Down Payment $ Not Taken

E

emcampbe

New Member
Jurisdiction
California
We recently bought a new car (for the first time in 9 years!) from a dealer here in the Bay Area. We put a significant down payment for the car, and financed the balance.

We divided the down payment into a credit card payment for $3K - the max they would take on a card - and wrote a personal check for the balance of the down payment - several thousand dollars. Per agreement between both the sales guy, finance manager and us, they were going to wait 3 days to deposit the check, as the funds were transferring over to our checking account, but wouldn't be there next day because it was a weekend. Finance manager explained we needed to date the check that day, and they didn't do deposits until Wed. anyway, so wouldn't deposit it before then anyway. So far...so good.

Apparently, they decided to attempt to cash the check next day, and the check was rejected due to insufficient funds. I found out not because the dealer contacted me (they didn't!), only when I got a letter from my bank a few days later saying they didn't cash said check. I immediately reached out to the dealership to discuss, confirmed what happened, and they agreed they would go ahead and re-deposit the existing check (I told them I could write another, but wanted to make sure they returned the existing so there weren't two attempts to cash funds).

Now we are at almost a month after the original transaction, and the money I have waiting for them remains in my checking account. Earlier this week, I was able to get in touch with the dealership business office, who now confirms they 'successfully' cashed that check and we are all good...I called my bank to ask what they think, and they confirmed to me that there was no additional attempt to cash the check/deposit the funds.

I'm not sure what to do next. I don't want to write an additional check (as mentioned, don't want to have the prospect of two checks trying to be cashed), but also don't want to be accused of attempting to defraud, etc. I'm pretty convinced that the dealership will eventually figure out they don't have the money from this transaction. I just want to the transaction to be over and done with, knowing I paid what was owed on the transaction. If this was a $20 payment, I'd leave it be, but given the amounts involved, want to make sure I'm covered.

Any advice on how to move forward?
 
Put a stop pay on the original check. Get written confirmation from the bank that the stop was successful. Get a chashier's check for the original amount. Take the cashier's check, personally, to the dealership. Give the dealer a copy of the stop pay document (keep a copy for yourself) along with the cashier's check. Get a receipt, if possible.

Don't blame the dealer for any of this inconvenience. You're the one who wrote the check without the money in the account to cover it.
 
emcampbe said:
Any advice on how to move forward?
Click to expand...

You could put a STOP PAYMENT ORDER on the check in question by visiting a branch office of the bank on which you drew the check, as @adjusterjack directed.

Once the STOP PAYMENT ORDER has been created, you withdraw the EXACT amount of money stated on the check. You visit the dealership in person, advise them you've placed a STOP PAYMENT ORDER on the check, but you've arrived to redeem the check, while turning over the EXACT AMOUNT stated on the check in cash.

Ask the dealership to provide you with a RECEIPT stating the receipt of the cash you're ready to turn over to the dealership, AFTER the check and receipt for the cash is in your hands!!!!

Yeah, a goofy process to be sure.

Human beings often create some very complicating events/circumstances, don't we????

:eek: :rolleyes:
 
Did you know that if you write a check and deliver it, knowing that you don't have the funds in your checking account at the time it is delivered, even though you intend to cover the check before it clears a bank, that is a crime in all 50 states? You can't present a check that doesn't have sufficient funds to cover the check. Even if it was done by mistake or oversite.

Always transfer the funds before you deliver the check to avoid any problems.
 
welkin said:
Did you know that if you write a check and deliver it, knowing that you don't have the funds in your checking account at the time it is delivered, even though you intend to cover the check before it clears a bank, that is a crime in all 50 states?
Click to expand...
I can't speak to other states, but there's more to it in CA. For it to be a crime, there has to be an intent to defraud, which the OP didn't have.

To be thorough:

Law section

leginfo.legislature.ca.gov leginfo.legislature.ca.gov

Law section

leginfo.legislature.ca.gov leginfo.legislature.ca.gov
 
Zigner said:
I can't speak to other states, but there's more to it in CA. For it to be a crime, there has to be an intent to defraud, which the OP didn't have.

To be thorough:

Law section

leginfo.legislature.ca.gov leginfo.legislature.ca.gov

Law section

leginfo.legislature.ca.gov leginfo.legislature.ca.gov
Click to expand...
These kinds of discussions usually lead me back to one of my favorite law school professors, Professor Richard Conviser.

kentlaw.iit.edu

Richard J. Conviser

Professor Conviser, who teaches courses in antitrust, corporations, business associations, and conflicts of laws, received his bachelor's and law degrees from the University of California, Berkeley,
kentlaw.iit.edu kentlaw.iit.edu

This conversation involves another one of my favorite law school subjects:

malum in se



Malum in se is a concept in criminal law referring to an inherently immoral act, regardless of whether the action is criminalized. Common examples of malum in se actions include arson, murder, and rape.

Malum in se offenses are usually based on common law crimes where a specific intent requirement is incorporated into the definition of the offense.

Malum in se differs from malum prohibitum, which is an act that is illegal but not necessarily immoral.

Malum in se acts may also be called malum per se or crime malum in se.

The concept of malum in se has also been applied in contract law, where malum in se contracts are absolutely void.

In contrast, malum prohibitum contracts are only void if they fall within the area of conduct that a legislature intended to deter.

[Last updated in July of 2023 by the Wex Definitions Team]

www.law.cornell.edu

malum in se

www.law.cornell.edu www.law.cornell.edu
 
Thanks for your comments and thoughts.

The stop payment along with a cashier's check sounds like the best idea to me. Will ensure they have guaranteed access to the funds, and will leave me knowing I've done the right thing. I'm actually surprised the car dealer suggested and accepts a personal check...sounds like it's a process rife for intentional and unintentional issues - it just seemed the easier way. In hindsight, I guess not.

The only reason I dated the check that day was because the dealer insisted it needed to be done that way and wouldn't be cashed before that Wed. Obviously, they weren't true to their word. In hindsight, would have been better to post-date the check (which I know, doesn't exactly guarantee it can't be cashed early...), or even better yet, waited to complete the transaction until the transfer had completed. It was in process at the time of transaction.

As I said, I had no intention to cause issues or defraud...I only wrote the check for that day due to dealer insistence. Lesson learned, I suppose.

Again, appreciate everyone's input and advice.
 
emcampbe said:
Obviously, they weren't true to their word. In hindsight, would have been better to post-date the check
Click to expand...
Just as a note, the dealer wouldn't (shouldn't) have accepted a post-dated check because doing so would negate some of the protections against bad checks that the law offers.
 

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