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Accepting a posted dated check

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GkwofAtl

Guest
What is the name of your state? NC

I have a creditor that I am taking to small claims court to recover $350. In order to avoid court he wants to write me a post dated $350 check and then have me wait 2 weeks to cash as he will not be able to fund it for 2 more weeks. I have to agree to drop the charges against him.

If I agree to this and then he stops payment on the check am I out of luck?

I intend to get this in writing that he agrees to pay me in full before a specified date.
 


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annefan1000

Guest
This "creditors" trustworthiness obviously was in question that you had to file a civil suit in the first place.

You may want to accept cash only. In the meantime, I'd suggest you do not withdraw your suit. Perhaps you might request a continuance. The debt can easily be satisfied before the next hearing is scheduled, giving you enough time to withdraw your complaint after you've received your money.
 
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gottago

Guest
Never accept a post-dated check. If he doesn't have the money now, why in the world would he have it in two weeks? He's trying to con you...apparently again.

If he wants to pay you, tell him to give you cash. If he doesn't want the case to go to a court judgement before he can pay, just ask the court for a continuation until he pays you the cash. Most courts will grant you a continuation.

In any case, if you accept the check and dismiss the case, you're going to end up spending several hundered more $$ re-filing the case and then trying to collect on the bad check.

Post dated checks are illegal in some cases... just another reason to avoid accepting them.

Beware...
 

JETX

Senior Member
Contrary to the responses, I offer the following:
1) Is this creditor local to you?? If so, then I would consider accepting his post-dated check. My reasoning is (and I would make sure that he knows this), if the check is returned NSF or account closed, you can and WILL file criminal charges against him. That is a BIG 'hammer' to make sure that he has the funds available.
2) If you do decide to do this, have the creditor sign an 'agreed judgment' (and get it notarized) in the amount of $350, plus your current court costs. This simply means that he revokes any rights to challenge your lawsuit if you have to refile your case.... and you can include a separate clause as to recovering costs of any subsequent action. If he signs this 'agreed judgment', then you simply have to file your 'new' case and then show the signed document to the judge and you win... no trial, no hearing.
 
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GkwofAtl

Guest
Question for Halket

Is an "Agreed Judgement" and "official" document, statement, etc. that I have to get from the court or can I just draw up a document myself stating that he revokes any rights to challenge my lawsuit if I have to refile my case, as you mentioned in your post.

The creditor is local. Based on conversations I've had with him, I feel he really intends to pay me, he just needs more time. He even said himself that if we go to court, he knows he'll lose. It sounds like you idea will work
 

djohnson

Senior Member
I would do the agreed order but check your states laws before taking a post dated check. In some states taking it is illegal and also you can not file criminally on checks you knew were bad when you took it or for services already rendered. They must be getting something in exchange at the time the check was written. However with the post dated check you can keep checking his bank account to see if funds are available and go get them if they are. Always check around paydays.
 

JETX

Senior Member
djohnson said, "check your states laws before taking a post dated check. In some states taking it is illegal and also you can not file criminally on checks you knew were bad when you took it or for services already rendered. "

FEDERAL law allows postdated checks. From the UCC:
"§ 3-113. DATE OF INSTRUMENT.
(a) An instrument may be antedated or postdated. The date stated determines the time of payment if the instrument is payable at a fixed period after date. Except as provided in Section 4-401(c), an instrument payable on demand is not payable before the date of the instrument.
(b) If an instrument is undated, its date is the date of its issue or, in the case of an unissued instrument, the date it first comes into possession of a holder."

So, my question to 'djohnson', what states prohibit postdated checks?? Please provide link to statute.
 

djohnson

Senior Member
TNcode39-14-121

(1)Issues or passes a check or similar sight order for the payment of money for the purpose of paying any fee, fine, tax, license or obligation to any governmental entity or for the purpose of obtaining money, services, labor, credit or any article of value, knowing at the time there are not sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order, as well as all other checks or orders outstanding at the time of issuance;

(3)This subsection shall not apply to a post dated check or to a check or similar sight order where the payee or holder knows or has good and sufficient reason to believe the drawer did not have sufficient funds on deposit to the drawer's credit with the drawee to ensure payment at the time.


In our court in Tennessee a person or business is not allowed to even file a warrant on checks that were (1) post dated due to the receiver of the check would not at the time accepted the funds were not available therefore does not fall under criminal intent. (2) If the the check paid for services already rendered. If nothing was exchanged at the time for the check. A basic payment on account or rent or anything already given or used does not fall under criminal intent in Tn due to the check was not given in exchange for anything because the person or business is in no worse terms than before he took the check. By taking the check he lost nothing more.

I see this everyday in our middle district. As I stated check the rules where you are at. However by taking it you do have the oppurtunity to drain his account if the funds are available. Is give and take on what you do.

Also from the banks standpoint if you write a post dated check it can still go through the bank. They do not refuse due to date.
 

JETX

Senior Member
Wrong, wrong!

