Debt collectors will often ask you set up a payment plan for to pay a debt over time. And typically they going to want more than just a promise to make the payments, they want you to give them your bank account information and sometimes even ask you to write them post-dated checks. In this article I am going to discuss the law under the Fair Debt Collection Practices Act (FDCPA) as it applies to debt collectors accepting post-dated checks.
The Debt Collector Must Give You at Least 3 and Not More than 10 Days Notice Before Depositing the Check
If you agree to a payment plan and provide the debt collector with post-dated checks (i.e. checks that are written out with a future date), then the debt collectors must give you written notice at least three (3) business days (and not more than ten (10) business days) before the debt collector deposits the check. If they don’t provide you with written notice is is a violation of the FDCPA.
The thought behind this law is it would be unfair of a debt collector so solicit post-dated checks and then deposit them without the debt collector knowing if there is sufficient funds in the checking account to cover the check. The notice provision of the FDCPA allows you to know when the debt collector will be depositing the check so that you can plan accordingly.
Debt Collectors Must Not Threaten Criminal Prosecution
The FDCPA also prohibits debt collectors from soliciting post-dated checks by threatening consumers with criminal prosecution. As I have written about before, you are not going to go to jail over an unpaid credit card, but that doesn’t stop some rogue debt collectors from threatening it. If a debt collector threatens you with criminal prosecution to get you to agree to submitting post-dated checks, that is a violation of the FDCPA and you can sue them for damages.
Debt Collectors Must Not Deposit the Post-Dated Check Prior to the Date on the Check
The FDCPA also prohibits debt collectors from depositing a post-dated check on a date prior to the date with which the check is written. If your check is dated May 5th and the debt collectors deposits it any day prior to May 5th, they have violated the FDCPA and you can sue them for damages.
My general recommendation is that you do not provide post-dated checks to debt collectors. The better option is agree to send in monthly payments or to negotiate a one-time lump sum payment. By giving post-dated checks to are giving up some of the control over your bank account and if you happen to run into a difficult time when the check is to be deposited it could result not only in a bounced check but you could end up with additional fees from your bank.
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John Skiba, Esq.
We offer a free consultation to discuss your debt problem and help you put together a game plan to eliminate your debt once and for all. Give us a call at (480) 420-4028