I’m going to tell one on myself in the of exposing an abuse in retail banking that is likely news to you. It certainly stunned everyone that has heard my little tale so far. I’m hoping that readers who know of or have had similar experiences will pipe up in comments.
My Check Misadventures
My bank is TD Bank, which is now the 8th largest bank in the US.*
Earlier this year, I mistakenly put a check to my cat sitter in the payment envelope for my health insurer, Cigna. Not only did Cigna process the check despite the amount being vastly smaller than the amount shown on the little form sent back with the payment (as in someone had to key in a clearly different amount, hence look at the face of the check) but my bank made payment to Cigna even though the check was made out to “Jeannie A”.
The only way I figured out what had happened was by weird happenstance. Of course, Jeannie the cat sitter politely said she had not been paid. I was pretty sure I had paid her and the bank said the check to her had cleared, so I told her that and asked if she could have deposited it and forgot. She was not happy. I later got a bank statement that included an image of the processed check.
I also got a monthly statement from Cigna asking me to pay a weird amount. Not trusting Cigna as far as I can throw them, I called the billing department to find out what was up. The rep was able to pull a scanned image of the check they had gotten from me and told me the amount and that it was made out to Jeannie A. I was stunned that that could have happened.
Fast forward. Earlier this week, I made out some checks, including one drawn on my personal account to the IRS (made out to “United States Treasury”) to pay my Federal income taxes due. I also wrote a slightly bigger check to me from my business account. Later the same day, I realized I had put the check on my business account made out to Susan Webber in the envelope to the IRS.
Now in theory, either the Department of the Treasury or my bank should see the error and not process the payment since the payee is Susan Webber, not United States Treasury. But based on what happened last time, I realized the payment could go sailing through again. So I went to my bank branch in person to have them explain why the last check to the wrong payee went through so I could make an informed decision as to what, if anything, to do.
The branch staffer I spoke to first wasn’t sure and brought over the “Store Supervisor,” Hisabel Santiago. Ms. Santiago said that the Treasury processed thousands of checks so she was sure they’d present my check to the bank. She said the bank would then pay it because they processed checks from the Treasury in bulk.
I said something like, “Wait a second, you are telling me that you don’t verify the information on the check to see if the payment should be made? How can that be right? That check isn’t made out to the Treasury. You aren’t allowed to do that.”
She said, and this is an exact quote: “We don’t have to obey the law.” At least a half dozen customers were within earshot and started staring at us.
I said, “That’s not correct. I know something about bank regulation. You aren’t permitted to pay out to the wrong payee.”
She repeated “We don’t have to obey the law,” more loudly that the first time. She added that if the payment went to the wrong party, it was between the payee (I think she actually meant funds recipient) and the account holder, and I could take them to court.
I said, “You are telling me even with forewarning that you are prepared to make payment to the wrong party.” She said I could pay $30 to stop the check, which at that point I had no interest in doing.
I said, “I have a business and when I bring checks to the teller to deposit, if there’s a small discrepancy, they refuse to accept the check.” Ms. Santiago said that was different, it was a business account (which of course makes no sense, since the payment that mistakenly went to Treasury was also drawn on a business account).
During that discussion, I felt I had entered into the Alice in Wonderland version of banking. So can banks just make it up as they go? There no chain of endorsements between the payee and the person depositing the check, yet the bank insists it’s kosher. If it really doesn’t matter who the check is made out to if it winds up in the hands of a bulk processor, does any paperwork generated by the consumer matter if the bank arbitrates based on what is cheapest and most convenient for it?
Effectively, we have two legal regimes in operation: one for the bulk processing of checks (for big entities) where anything goes, and one for small fry who have to dot every i and cross every t. For anyone who followed our coverage of foreclosure abuses, you can see the same pattern: a “might makes right” attitude; the prioritization of operational efficiency over integrity of processes; and most important, an open admission of flagrant disregard for the rule of law.
Yes, Virginia, This is a Big Problem
Now my sending the wrong check in this case isn’t ultimately a problem (so please refrain from offering helpful ideas, I’ve already sorted this out with my accountant). But you can easily see from my two different screw-ups the sort of mischief it can cause. Remember, in most cases, people won’t realize the wrong party got the check until it is too late, like the first instance, with Jeannie and Cigna.
So who gets hurt?
The payee who it looks like got payment but really didn’t. I was convinced I had paid Jeannie and the bank’s records said so too. So she would have been screwed had I not got inquisitive about what looked like an error in my favor at Cigna. So the person who didn’t get the check intended for them is harmed. The person who wrote the check, either out of neglect (not figuring out what went wrong) or bad faith can tell them the check to them cleared and bugger off.