Djohnson: The statute you cited is CRIMINAL law as to "TITLE 39 CRIMINAL OFFENSES : CHAPTER 14 OFFENSES AGAINST PROPERTY : PART 1 THEFT : 39-14-121. Worthless checks.worthless checks". It has NOTHING to do with a person accepting a postdated check in full knowledge that it will be held until the date agreed. In the case of this thread, there is nothing to support that "the payee or holder knows or has good and sufficient reason to believe the drawer did not have sufficient funds on deposit to the drawer's credit with the drawee to ensure payment." as required.

The FULL applicable text reads:
"39-14-121. Worthless checks.
(a) A person commits an offense who, with fraudulent intent or knowingly:
(1) Issues or passes a check or similar sight order for the payment of money for the purpose of paying any fee, fine, tax, license or obligation to any governmental entity or for the purpose of obtaining money, services, labor, credit or any article of value, knowing at the time there are not sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order, as well as all other checks or orders outstanding at the time of issuance; or
(2) Stops payment on a check or similar sight order for the payment of money for the purpose of paying any fine, fee, tax, license or obligation to any governmental entity or for the purpose of obtaining money, services, labor, credit or any article of value; provided, that such money, credit, goods or services were as represented at the time of the issuance of the check or similar sight order.
(3) This subsection shall not apply to a post-dated check or to a check or similar sight order where the payee or holder knows or has good and sufficient reason to believe the drawer did not have sufficient funds on deposit to the drawer's credit with the drawee to ensure payment.
(b) For purposes of this section, the issuer's or passer's fraudulent intent or knowledge or both of insufficient funds may be inferred if:
(1) The person had no account with the bank or other drawee at the time the person issued or passed the check or similar sight order; or
(2) On presentation within thirty (30) days after issuing or passing the check or similar sight order, payment was refused by the bank or other drawee for lack of funds, insufficient funds or account closed after issuing or passing the check or order, and the issuer or passer fails to make good within ten (10) days after receiving notice of that refusal."

Djohnson said, "if you write a post dated check it can still go through the bank. They do not refuse due to date."
As shown in my earlier post, the bank cannot legally accept any payment before the date shown on the check. However, they do it all the time.... purely due to efficiency. Virtually all checks are now processed by machine and very seldom (if ever) are seen by a human eye. So, the checks just 'zip' through the machine... no matter what date is on them. But, LEGALLY the bank is not supposed to pay on them, "Except as provided in Section 4-401(c), an instrument payable on demand is not payable before the date of the instrument."
 

djohnson

Senior Member
This post clearly states that he is giving the post dated check because he should be able to have the money by that time. That obviously implies he does not have the money now. This would never hold up in my court. It would be thrown out. You advised to have them threaten criminal charges if it didn't clear. In order to do this you must have the intent to do so. If you can't file a warrant on a check that you knew was bad when you took it then there is no intent. As this person knew or had reasonable information to know it would not be accepted. Each state may be different I only speak for Tennessee and it would not wash here. I see this several times a week and not once has it went. Interpretation of the written laws has been argued before, I do it regularly and have seen it go either way except under these circumstances.

My advise to original poster take the check as you have nothing else to lose with an agreed order but do not make false threats until you find out how YOUR court handles that situation.
 

JETX

Senior Member
Your opinion as to whether the authorities would accept (or not accept) a complaint of 'theft by check' would be up to the officer investigating the case, but I strongly believe that the charges would be accepted..... IF the check is presented to the bank AFTER the date AND the check is refused. The citation you offer is based (in my opinion) on the check being presented BEFORE its date and then being returned as NSF.... charges may not be accepted.

However, two things in your post strike me as unusual. In your post, you say, "This would never hold up in my court." implying that you are a judge.

Then, in your signature line, you say, "I am an invetigator in Tennessee. I have specialized in Theft, Bankruptcy, and Credit. I am not an attorney."

The two statements seem contradictory.... either you 'have' a court or not..... which??
 

djohnson

Senior Member
As I am in court daily and live and serve under its jurisdiction it is my court. This would never get through our magistrate to even go before a judge unless fraudulent information was given. I will be glad to give you a phone number and you contact her. Each district I am sure handles things differently but because this check was not given in exchange for something, he is not a government entity, and he had reason to believe the funds were not there when he accepted it (no matter when he puts it through) there would not be a warrant filed. Even if it slipped through with bad information given it would come out in front of the judge and be thrown out. I did run this by Judge Grimes and our DA Mr Cloud and both agreed with my statements.
 

JETX

Senior Member
Again, I might agree with their opinion if the check was presented for payment BEFORE the date shown. What was their opinion if the check was presented for payment AFTER the date shown and was returned NSF or account closed??

It seems very hard for anyone to be able to PROVE to a 'trier of fact' that the receiver of the check knew of the NSF or closed account at the time the check was received.
 
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djohnson

Senior Member
Its not when the check was issued that is in question. It is because the check was post dated due to "funds should be in there by then" statement. That is reason to believe the check is bad at the time you accepted no matter what date he put on the check. He could date it today and say hold it til next week or date it for next week and aske them to hold it, it is the same thing. He had had reason to believe it was worthless when he took it, the post dating only backs that up. I'm not saying don't take it. I personally think you have more leverage with it for several reasons. But I don't think you should threaten criminal charges if it doesn't clear. By doing so especially at the time you take the check means you don't think it will.

In this district criminal charges could not be filed in this case.
 

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