Offer of settlement from other party...

Is there anything written on the back of the check? Did the defendant write anything like "In ful and final settlement?" Was there a letter or note which accompanied the check? If so, what did it say? Was there a letter sent a couple of days before the check that said the check was coming? If so, what did it say? Technically, legally, in order to create a binding settlement by cashing the check, the defendant was required to send you a letter in advance that he would be sending a check and that if you cashed the check, that it would constitute a full and final settlement and waiver of all your claims. That ought to be the law in small claims court, but sometimes it is ignored. One risk of small claims court is that the plaintiff has no right to appeal, even if the judge gets the law completely wrong. In theory, if the defendant did not do any of the things listed above, you can take his money and continue your lawsuit the for the 2/3 balance he still owes you. At the same time that you cash the check, send the defendant a signed letter, not an email, saying that you are accepting his partial payment in partial satisfaction of what he owes you, state how much is still owed, and that you will continue your lawsuit to collect that amount still owed. If you appreciate this free advice, please remember to refer me to anyone you know who needs a lawyer. Referrals are still our best source of business. My firm and I are described at www.sackrosendin.com. Do you have a revocable living trust to avoid probate, instead of a will? Probate takes too long, is expensive, and is annoying. Save your family a lot of trouble by having a revocable living trust. Some people refer to it as a living will. Revocable means you can change it, add and subtract property from it, and even cancel it completely, whenever you want. For $1500.00 I write such a trust, plus a back-up pour-over will to cover any property that somehow doesn't make it into the trust, and convey one parcel of real property to the trust, usually the family home. Dana Sack Sack Rosendin, LLP One Kaiser Plaza, Suite 340 Oakland CA 94612 510-286-2200