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  #1  
Old 02-03-2007, 06:34 PM
TLDRIDKJKLOLFTW TLDRIDKJKLOLFTW is offline
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Landlord cashed my post-dated rent check early, overdraws my account

So what can I do?

We always post-date our rent check for the 5th - the day that it's actually due - even though we always make sure that they have the check by the first or second. It's never a problem; they hold it, then a few days after the fifth it appears on our bank statement as having been cashed.

We do this because of where our paydays fall, which are generally after the first of the month but before the fifth due to employer weirdness.

This month, instead of holding the check until the fifth, they cashed it the 2nd, and it posted today, overdrawing my account.

What are my rights in this situation between me and the landlord? Was it illegal of them to deposit the check before the fifth, or is post-dating merely a suggestion with no legal basis?
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  #2  
Old 02-03-2007, 06:38 PM
Q.E.D. Q.E.D. is offline
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You haven't got a leg to stand on. The date on the check is merely for reference (except to the extent that a personal check is not valid after typically 6 months from the issue date) and neither the bank nor the payee has any legal obligation to honor it. If you write a check and pass it, you are responsible for there being sufficient funds in the account to cover it at the time it is issued regardless of when the check is dated for.
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  #3  
Old 02-03-2007, 06:39 PM
boytyperanma boytyperanma is offline
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I think you are the at fault party. From my understanding post dating checks is not an acceptable practice.
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  #4  
Old 02-03-2007, 06:46 PM
mks57 mks57 is offline
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The bank is under no obligation to hold a post-dated check. With everything being so automated these days, I'd be amazed if anyone looked at the date field of the check. The post-dated check is an anachronism.
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  #5  
Old 02-03-2007, 06:46 PM
samclem samclem is offline
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Not only that, but accepting a post-dated check is a bad practice.

For instance--someone owes me $100. for an item he takes with him. He writes me a post-dated check, saying he'll put the money in his account when he gets home in two days. But, he's tragically killed in a car crash on the way home. They close out his bank account, and I'm SOL.
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  #6  
Old 02-03-2007, 06:51 PM
TLDRIDKJKLOLFTW TLDRIDKJKLOLFTW is offline
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Balls. I guess all the other times, they weren't holding the check until the fifth as much as they were just waiting to deposit all of the checks at once. The one time I didn't actually have the money in the account when I sent the check is the one time that they decide to hop to it.

Well, lesson learned, I guess.
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  #7  
Old 02-03-2007, 06:52 PM
Q.E.D. Q.E.D. is offline
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Now you may have some legal recourse, if you can demonstrate that you and your landlord had what amounted to a contractual agreement to hold checks until the postdate. But, is that really worth the relatively small amount of money it cost you in OD fees?

If this is the first time this has happened and you aren't in the habit of bouncing checks, your best bet is to contact your bank's customer service department and explain the situation and ask them if they will reverse the fees this time. Most banks are willing to give you a courtesy refund if your banking record is otherwise clean (and sometimes, even if it's not entirely pristine).
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  #8  
Old 02-03-2007, 07:24 PM
Mr. Slant Mr.  Slant is offline
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He violated your oral contract.
You should politely ask that he make you whole, unless you can get the bank to waive the fees.

Edit: On re-read, it appears there's no contract. I'd ask anyway, but expect to be laughed at.

Last edited by Mr. Slant; 02-03-2007 at 07:28 PM..
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  #9  
Old 02-03-2007, 07:41 PM
astro astro is offline
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Based purely on anecdotal evidence, many times if it's your first OD offense, if you ask the bank, o'pretty pretty please they will reverse the charges. This pre-opposea your record with the bank is super clean and this is the very first time you've done this.

I will note I have only been told this by persuasive women. I don't know how a man would fare in this bid for sympathy.

Last edited by astro; 02-03-2007 at 07:44 PM..
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  #10  
Old 02-03-2007, 08:03 PM
Drum God Drum God is online now
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My bank's official policy is to reverse one NSF per year (12 months). In some circumstances, they'll forgive a second one, too. My brother in law has worked at several banks that had similar policies as well.

