So a week ago, I made a verbal agreement with my son’s daycare. I gave them a check for two weeks with the understanding that they would hold it until the 24th. I dated it for the 24th. Both of us understood that this is how it would happen, and it was good.
They deposited it on the 17th, it went through on the 20th. I just found this out, and I am livid. I now have $100 in bounced check fees because this check went through and the bank paid it.
Do I have any legal recourse? Is the daycare obligated to refund that $100 to me? Should the bank have put through a post-dated check before the date on it?
I haven’t yet had a chance to talk to anybody in charge at the daycare, as I just found out tonight. I will be talking to the assistant director tomorrow. The arrangements were made with the director, who is now conveniently out of town. :mad:
Do I have a leg to stand on here?
IANAL (or Banker), but my understanding from past dealings is that post-dated checks have no legal standing. Businesses are not required to accept them, and banks will honor them if they are presented for deposit before the date on the check.
What you have with the daycare is a verbal agreement that they would not deposit your check until a certain date. Either they slipped up, or they consciously decided not to wait. In either case, I don’t think you have much to stand on. If the daycare manager truly made a mistake, they may offer to cover your bank charges for bounced checks, but they are not obligated to.
Unfortunately, not much. The date on the check is not a legal instrument - it’s mostly for reference. Neither the payee nor the bank is bound to honor it. Nevertheless, you may be able to go to your bank and explain the situation. They may, at their discretion, credit you with the NSF fees. Speak personally with the bank representative, be polite, and explain the situation, that it was understood that the check would not be presented for payment prior to the 24th. If you’re not in the habit of bouncing checks, and your record is otherwise clear, most banks will have little problem with a one time credit in this sort of situation. Don’t bother the daycare with this, however, they’re not really at fault.
I believe they are at fault. I caught an office worker just before they closed (assistant director and director both not in) and she says it probably had a note on it saying hold until the 24th that fell off, and it got deposited. Her exact words were “It should not have been deposited”, which tells me she, at least, is admitting fault.
I’d hate to lose them, after five solid years of decent childcare, but I will pitch a fit over this if I have to, and I will leave them if it’s not resolved. I had a verbal agreement with the director, and I’ll see him hold up his end or we will part ways. Does this make me an asshole? Maybe. But I can’t afford to just eat that hundred dollars.
IMHO it’s pretty clear: The day care center told you one thing and then did another, costing you money. They should bear the cost of fixing the problem they caused.
You’ve already got your answer(s) - the post date means nothing, but the verbal agreement with the daycare should prevail, so, yes, you do have a leg to stand on. That’s been stated.
I just have to note that I’m in awe of a $100 bounce fee! Is that normal?
I agree with you 100%.
The hole here is the director. He didn’t have to make that agreement but he did, he violated it and you had to pay. How can you trust your child with such an organization?
Before you have your next (and last) chat with the director, find another daycare and if he doesn’t make amends during that meeting, you should politely inform him there will be no more post dated checked from you because there will be no more checks, Johnnie’s last day is whatever you have already paid for.
No, the $100 is actually $99, consisting of bounced-check fees of $33 each for two checks that went through after this happened, and also the ATM let me withdraw $20 even after this happened. I don’t know how it let me withdraw money on an over-drawn account, but it did, and it charged me $33 to do so.
There are two issues here. (The previous responses have pretty much nailed it.)
Under the current version of the UCC, your bank can disregard the postdating of the check. You have no claim against your bank.
On the other hand, if you had an agreement with your day care center, and it breached that agreement, you have a claim there.
(Sorry about the lack of cites. It’s late, and I just got in from a firm related event where the beer was flowing.)
Oh, and usual disclaimers. I’m not your attorney, and this isn’t legal advice. See an attorney licensed in your state for that.
Ah… thanks, Random. You are not my attorney, and I am not accepting your post as legal advice. 
Now I feel fairly confident about standing my ground here, and I will research the laws in my state WRT verbal agreements and such.
IMO you’d have the most luck going through the bank first to see if they will refund the charges. The ATM charge is only slightly short of outrageous. If you don’t have the funds then the machine shouldn’t (morally, don’t know about legally) give you the cash.
If you have no luck with the bank or if they only refund part of the charges then have a go at the daycare centre.
Was it the daycare cheque that bounced or the two cheques that went through afterwards?
Actually, upon further review, here is what happened:
The daycare check “bounced” but the bank paid it, and charged me $33.
I went to the ATM Monday and took out $20. They charged me $33 for that.
Then last night (Tuesday) I went to the grocery store and used my debit card. It went through, and the bank charged me another $33 for that. A total of $99, but no other “bounced checks”.
I think you’d have a good chance getting the bank to refund the ATM and debit card charges.
IANAL but I seem to recall that issuing a check that you know you do not have the funds to cover is known as “check fraud”. So while you might be able to to get some amicable resolution, I’d say you’re out of luck as far as the Law being on your side if no one wants to cooperate.
I’d be inclined to change banks, though. If they were looking out for your interests they would pay the check (and charge you an overdraft fee), but the ATM and debit card transactions (initiated on an overdrawn account) should have been denied.
Point-of-payment and ATM networks do not have access to real time information. When you use your debit card the information on the mag stripe is read and compared to a flat file at a payment processing company location. This flat file may or may not contain balance information. If it does have account balance information that data will be, at best, from the prior business day. The payment processor’s computers do not have a direct link to the bank computers, so there is no way they can share data in real time. The flat file may contain, instead of the last business day balance, a withdrawal limit generated by an algorithm. The algorithm data may include things like your average balance, length of time the account has been opened, how you’ve handled the account, etc.
Network ATM’s work much the same way, relying on a flat file at a processing center. In some cases, even the bank’s proprietary ATM’s are not hooked in to the mainframe.
IOW, it is very possible to use an ATM card or debit card on an overdrawn account, at least for a short time.
IANAL either, but I heard (from another Not-A-Lawyer) that a post dated check is a promisory note, and doesn’t have the same legal ramifications as writing a current-dated insufficient funds check. Could someone who knows comment on this?
If dates on checks are only “adivosry” what about notations on checks that say things like “valid for only 90 dats from date above.” If I can limit a check’s cashability with such notations why can’t I with post-dating?
I think the validity of post-dating differs in different countries. I have lived mostly in the UK, where I believe the date to be binding, as confirmed by here.
I had a UK friend who came to the US and did not want to be bothered with having to remember a mortgage payment every month, so he sent them 12 post-dated checks at the start of the year. Oops.
Death Ray,
The way many bank transactions work, your balance is not updated in real time. The computer that told the ATM you had enough funds to cover the transaction was acting in “good faith” based on its most recent update as to funds available in your account. Its information may have been anywhere from 1 second to 71 hours , 59 minutes, out of date.
Realize also that merchant transactions do not always occur on the day you engaged in commerce with the merchant. I’ve had debit card transactions I performed at gas stations clear 7 weeks after I swiped my card.
The financial services industry takes the view that you should be the one keeping your account from going negative, and that they’ll help you, but not staitjacket you.