“His check bounced …! What can or should I as an auctioneer do?” To answer that, we need to know one critical piece of information: Is this theft or is this an unpaid? In other words, who is in possession and control of the subject property?
- If this buyer’s check bounced and the buyer has possession and control of the property — this is likely theft — a criminal matter.
- If this buyer’s check bounced and you or your seller has possession and control of the property — this is likely an unpaid — a civil matter between the seller and the buyer.
Of course, we’ve talked above about a “bad check” and passing a bad check is a criminal act in most — if not all — of the United States; that is, if the check writer knowingly wrote the bad check, wrote a big bad check or repeatedly writes bad checks. Typically, one or two unintentional bad checks won’t result in criminal charges.
However, our point of this writing is again, is it theft or an unpaid? For instance, what if a buyer purchases (is deemed the high bidder) and just gets in his car and goes home? There’s no bad check, and unless there is criminal intent or fraud, this is strictly a civil matter. On the other hand, if the buyer takes the property home without paying, that’s theft and thus a criminal matter.
We wrote earlier this year about an auction buyer who purchases and doesn’t pay here: https://mikebrandlyauctioneer.wordpress.com/2017/11/16/at-auction-can-we-force-sellers-to-sell-buyers-to-buy/ While a seller could seek an action for specific performance … it appears to us that without any damages, this is a tough (if not impossible) lawsuit to win.
Better than seeking specific performance, sell the property (item) again to someone else. If the subsequent sale price is materially less than the prior, sue for the difference plus the associated cost of sale, holding costs, etc. Otherwise, save some legal expense and just move on … especially if the subsequent sale amount is at or more than the prior sale price.
In fact, life indeed is short … if you can’t collect or have a bad check and still have the property — take care of your client rather than trying to punish the wrongdoer. And if it’s theft, take actions which help your client, rather than merely punish the thief. Your seller hired you to help him (or her) and nothing more.
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.