NSF Surprise Debacle

[NickViper1024]

My question involves a consumer law issue in the State of: TEXAS

A few days ago, I wrote a check for my monthly rent out of the wrong checkbook, we'll call the bank behind this checkbook Bank B. The bank behind the intended checkbook Bank A.

I get a call and email from Bank B explaining that I had until noon Central that day to propose a means to resolve the situation before they returned the check. Returning the check would impose several fees from Bank B, and my landlord, who also gets dinged for a returned check.

I submitted one proposal to the NSF "agent" who was assigned to my situation. It was shot down and she was able to explain adequately to me why that suggestion would not work. Later, I came up with another idea that fit within the parameters she outlined and submitted it to her via an email at 11 AM CST. Unfortunately, this agent does not like to communicate via phone but rather email. So I sent her an email and I quickly dashed out the door to move funds around before the noon deadline so everything would happen expeditiously as I have been advised should be done.

After going through the process of initiating, canceling, and moving funds around from several different accounts to facilitate my proposal, I get an email back from her postmarked AFTER noon saying she had marked the check for return at 10:30 AM CST. Now I am in a situation where I owe several different fees to Bank B and my landlord who was dinged by their check running service for a returned check.

I have been advised by a former attorney (who I merely know as a friend) that I should sue Bank B for not allowing me the full time they stated in writing they would give me to resolve the situation. I do, however, want to get a second opinion on this issue.

If I were to sue them, my intent would be to have the bank in question compensate all parties for the returned check that COULD and was able to be made whole within due time. Do you think I have a "leg to stand on" in court?

[Mr. Knowitall]

Since you have a lawyer telling you to sue, I'll play the devil's advocate. You can bounce my negativity off of your friend, and see what your friend advises you to do.

You were told to make arrangements, you made a proposal and it was rejected. Your interpretation of what the bank's agent told you is that you were entitled to keep pitching ideas until the clock hit high noon, but it's perfectly reasonable for the bank's agent to have thought of that as a deadline for making a single proposal, not to initiate a negotiation or series of proposals before noon.

Further, you haven't even told us that the new proposal would have been acceptable to the bank's agent, had it been received before she took action on your account.

You also haven't told us where Bank B's call originated. If they're calling from in New York, "before noon:" may have meant 12:00 EST, at 11:00 CST wouldn't beat the deadline.

[jk]

since the deadline was proposed as noon, CST and she marked the check returned at 10:30 CST, I would see this as a breach of the agreement.

You cannot sue for others losses until they sue you for their losses, at which time, they do become your losses.

[NickViper1024]

Since you have a lawyer telling you to sue, I'll play the devil's advocate. You can bounce my negativity off of your friend, and see what your friend advises you to do.

You were told to make arrangements, you made a proposal and it was rejected. Your interpretation of what the bank's agent told you is that you were entitled to keep pitching ideas until the clock hit high noon, but it's perfectly reasonable for the bank's agent to have thought of that as a deadline for making a single proposal, not to initiate a negotiation or series of proposals before noon.

Further, you haven't even told us that the new proposal would have been acceptable to the bank's agent, had it been received before she took action on your account.

You also haven't told us where Bank B's call originated. If they're calling from in New York, "before noon:" may have meant 12:00 EST, at 11:00 CST wouldn't beat the deadline.

That's exactly why I'm seeking a second opinion. My lawyer friend was a corporate lawyer for thirty years, and he happens to be my Financial Adviser for Bank B. He advised me to sue "off the record" of course because it could be perceived as a conflict of interest. However, I feel as though he may be trying to blow smoke in my direction just so I feel like he's on my side.

As for the nitty gritty details: The bank is located in Central Standard Time as well as I am. And yes, they acknowledged that the new proposal would be acceptable had it been enacted before the noon deadline.

I posed this same situation to another forum for legal advice and they quickly suggested I have no standing because everything the bank has done up to this point was simply a courtesy gesture, not a requirement. That it doesn't matter what the deadline was, the bank could do "whatever they want" with the NSF issue and that's that. However, Bank B's Customer Service has told me frequently that the noon deadline is mandated by the Federal Reserve.

And you guessed it right: This whole argument centers around the idea that I was under the impression that I had until noon to come up with a plausible solution. However, after more digging, there's another twist to this story:

Bank B returned my check early because my financial adviser advised the agent that we had initiated a Stop Payment on the check. We were advised by Bank B's Customer Service that if we initiate said stop on the check, we could at least avoid any NSF fees from Bank B, and I could deal with the check payee under my own terms later. Knowing that the window of opportunity was closing fast, we decided to initiate the stop payment immediately. Once the agent learned we were initiating a stop payment, the agent returned the check and told us that we would incur an NSF charge - contrary to Customer Service' information. Furthermore, the agent actually informed us promptly that she would return the check by sending an email stating plainly "I will return the item in question per your comments". We did not think to interpret this email as "the item will be returned IMMEDIATELY" but rather, the item will be returned after the noon deadline.

While I'm not a lawyer, I'm guessing there are a couple legal questions that need to be settled here:

1. If a bank is courteous enough to give their clients a window of opportunity to resolve an NSF issue, are they creating - in effect - a legal contract around that window of opportunity?

2. Since THEIR Customer Service department advised me that I would not incur fees via a stop payment, and that turned out to not be true, is it plausible that they are liable for the losses I incurred because I acted off their mis-information?

Again, I have been advised by one former lawyer to sue, and I have been advised by another legal board that I have no standing in court because the window of opportunity they gave me is a courtesy and not something they are contractually bound to.

At this point, I have decided to file a complaint with their Compliance department in their corporate office. I am sending a certified, return receipt letter via USPS explaining the situation and I'm hoping that they will simply "be nice" and cut a small check for my losses.

Also - I have heard of certain lawyers who will give free advice strictly "over the phone". Can anyone vouch for this as a good way of getting legal advice? Or is it akin to talking to a car salesman about buying a car off their lot?