The check-writer if the person getting the wrong check successfully deposits it and refuses to give the excess over what they were due back. You can see what a nightmare this is. What if the person got extra money refuses to return the overpayment or drags their feet about giving it back? People or businesses who are cash strapped could really suffer even if the other party is honest but slow to get the money back.
Is This Kosher?
To get a sanity check, I spoke to Walker Todd. Todd worked for the New York Fed as an attorney and later the Cleveland Fed as assistant general counsel and research officer. He has since (among other things) taught law, history and economics at the graduate level, and is a research fellow at the American Institute for Economic Research.
His initial reaction was to get exercised about the size of the stop payment fee. “A good rule, since TARP, would be that banks should accommodate their consumers to the same extent that the Fed accommodate the banks.” The Fed now engages in time-sensitive pricing, so if a bank puts through a stopped-check order at 9:45 AM, the Fed’s charge is much lower than at 3:45 PM (the banking day ends at 4 PM). He thought the cost to the banks of stopping a check is well under $5 and questioned the policy justification for allowing banks to charge such high amounts (stopped check charges used to be on the order of $10 to $15).
I said I though the bigger issue was the consequences of the depositor’s money winding up in the hands of the wrong party, particularly if the check that went astray was large. Todd said that the banks had the right to reverse a payment made in error, but they weren’t usually willing to do that.
I also contacted a law professor who is an expert in banking and the Uniform Commercial Code, who asked not to be quoted by name since he did not have a hard copy of the UCC with him to double check, and it has a lot of oddities hidden in is comments. His quick and dirty response:
Here’s the answer: First, are you sure your check was presented as a check, rather than as an ACH item? A lot of checks are now converted to ACH. If it was converted to ACH, different rules (the NACHA rules and possibly EFTA/Reg E) apply.
Here’s the rule: UCC Article 4 (4-401) says that the bank can only debit your account if an item (read a check) is properly payable. “An item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.” This check was not properly payable to Treasury. It was only properly payable to Susan Webber. That means Treasury was not a “person entitled to enforce” the check. The bank should recredit you promptly and to the extent you were hit with fees, etc. because of the improper debit, they should recredit those, as well as any interest you otherwise didn’t earn.
Your bank might have an argument that you are precluded from raising the issue because of contributory negligence, per UCC 3-406. Cmt. 4 to 3-406 actually gives an example of a check mailed to the wrong party…but the example is of a check mailed to the wrong party with the same name as the correct one (two John Smiths). So, I don’t think they really have a viable contributory negligence defense.
The bank should be able to recover from Treasury. Treasury violated its UCC 3-417 presentment warranty that it is a PETE (and if there was an intermediary bank, the UCC 3-416 transfer warranties would be violated because the signature of Susan Webber as payee wasn’t authorized).
In the modern checking system, human eyes rarely look at checks. Most small dollar checks are never examined, while largely dollar checks tend to be sampled. The cost of being careful outweighs the cost of dealing with mistakes.
The “we don’t have to follow the law” line is just ridiculous BS.
I have a sneaking suspicion this sort of mistake happens more than people want to admit. But until my rash of goofs this year, I’d blithely assumed that a misdirected payment would not go through.
In the 1990s, I had an account at US Trust, and I’d occasionally get calls as to whether to pay particular checks because they thought my signature didn’t look right. Thus not all that long ago, banks were monitoring check processing to make sure the payments made were valid.
Of course, having the bank do what you assume would happen, that it won’t pay out on a check that gets in the hands of the wrong person, will mean you’ve got a missed payment somewhere, but you don’t have the additional complication of having to do forensics to figure out what went awry, unscramble financial eggs, and in a worst-case scenario, lose the money or have to engage in a pitched battle to get it back.
If you’ve made or know someone who has made a mistake like this, please tell your story in comments, including the bank name and roughly when it happened.
The reason for seeing if this is indeed a real problem is that in an odd bit of synchronicity, the Fed is soliciting input on how to improve the payments system, so comments on this post could help inform a submission to the Fed. In addition, it’s also curious that the CFPB seems to be missing in action. Richard Cordray showed in the subprime mess that he was not at all proactive, and it was only when he looked like he might look bad relative to other attorney generals in foreclosure-ridden states that he saddled up to take action. He looks again to be acting on the squeaking wheel principle as the head of the CFPB. So the onus is on you to help make noise!
* I never picked TD Bank as my bank. I was a customer of Commerce Bank, which was a very customer-friendly bank whose branches stay open really late and are open on weekends. TD Bank bought Commerce.