If the check gaurantee system approves the check then the merchant is covered even if the check bounces; they’re free to overide the prompt, but then they’re out of luck if the check bounces. And even if the customer never bounce a check at that particular merchant the system can still decline the check if they’ve ever bounced a check at any merchant that uses that particular system. One of the many reasons I’m glad I’m done with retail.
Most business owners do attempt to contact the customer before puting the check up. It’s the ones that blow them that get their checks displayed.
I looked at several of the check guarantee services. They were not economically practical for me. For my personal situation I feel I was better off just discontinuing accepting checks.
That is correct. But the merchant is required to maintain a bad check list. If the name’s on the bad check list, the merchant is not covered even if the system approves the check. That can happen because the system doesn’t take names into account. This may not be the case universally, but it is for the two check guarantee systems I’ve worked with.
No cite, but I seem to recall some case law about this within the last ten years, and the verdict was that merchants could do it. Can’t remember anything else about it.
I don’t think there is a debate on whether the merchant can display the check or not (he can). The question is, if he does post your check and a thief gets your bank account information, is the merchant liable to you.
With a checking account number and knowing the bank at which it is held you can initiate various kinds of transactions against that account without needing any additional information (this is why phishing and phone scams so often are geared towards just trying to get you to provide an account number). This is also why when you log into most online banking sites they will mask your account numbers even from you in most situations, you generally don’t need to know it and so why even have the risk of displaying it).
If shaming is the goal (and it must be since generally it wouldn’t be difficult to place them so that only the cashier can see), it would probably be polite practice to at least black out the MICR line on the check so that you aren’t making publicly available the account number. That said, scouring local small businesses for publicly displayed checks is a horribly inefficient way to get the information and it’s probably a relatively small risk in the grand scheme of things.
That said, if I were a small business I’d just stop accepting checks since it isn’t 1987 any more. (Only a 1/4 serious comment, though in another decade it will probably be a fully serious comment.)
I use checks exactly 12x per year - rent. The point I was getting at (and thought was clear, but perhaps not) was that all financial transactions have a certain level of presumptive confidentiality. Otherwise, things like paychecks (paper or ACH) would be considered public and, as we all know, salaries are generally considered sensitive (for various reasons that largely protect the employer from salary negotiation problems).
Also, check-writing has largely been replaced by debit card transaction, which are usually processed through Visa/MC/AmEX/Discover/Whatever, and are covered by the Payment Card Industry Data Security Standards, which require the protection of all of that data (failure to comply can result in a revocation of privileges to process those payments, which equals death to the merchant).
This seems to be a bad place to harvest account numbers, though…one thing that’s known about this account is that it’s dry! There ain’t no money in that account! Or at least, not enough money to cover the check.
I haven’t seen these checks posted lately, but when I did see them, they generally were behind the counter, and it would have been difficult to copy down any bank numbers without being obvious about it. Sure, a person with an eidetic memory could glance at the check and remember the numbers, but most of us wouldn’t be able to remember nearly 20 digits of random numbers. And people who have such an ability can probably find more profitable ways to use it.
Here is my case. The police, pursuant to state law, put posters up in liquor stores forbidding sales to a certain person. This attached a “badge of disgrace/infamy” to the persons name. Like I said though, this is a color of law case.
Most checking account numbers are only 9 digits and taking photos is much easier these days.
Like I said, definitely a low risk environment and we hand out credit card account numbers to people all the time and let them walk away with it to a place we can’t see.
That said, if you have an online banking account, for most sights, with just the information available on a check I am about 80% of the way to an account takeover depending on how smart you’ve been in setting up your security.
Unlikely to be a target of skilled identity thefts and more likely to be a random moment of opportunity for someone. But still, since exposing the MICR line plays no role at all in the shaming (or in preventing the cashier from accepting future checks), if I were to do such a thing I’d probably still redact it.
As for whether people smart enough to do it have something better do with that smarts, it seems logical. But a lot of semi-smart people spend a lot of time engaged in petty theft. And all a bounced check means is that there was no money in it at one point in time. Give me one of your blank checks and I could regularly steal all of whatever money you put into it as well as using it as a middle-man account for money I am stealing from other people.
