03 Aug Week 3 Q&A with Gerald Gray – A Kansas City Attorney
Q1. My mother was selling a TV online for $200.
However, someone from out of town decided to purchase and sent her a check via express mail for $1800 for the TV.
The buyer said that there was a mix up in the price and that my mom could keep the extra $1,600 and that she was planning on having an in-town relative come pick the TV up.
My mom does not want to cash the check because she is suspicious that the check might be fraudulent although it looks real.
If she cashed the check, could she be liable if there was indeed fraudulent activity going on?
Yes she can be. Not only can she be required to repay the bank or financial institution where it is cashed but depending on the circumstances and the jurisdiction that the check is cashed, she could even face criminal prosecution if they can prove that she had knowledge or a belief that it might be fake.
When you deposit a check or money order, federal law requires you to have access to the funds within 1 to 5 days, but the actual processing takes longer. Banks, credit unions, and check cashing services accept checks and money orders based on your identification. They don’t have any information about the source. Because the check or money order goes back to the source, it can take a while for counterfeits to be discovered.
Therefore, it could take days, weeks or months to know that a check was fraudulent.
There are many types of fake check scams. These scams typically start when someone offers a realistic
-looking check or money order and asks you to send cash somewhere in return.
In this case, no one is asking for money to be returned.
However, it does not make much sense that they are willing to give you $1600.
Now your bank wants the money back. Just because you can get the cash doesn’t mean the check or money order is good. If it’s not, the crook will be richer and you’ll be the loser, because you’re responsible for the checks or money orders you deposit or cash. That’s how the scam works.
Always follow your instincts. If you are skeptical, then it’s probably a scam.
Analyze the situation.
Ask yourself, why wouldn’t they send the check to the relative and let them keep the money?
They trust your mom, whom they’ve never met more than the relative who is coming to pick up the TV?
If they aren’t worried about the money, why are they buying your mom’s used $200 TV (that they aren’t even sure works) spending $1850 at a store where they can get a nice TV with a warranty.
I am going through a divorce and my soon-to-be ex-husband is trying to get split custody of our child.
However, since he left home over a year ago, he has only seen our child once during the holidays.
He even missed our child’s birthday party stating that he could not get off work.
However, he does not work on weekends, nor did he make an effort to make up the time.
I don’t mind splitting custody with him but I want him to do his part by showing up and being a parent.
Is this the wrong attitude?
Q. No, you have every right to feel this way.
Typically, when Courts make a child custody determination, they base it on several factors including the actions of the parents.
Some of the other factors that may be considered are the child’s emotional needs, relocation, proximity between
parents, the desire of the parents, mental history and abuse or neglect just to name a few things.
There is no jury but the Judge makes a determination that he or she feels is in the best interest of the child.
Therefore, if evidence is presented that shows that the father has purposely avoided visitation with the child despite your efforts to encourage them to spend time together, then the judge is not likely to grant split custody.
Now I want to be clear that split custody is not the same as joint custody.
When I say split custody, that means the child spends equal time with the parents such as (one week with mom, one week with dad, back and forth).
However, joint custody refers to legal and physical custody.
“Custody” means joint legal custody, sole legal custody, joint physical custody or sole physical custody or any combination thereof;
(2) “Joint legal custody” means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority; (3) “Joint physical custody” means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents.
Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent,
continuing and meaningful contact with both parents.
Courts are trying harder to grant parents split
custody when proper but under the circumstances you’ve described, it’s doubtful that the Court will grant your ex split custody when he rarely shows up.
My God mother just recently passed away, before her passing she told me that she was
leaving me and my children some money. Now that she is gone, her biological children won’t give me
anything. Can they do that?
I first want to extend my sincere condolences for your loss.
Although she was not your biological mother, it sounds like you were very close.
To answer your question, unfortunately, yes they can.
The truth of the matter is that if you were not legally adopted, then you have no legitimate inheritance rights. In regards to the insurance policy, the named beneficiaries on the policy are the only ones who have a legal claim to the proceeds.
Despite your godmother’s wishes, your case would likely fail without written notice to the insurance company from your godmother prior to her death stating that she wishes to add you to the policy.
Remember that insurance beneficiaries have nothing to do with inheritance.
Only thing that matters is who is named on policy as the beneficiaries, regardless of their relationship to the policyholders.
I was playing pick-up basketball during my lunchbreak.
Another guy who is a regular attendee and drives a delivery truck started a fight with me and
my nose was broken.
I was interested in suing him and his employer. How would you suggest that I proceed?
Well, it would be difficult to prove any liability on behalf of the other guy’s employer because
he was not acting within the course or scope of his employment.
Meaning that he is a delivery driver.
You were not injured while he was performing his duties as a delivery driver but while he was taking a break or possibly off the clock.
Your fight over the basketball game has nothing to do with his job based on the information you’ve provided.
Your attempt to sue his employer for his actions is known as vicarious liability.
However, in these situations, an employer’s liability is determined by whether the employees actions that caused an injury are defined as a frolic or a detour.
Frolic and detour in the law of torts occur when an employee (or agent) makes a physical departure from the
service of his employer (or principal). A detour occurs when an employee or agent makes a minor departure from his employer’s charge, and a frolic is a major departure when the employee is acting on his own and for his own benefit, rather than a minor sidetrack in the course of obeying an order from the employer. The employer will be relieved of any vicarious liability for torts committed by the employee only if the employee has deemed to engage in a frolic.
However, you can sue the guy personally for your injuries.
The questions is whether or not he has personal assets or insurance that you can collect on for your injuries after
the Court awards you a Judgment.
I let my Uncle borrow my car to go work one day. While he was driving my car, he hit a guy that was crossing the street.
I did not have insurance on the car and now I am now being sued. Is this possible?
Yes, this is commonly known as liability for negligent entrustment which is a cause of action in tort law that arises where one party (known as the entrustor) is held liable for negligence because that person negligently provided another party (known as the entrustee) with a dangerous instrumentality, and the entrusted party caused injury to a third party with the instrumentality provided.
The cause of action most frequently arises where one person allows another to drive their automobile such as here.
As the owner of the car, such as your case.
However, typically to prove negligent entrustment, the plaintiff typically must present evidence which creates a factual probability that the owner knew, or had reasonable cause to know, that he was entrusting his car to
an unfit driver likely to cause injury to others. Furthermore, in order to impose liability upon the
owner, the plaintiff must also prove that the negligent entrustment of the motor vehicle to your
Uncle was a cause of the accident.
Negligent entrustment is generally found where the entrustee, being your Uncle, had a reputation
or record that showed or suggests his propensity to be dangerous such as a bad driving record or no license at all.
The fact that you allowed your Uncle or anyone to use the car without insurance alone is negligent entrustment per se but it certainly could prove to be problematic and negligent on your part.
State law requires that every driver have a minimum amount of insurance or prove that they are financially responsible should an accident arise and failure to do so alone is a violation of the law and could impose liability on you.