For the future, have you considered using a bill paying service? I use my bank's internet bill-pay service and it's great. I tell the computer when the money needs to be in the recipient's account. They make sure it happens and actually debit my account on that day. So, if my rent were due on the fifth, I could set it up to pay on the fifth of each month. The bank will actually send the money a few days ahead of the fifth to get the ball rolling, but my account won't get hit until the due date. It is wonderful. My mortgage gets paid on time every month without my ever having to so much as lick a stamp. I hardly ever write checks, now.
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  #11  
Old 02-03-2007, 08:12 PM
Mr. Slant Mr.  Slant is offline
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Quote:
Originally Posted by astro
SNIP
I will note I have only been told this by persuasive women. I don't know how a man would fare in this bid for sympathy.
I'm near as ugly as they come, and I've gotten the waiver 3 times in 10 years.
As long as it's once a year or less, they seem to do it reflexively as a matter of customer retention.
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  #12  
Old 02-03-2007, 08:16 PM
Q.E.D. Q.E.D. is offline
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Quote:
Originally Posted by astro
...pre-opposea...

...

Last edited by astro : Today at 08:44 PM.
Do we understand the point of the edit feature?
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  #13  
Old 02-03-2007, 08:29 PM
Lionne Lionne is offline
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Originally Posted by Mr. Slant
I'm near as ugly as they come, and I've gotten the waiver 3 times in 10 years.
As long as it's once a year or less, they seem to do it reflexively as a matter of customer retention.
Yup, this is the case where I work. One NSF charge waived per rolling 12 month period. It's worth a shot...go for it.
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  #14  
Old 02-04-2007, 04:30 AM
FRDE FRDE is offline
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Regardless of what others said, you had an agreement with your landlord, if he is going to carry on like that then you would be wise to change your method of payment.

Personally I suspect that it was just a clerical error, and that he will be highly embarrassed.
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  #15  
Old 02-04-2007, 10:43 AM
FatBaldGuy FatBaldGuy is offline
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Quote:
Originally Posted by FRDE
Regardless of what others said, you had an agreement with your landlord, if he is going to carry on like that then you would be wise to change your method of payment.

Personally I suspect that it was just a clerical error, and that he will be highly embarrassed.
Did you actually specify to the landlord that you were post-dating the check, and ask him to hold it? Or were you depending on the fact that he would notice the date was in the future and not cash it until then?

This piece of information will make a big difference in whether or not you can approach the landlord about it.

Last edited by FatBaldGuy; 02-04-2007 at 10:44 AM.. Reason: Fixed syntax
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  #16  
Old 02-04-2007, 10:59 AM
Harmonious Discord Harmonious Discord is offline
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You're better off being late paying someone money than you are writing a check you don't have the money in the bank for. You end up with additional problems because bouncing a check is a criminal offense, with penelties involved. You also have to pay the fees, the original sum, and the person is pissed with you. Never give a check to somebody that is post dated, because they will cash it and you will be liable for the mess.

Never agree to an electronic funds transfer with a bill collector, because they will try to get every cent from the account and if they say they will wait until a certain day to get the amount, they won't and they will prosecute you under laws they can't if you are just unable to pay.
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  #17  
Old 02-04-2007, 11:05 AM
David Simmons David Simmons is offline
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Quote:
Originally Posted by Mr. Slant
He violated your oral contract.
You should politely ask that he make you whole, unless you can get the bank to waive the fees.