But again, in the grand scheme of things not the highest risk to worry about, but it is why I only keep enough money in the account on which I draw checks to cover the very few checks I write (which also increases the risk I’ll bounce one even though I have plenty of money for someone to steal).
I’m not sure what you mean by “this is a color of law case.” “Color of law” does not designate a modern doctrinal area of law (as one might call something a torts case, or a CERCLA case, or a Dormant Commerce Clause case).
In any event, the case you cite is a due process case. Is that what you mean by “color of law”? If so, you would probably be well-served to conform to the standard nomenclature.
Don’t tell me you have never heard the phrase “Color of law” or “Under Color of law”?
My case’s internal citation;
[Footnote 1]
28 U.S.C. § 1343 provides:
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person. . . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”
Also the Civil Rights Act of 1871, more commonly known as a 1983 action, is a color of law deprivation of rights remedy.
Simply, a govt. actor has deprived a person of a right unlawfully.
The Ohio revised code has a criminal section for such;
2921.45
No Public servant under color of his office, employment, or authority, shall knowingly deprive, or attempt to deprive any person of a constitutional or statutory right.
I have indeed heard of the phrase. It is an antiquated term for what would today typically be called a “state [or government] actor.” In some marginal cases, the state/government actor nature of party accused of a civil rights violation (in, say, a § 1983 action or a Bivens action) may be disputed. But in general, it is pretty obvious, so there isn’t really an area of law called “color of law” (or even “state actor”), such that it would generally be worthwhile to talk about “color of law cases” or “state actor cases.”
I do know that “color of law” is just the kind of sententious-sounding old-fashioned legal terminology that autodidacts love, focus on, and overestimate its importance to the actual workaday practice of law. (Similar to Stoid’s obsession with distinguishing between law and equity in a non-Seventh Amendment context).
In any event, it is indeed peculiar that you think the case is about “color of law” because it is referred to in a footnote. First, the case is about due process, as a reading of the main body of the opinion will quickly disclose. Second, although judicial opinions aren’t always models of clarity, do you really think, if this case were about legal colors, that they’d hide the ball by referring to it only in a footnote?!?
Now, there are some famous footnotes out there (Carolene Products Footnote Four, for instance), but in general, if a phrase appears only in footnotes, it is because it is a tangent. By the way, although Footnote Four is indeed famous, consistent with the explanation I gave in the foregoing, Carolene Products itself is not about heightened scrutiny.
My law dictionary has an entry Color of law, and it lists 42 USC 1983 as reference source. I don’t have it in front of me, but another reference was from a case internal citation “mere semblance of law” but can not remember the reporter series.
You may consider it outdated but many lawsuits term it that way when a complaint is filed against the police, here is one example. This case made national headlines and I have the complaint in my notes. I have read others with the same terminology.
At all relevant times, Defendants Kuehnlein and Doe were acting under color of law and under color of authority as police officers, employees, and agents or servants of the City of St. George, Missouri and as agents of the State of Missouri.
To add, I know it is not an area of law, such as torts, contracts, alienation of affection, replevin, etc., just that is is still widely used as a term when actions such as 1983 are filed.
Oh speaking of Bivens, the phrase is used a # of times, and not in fn’s;
Here is one;
…The injuries inflicted by officials acting under color of law, while no less compensable in damages than those inflicted by private parties, are substantially different in kind, as the Court’s opinion today discusses in detail…
I can’t find it now, but the Iowa Attorney General came out with an opinion that’s being followed by local government, and maybe by commercial businesses. Basically, it says that publicizing delinquent accounts violates something. I’m not sure if it’s privacy related or if it’s related to new credit rules or what.
The effect (for cities) has been that cities are not allowed to make delinquent utility accounts public. The only people who can know if someone’s service is being cut off are the people responsible for cutting it off. The amount of the delinquency can be shared, because city officials need the financial info, but not the customer’s name. The reasoning is that potential employers and landlords might see the name and refuse to hire or rent to that person.
None of the stores around here have bad checks on display anymore, and maybe it’s because of the AG opinion. I’m also not seeing 5th Degree Theft charges in the paper anymore. 5th Degree Theft is the legal term for NSF checks.
I have the opinion on file somewhere, if anyone’s interested.
