CASHING A CHECK WITH A RESTRICTIVE ENDORSEMENT / IS THE CHECK NOW PAYMENT IN FULL
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It is important for creditors to consult with a lawyer. Our collection law firm is frequently asked to answer the question can cashing a check with a restrictive endorsement “paid in full” mean that they have accepted the payment as full payment despite the fact there is still a balance due. This a complicated area and we urge our client’s to call our collection law firm and speak to our collection lawyer.
Any writing affixed on a check or words contained in some form of document, i.e., email, letter, that refers to an accompanying check is considered a “restrictive endorsement.” Creditors should be versed on the effects of “restrictive endorsements” as cashing a check with a restrictive endorsement could lead to the conclusion that the debtor has achieved an “accord and satisfaction,” payment in full. At our debt collection law firm, we receive many inquiries from our debt collection clients on whether or not to cash a check tendered by a debtor with a restrictive endorsement. Our collection attorneys always err on the side of caution and advise our debt collection clients not to cash the checks.
Our collection law firm also receives inquiries to our collection lawyers about situations where a check is sent to a lock box and cashed. Fortunately for our debt collection clients, all states, have adopted the recent revision of the Uniform Commercial Code, Article 3, Section 311 (UCC3-311), which is commonly referred to as “Safe Harbor.” The Safe Harbor principal is applicable to payments received in a system that is serviced by a third party (such as a bank lock box or a post office box). Typically, this is the creditor’s banking institution whose lock box is serviced by banking personnel lacking the knowledge and expertise to make an informed decision relative to restricted endorsements.
The Florida statute is found below but generally a creditor should look to state statute to find a similar Safe Harbor provision such as UCC 3-311. The UCC 3-311 specifies within 90 days of depositing restricted payment from a buyer, the seller can send one of their checks back to the buyer in the same amount of the restricted check and preserve the creditor/seller’s legal remedies. The creditor should make sure the “reimbursement” check should be sent back via some mode requiring proof of attempted delivery. Our collection clients should note the buyer/debtor need not cash the “reimbursement check;” as the creditor/seller’s right to proceed with litigation is preserved by the act of sending back the amount originally submitted under endorsement text or provisions.
Our collection lawyers also counsel our debt collection clients to make sure they put specific language in their contracts and or credit applications pertaining to where and to whom payment should be sent. This is important because the Uniform Commercial Code provides that if a credit grantor is made aware of a dispute prior to any type of final payment being made the creditor’s claim for an overdue balance is not discharged if within a reasonable time before tender the creditor stipulates that a restricted instrument (restricted check) must be sent to a designated person, office or place. If those instructions are not followed, then creditor remedies are available.
Florida Statute Section 673.3111 Accord and satisfaction by use of instrument, provides:
(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.
(2) Unless subsection (3) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.
(3) Subject to subsection (4), a claim is not discharged under subsection (2) if either paragraph (a) or paragraph (b) applies:
(a) The claimant, if an organization, proves that:
1. Within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place; and
2. The instrument or accompanying communication was not received by that designated person, office, or place.
(b) The claimant, whether or not an organization, proves that, within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (a) 1.
(4) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.
Our debt collection clients are often confused on what they should do with a check with a restrictive endorsement ” Paid in Full.” Please feel free to contact our debt collection lawyers at our debt recovery law firm. Our collection attorneys are always willing to discuss a collection strategy to help our client’s minimize risk and bad debt.