Craig A. and Roseann B. Miller - Page 14




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          release between JTF and petitioners before the check was issued,            
          there may have been such a mutual understanding between JTF and             
          the Pellegris prior to the issuance of the check.4  Petitioners             
          reasonably could have believed that there was a mutual                      
          understanding between JTF and the Pellegris before the issuance             
          of the checks to Pellegri Sr. and to petitioners and that the               
          mutual understanding would be imputed to petitioners, thereby               
          creating an accord and satisfaction under California Civil Code             
          section 1526(c).                                                            
               Although we believe that California Commercial Code section            
          3311, discussed above, states the California law relevant to this           
          case, we note that the common law of California would govern if             
          no statute applied.  Under the common law of California, the                
          elements of accord and satisfaction are:  (1) A bona fide dispute           
          between the parties; (2) a clear expression by the debtor that              
          what he tendered was subject to the condition that it was to be             
          in full satisfaction of the creditor’s unliquidated claim; and              
          (3) a clear understanding by the creditor when accepting what was           

               4The release indicates that it was signed by Stephen                   
          Pellegri on 11/02/99 and for JTF on 11/03/99.  The check from JTF           
          to Pellegri is dated 11/02/99.  The check from Pellegri to                  
          Roseann Miller is dated 11/01/99.  Neil Phillips’s letter                   
          concerning the amount of the loss computation is undated, but a             
          page of supporting data indicates fax transmission on 11/05/99.             
          The record does not disclose the date of any oral agreement                 
          between the Pellegris and JTF.  The meeting between petitioners             
          and Pellegri Sr., when Pellegri Sr. presented his check to                  
          petitioners and showed them Phillips’s report, took place on                
          11/12/99.                                                                   





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