imment death of the old one. The letter stated that if my check was cashed our business was complete and that I felt this was a more amicable solution. My mother has a heart condition and can not deal with stressors in her life. I was sent several letters reference fees being accrued for non payment. NOw I am being taken to small claims court. I received a letter for mediation. Do I have any chances of wining this case?:o

landlord advocate · Jun 29, 2007, 07:43 PM

I doubt that you can win the case. You permitted the repair person to complete the work and you paid him in full which completed a contract. You will probably be responsible for court costs. The case may also appear on your credit report. You didn't say that the machine broke shortly after it was fixed, or that the company did not honor a guarantee. You made the decision to purchase a new machine, is that correct?

Justice Matters · Jun 29, 2007, 08:13 PM

Unilaterally sending a creditor a cheque with a notation that if it is deposited the matter between the parties is concluded generally does not work. Courts have repeatedly declared that unless the creditor explicitly agrees in advance to a final settlement any payments issued by a debtor may simply be applied to the balance the owing.

Furthermore, it is very difficult to oppose a claim based on a NSF or "stop payment" cheque since cheques are negotiable instruments that are assumed to have a face value that can be endorsed to a third party.

Your best course of action would have been to obtain a quote in advance of approving the work. Failing that the only chance you may have to defeat this claim is if you can show that the parts and labour are grossly overpriced but quite frankly given the amount of money involved it is probably not worth the time and expense fighting this lawsuit. We recommend an immediate settlement with the creditor.