Edit: On re-read, it appears there's no contract. I'd ask anyway, but expect to be laughed at.
I'm not a lawyer but I believe a contract requires offer, acceptance and some consideration. The landloard gets no consideration for holding you check until a later date while you get the advantage of having "paid" your rent on time without actually having done so. It's a one-sided deal and valid contracts are two-sided.
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  #18  
Old 02-04-2007, 11:19 AM
jasonh300 jasonh300 is offline
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UCC Section 4-401 (c)
(c) A bank may charge against the account of a customer a check that is otherwise properly payable from the account, even though payment was made before the date of the check, unless the customer has given notice to the bank of the postdating describing the check with reasonable certainty. The notice is effective for the period stated in Section 4-403(b) for stop-payment orders, and must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it before the bank takes any action with respect to the check described in Section 4-303. If a bank charges against the account of a customer a check before the date stated in the notice of postdating, the bank is liable for damages for the loss resulting from its act. The loss may include damages for dishonor of subsequent items under Section 4-402.
UCC text

In other words, you'd have to notify the bank when you write the post-dated check to keep the bank from honoring the check prior to the date on the check.
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  #19  
Old 02-04-2007, 11:55 AM
David Simmons David Simmons is offline
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Originally Posted by jasonh300
UCC text

In other words, you'd have to notify the bank when you write the post-dated check to keep the bank from honoring the check prior to the date on the check.
How can this work? The check goes through some intermediary clearing houses before it gets to the bank. Do they all have to be notified?

If the check is cleared through intermediaries and then payment is refused by the bank because of a post-date wouldn't that jam up the system?
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  #20  
Old 02-04-2007, 01:02 PM
jasonh300 jasonh300 is offline
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Quote:
Originally Posted by David Simmons
How can this work? The check goes through some intermediary clearing houses before it gets to the bank. Do they all have to be notified?

If the check is cleared through intermediaries and then payment is refused by the bank because of a post-date wouldn't that jam up the system?
Apparently, it works the same as a stop-payment if the check hits the bank before the date on the check. It's a stop-payment with an expiration.
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  #21  
Old 02-04-2007, 02:04 PM
DrDeth DrDeth is online now
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Quote:
Originally Posted by David Simmons
I'm not a lawyer but I believe a contract requires offer, acceptance and some consideration. The landloard gets no consideration for holding you check until a later date while you get the advantage of having "paid" your rent on time without actually having done so. It's a one-sided deal and valid contracts are two-sided.
No, the Landlord gets the advantage of the check in his hands on time, rather than the vagracies of the Mail.
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  #22  
Old 02-04-2007, 02:30 PM
boytyperanma boytyperanma is offline
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Quote:
Originally Posted by DrDeth
No, the Landlord gets the advantage of the check in his hands on time, rather than the vagracies of the Mail.
Getting a check to your landlord on time isn't do him a favor your are meeting the requirements of another contract.
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  #23  
Old 02-04-2007, 03:36 PM
DSYoungEsq DSYoungEsq is offline
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Ok, let's get rid of the contract law issues right now.

The holding of the check until the written date could easily be a contract. OP offers to write a check with a post-date, and turn it in on the 1st. In return, he asks that the landlord not cash the check until the post-date. Landlord agrees to do so. We have offer, we have acceptance, and we certainly have consideration: each party is agreeing to do something he is not obligated to do otherwise. Bingo, contract.

The trouble here is that there does not appear to be a contract because we appear to be missing not consideration, but rather offer and acceptance. Without some discussion between the OP and the landlord, the fact that they engaged in a practice prior to the month in question isn't enough to establish an offer and acceptance of that offer.
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  #24  
Old 02-04-2007, 04:39 PM
Mr. Slant Mr.  Slant is offline
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Quote:
Originally Posted by David Simmons
I'm not a lawyer but I believe a contract requires offer, acceptance and some consideration. The landloard gets no consideration for holding you check until a later date while you get the advantage of having "paid" your rent on time without actually having done so. It's a one-sided deal and valid contracts are two-sided.
Regardless of the law, the damages here are petty enough that you'd have to be either very spiteful or very poor to consider involving the courts to mediate this dispute.
I was suggesting that the OP [when I thought he DID have an agreement with the landlord, a mistake on my part] ask the landlord to make him whole.
I was hoping that the OP's landlord, being an honorable man with concern for the happiness of his tenants and his reputation in the community, would follow through with the promise he made to his tenant.
Now, if the bank doesn't play nice, we could still hold out hope that the landlord feels bound by the date on the check as a matter of courtesy [or ignorance of the law], despite the fact that under the Uniform Commercial Code our OP is more sunken than the Titanic.

