Citibank v. Perz

June 14, 2011

A newly reported case suggests a need for caution in attempting to negotiate with credit card lender … and the lenders need to be cautious as well. In Citibank (South Dakota) NA v. Perz, 191 Ohio App.3d 575, 2010-Ohio-5890, a lawyer sent a proposed settlement letter to a credit card company with a check for less than the amount due, saying that they should return the check if the offer was not accepted. The company cashed the check and kept on collection. The case reveals three lessons: (1) Credit card agreement these days say they can cash “paid in full” checks but continue to collect if the account is not really paid in full. (Normally, you can’t have an enforceable accord and satisfaction with a “paid in full” check if the account is not in fact paid in full or not disputed in good faith.) (2) Credit card companies may have a hard time proving the terms of the credit card (other than the debt), because of they way they send their term sheets without getting signatures. How do they prove which term sheet any card-holder actually received? (3) A “paid in full’ check might act as a settlement of an undisputed account if the disclosed reason for less-than-full payment is for the debtor to avoid bankruptcy.


Ohio’s 2007 Minimum Wage Amendments: Unfair?

April 12, 2007

Effective January 1, 2007, Ohio’s Constitution will feature a new minimum wage for all employers. The minimum wage will be indexed to the consumer price index, but the precise mechanism is, at best, unclear. Employers must keep records and make them available to the employee or to a person acting on the employee’s behalf upon request. What is clear is that there will severe penalties for noncompliance with the minimum wage. Employees will have a right to recover three times any back wage underpayments and collect attorneys’ fees. Employers will have no right to collect attorneys fees unless the employee’s suit is found to be frivolous. If an employer is found to have retaliated against an employee for questioning the wage rates, the courts are required to award an amount sufficient to deter future misconduct at a minimum rate of $150 per day. An employer who appeals an adverse decision cannot get a stay of judgment on appeal.What happens if the employer gets a very bad decision from a judge. (It happens — rarely we hope). The employer has to pay the employee and appeal. Odds are that the employer would never get its money back under this constitutional amendment.

Under the standard procedure, the employer would have to post an appeal bond. If the employee won the appeal, the m money is guaranteed to be there. The bond guarantees it. That seems fair to me.

How is the prohibition on a stay of collection on appeal fair? I do not see it.

David W.T.Carroll
Carroll, Ucker & Hemmer LLC

Blog with Carroll, Ucker & Hemmer LLC

April 9, 2007


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