postdated check cashed early

[lealea1005]

I didn't do that first time around because I thought it was illegal, fraud, to write a postdated check and have it stopped.

So you intended to stop payment on a check you rendered for services already provided? That's still fraud.

[justalayman]

Originally Posted by Ohiogal

ETA -- I understand UCC code. But that is NOT on the basis of the post dated check being post dated It is on the basis of the writer of said check putting the bank on notice. Post dating a check means nothing. the notice is the important part and she didn't do that. This poster said NOTHING about putting the bank on notice. Hence the check was a negotiable instrument and could be cashed by the bank that day regardless of the date on the check.

Oh O. I did specifically mention that the notice to the bank is not a concern here. I am not arguing any liability on the part of any bank. I believe this was in fact a promissory note based on a contractual agreement willingly agreed to between the dentist and the OP.

As such, I believe the OP does in fact have an action against the dentist.

BUT what about the negotiable v. non-negotiable instrument.

UCC

(f) "Check" means (i) a draft, other than a documentary draft, payable on demand and drawn on a bank or (ii) a cashier's check or teller's check. An instrument may be a check even though it is described on its face by another term, such as "money order."

(e) An instrument is a "note" if it is a promise and is a "draft" if it is an order. If an instrument falls within the definition of both "note" and "draft," a person entitled to enforce the instrument may treat it as either

(d) A promise or order other than a check is not an instrument if, at the time it is issued or first comes into possession of a holder, it contains a conspicuous statement, however expressed, to the effect that the promise or order is not negotiable or is not an instrument governed by this Article.

(a) Except as provided in subsections (c) and (d), "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:

(a) Except as provided in this section, for the purposes of Section 3-104(a), a promise or order is unconditional unless it states (i) an express condition to payment, (ii) that the promise or order is subject to or governed by another record, or (iii) that rights or obligations with respect to the promise or order are stated in another record. A reference to another record does not of itself make the promise or order conditional.

(a) A promise or order is "payable on demand" if it (i) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state any time of payment.

(a) A promise or order is "payable on demand" if it (i) states that it is payable on demand or at sight, or otherwise indicates that it is payable at the will of the holder, or (ii) does not state any time of payment

.
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So, utilizing various definitions from the above list, (and leaving the OP's bank out of this simply due to their observance of the Banking regulations CC which allow them to honor the paper as money at the time of it being presented regardless of the date), I argue this:

the check was not actually a check. It was a promissory note. The "check" fails the negotiable instrument test due to the fact the issuer did have the power to prevent their bank from honoring (with full legal support) upon notification of the post date. One requirement for a instrument to be considered a check is that it is negotiable on demand. It was not necessarily negotiable on demand. The OP had the right to prevent the negotiation simply with notice to their bank. To me, that removes the "check" from the classification of a negotiable instrument in concerning the transaction between the dentist and the OP. Due to that, the dentist had no right to consider the instrument as a check as it had clearly been presented as a promissory note and accepted as a note and not a check evidenced by the initial discussion, the discussions after the instrument had been negotiated, and all supported by the post dating of the instrument.

However writing a post dated check means nothing.

well...

People do NOT have to hold a post dated check.

correct BUT I contend if the instrument is written in contemplation of the date being honored AND both parties specifically agreed to the date on the instrument being the date the instrument becomes payable, they have entered into a contract which would cause the instrument to become a note rather than a check.

Banks can CASH a post dated check.

agreed

The numbers the bank looks at are the amount of the check (though if the numbered amount differs from the written amount that has it's own priority)

ok

and the account number.

and they had best pay attention to the endorsement as well.

The date on the check means very little if nothing

.not true and I provided UCC to support. It means a lot but there are required actions to complete the limitation, in regards to the bank anyway.

Someone MIGHT hold a check to be nice but truthfully they don't have to.

but if it is not a check, then they are bound by rules other than those that apply to a check.

Commercial transactions law rules

like in UCC?



O, I presented proof that post dating a check is enforceable if the required subsequent actions are performed. We went through this before and if the requirements are acted upon as required, the bank does in fact become liable for the losses incurred by the writer. I would have to hunt it up but I believe there was even case law supporting that position.

[Ohiogal]

YOu make good points and I agree with them HOWEVER OP does not have an argument because she did not give notice. IN THIS SITUATION, the bank and doctor didn't necessarily do anything wrong. She doesn't really have a case. Oh and an endorsement is NOT normally numbers. so that is why I stated it the way I did.

[justalayman]

thank you O. It means a lot.

Although the OP apparently intends on breaking the law to make her point, I would at least attempt to use the info I utilized to support my case in her "discussion" with the dentists office.

If all fails there, I would suggest a small claims case if there has been any actual injury to the OP due to the premature deposit of the check.

Small claims is cheap and dirty justice and if OP presents herself reasonably well, she may prevail or maybe not but cost is low so why not?

[Proserpina]

Look I know it's a teeny tiny thing but ....

It wasn't a dentist...it was actually a doctor covering for OP's regular ob/gyn.

I know, I know, it doesn't change a darned thing but ...well...dentists work at the "other end", so to speak and it was just niggling me a wee bit. Sorry!

[justalayman]

Originally Posted by Dogmatique

Look I know it's a teeny tiny thing but ....

It wasn't a dentist...it was actually a doctor covering for OP's regular ob/gyn.

I know, I know, it doesn't change a darned thing but ...well...dentists work at the "other end", so to speak and it was just niggling me a wee bit. Sorry!

well, after seeing some of the "caught on videos", it seems some dentists work on both ends

thanks for the correction. Not sure where I got dentist but you are right, it doesn't make any difference.