Given all we know, and assuming the OP hasn't had a discussion with his landlord we don't know about...
I would ask the bank for forgiveness, failing that I'd just swallow the bank fees.
My landlord's favor is worth more to me that the largest NSF fee I've ever heard of.
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  #25  
Old 02-04-2007, 06:23 PM
Cunctator Cunctator is offline
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Quote:
Originally Posted by Drum God
For the future, have you considered using a bill paying service? I use my bank's internet bill-pay service and it's great. I tell the computer when the money needs to be in the recipient's account. They make sure it happens and actually debit my account on that day. So, if my rent were due on the fifth, I could set it up to pay on the fifth of each month. The bank will actually send the money a few days ahead of the fifth to get the ball rolling, but my account won't get hit until the due date. It is wonderful. My mortgage gets paid on time every month without my ever having to so much as lick a stamp. I hardly ever write checks, now.
I agree with this. My first reaction was why are you still using a cheque to pay for a regular expense like your rent? Just get it set up as direct debit from your account on whatever day of the month is appropriate.
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  #26  
Old 02-05-2007, 12:27 AM
kittenblue kittenblue is offline
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Wait a minute. The rent isn't due until the fifth. So if I am going to be out of town the 1st through the eighth and I drop my rent check in the landlord's little drop-slot as I leave on the first, having dated it for the day the rent is due, the fifth, so that I'm a good tenant and aren't late paying. You're saying that he can legally go cash it on the first and the bank teller won't notice and say, "gee, this isn't dated until the fifth, come back and see us then?" Or if he just makes a drop-box deposit or ATM deposit of the check, the bank won't accept responsibility when the image of the check they send me shows that it was deposited before the date? Many's the time my mom has left a bunch of pre-dated checks around for me to mail out or hand out when she's been out of town...if she didn't have someone to do her bill-paying and she gave the church treasurer her pledge check ahead of time, they wouldn't be legally responsible for holding it until the date? It's been many, many years since I was a bank teller, but I do remember that we had to check dates on checks carefully.

I can understand pre-dating a check used to pay for something at a store being fraudulent, but I can't see how it would be so in this situation....the rent wasn't due yet, the landlord shouldn't have cashed/deposited the check until the due date at the earliest.

Of course, if the rent is really due on the 1st, but not considered late until after the fifth, then the landlord should be able to deposit it anytime after the 1st if you give it to him before the fifth.
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  #27  
Old 02-05-2007, 12:43 AM
DrDeth DrDeth is online now
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Quote:
Originally Posted by boytyperanma
Getting a check to your landlord on time isn't do him a favor your are meeting the requirements of another contract.
It is, if the Landlord in effect won't allow you to pay early (as he'll deposit the check, thus getting his cash earlier, which is a large benefit, and might cost you BIG BUX) or late, you are saying that the tenant must be EXACTLY on time every damn month, never a day late or early. That's complete nonsense.
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  #28  
Old 02-05-2007, 01:35 PM
Fir na tine Fir na tine is offline
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Originally Posted by jasonh300
UCC text

In other words, you'd have to notify the bank when you write the post-dated check to keep the bank from honoring the check prior to the date on the check.
Just for historical perspective up until this 1990 (approximately) revision of the UCC, it was perfectly proper to issue a post dated check and it was the drawee banks responsibility to bounce it if the date had not yet arrived. So the OP would have just gone to his bank and said - you made a mistake - fix it. This section was changed with many others to place the onus on the maker of the check instead of the bank.

I worked in the banking industry back office from 1970 to 1990 and refunded many NSF fees that were caused by paying post dated checks prematurely.
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  #29  
Old 02-05-2007, 01:43 PM
Drum God Drum God is online now
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Quote:
Originally Posted by DrDeth
It is, if the Landlord in effect won't allow you to pay early (as he'll deposit the check, thus getting his cash earlier, which is a large benefit, and might cost you BIG BUX) or late, you are saying that the tenant must be EXACTLY on time every damn month, never a day late or early. That's complete nonsense.
But with modern technology, this isn't an issue. I set up my bills to pay in my absence. I can be gone for a month and my finances will just rock along fine without me. I have all of February's payments set up to pay throughout the month. My mortgage payment will arrive exactly on March 1, not a day late or early. The last time my mortgage was late was during the Anthrax scare of 2001. I sent a payment through the mail and it never arrived at its destination. Ever since, my payments have arrived exactly on time and it doesn't even cost me a postage stamp.

I realize that this may not be possible for everyone. I am fortunate in that I have a very predictible paycheck which is direct deposited exactly on the correct date. Some people with less money, or less predictible pay, may not find it so easy. However, if I were going out of town when the rent is due, I would figure something out. Maybe mail the rent check from wherever I was travelling, for example.
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  #30  
Old 02-05-2007, 05:09 PM
DrDeth DrDeth is online now
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That can work for some, but I doubt most Landlords (that aren't a large corp) will be set up to do that. And, there are security issues.
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  #31  
Old 02-05-2007, 09:34 PM
Drum God Drum God is online now
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Quote:
Originally Posted by DrDeth
That can work for some, but I doubt most Landlords (that aren't a large corp) will be set up to do that. And, there are security issues.
I agree that it may not work for everyone, but it will work for most. Landlords don't have to be set up for anything. It's not an electronic transfer (though that happens). I can set up a payment and the bank (actually, it's contractor) prints a check and sends it to the person or company that I direct. As far as security goes, it is more secure then giving a check to the landlord. The internet banking is a secure, encrypted transaction. Yes, some people have had bad experiences, but given the enormous number of transactions which take place each day, the chance of a security breach is remote. In the case of an actual check being printed, it bears the account numbers of the contractor, not my account number. The landlord and/or his employees never have access to my real bank account information.
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  #32  
Old 02-06-2007, 03:57 AM
si_blakely si_blakely is online now
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As an interesting aside, the Banking Ombudsman in the UK has investigated the charging of Denied Payment fees by UK banks. The law says that the banks can charge their costs, no more. But the banks will not reveal the details of those costs, or the justification.

So anyone with a bank account in the UK can challenge their bank over these fees, going back six years. If the bank does not justify the level of fees, then you can issue a small claims court proceeding against them. At this point they will make a settlement offer.

Money (back) in the bank.

Si
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  #33  
Old 02-06-2007, 04:18 AM
FRDE FRDE is offline
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Quote:
Originally Posted by si_blakely
As an interesting aside, the Banking Ombudsman in the UK has investigated the charging of Denied Payment fees by UK banks. The law says that the banks can charge their costs, no more. But the banks will not reveal the details of those costs, or the justification.

So anyone with a bank account in the UK can challenge their bank over these fees, going back six years. If the bank does not justify the level of fees, then you can issue a small claims court proceeding against them. At this point they will make a settlement offer.

Money (back) in the bank.

Si
And they'll also send you a letter saying that they have closed your account
- that can be a nuisance
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  #34  
Old 02-06-2007, 05:44 AM
kanicbird kanicbird is offline
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Quote:
Originally Posted by kittenblue
Wait a minute. The rent isn't due until the fifth. So if I am going to be out of town the 1st through the eighth and I drop my rent check in the landlord's little drop-slot as I leave on the first, having dated it for the day the rent is due, the fifth, so that I'm a good tenant and aren't late paying.
I could be wrong, but heard that postdating a check is illegal, actually fraud.
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  #35  
Old 02-06-2007, 06:02 AM
Mr. Slant Mr.  Slant is offline
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Quote:
Originally Posted by kanicbird
I could be wrong, but heard that postdating a check is illegal, actually fraud.
You're wrong.
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