by Mike Masnick

Filed Under:
banks, checks, clearing, scams

Shouldn't We Fix The Check Clearing Loophole That So Many Scammers Abuse?

from the simple-questions dept

Slashdot points us to a recent story about a guy who lost his lawsuit against a bank, over a variation on a classic Nigerian email scam. The scam is one we've discussed many times in the past: somehow the victim gets a big check, which they're expected to deposit in a bank. After the check "clears," the victim/recipient is supposed to transfer a large chunk of that money to the scammer, on the belief that they get to keep whatever is left over. What really happens is a few days after the check "clears," the bank finds out it's fraudulent, and tries to void the transaction. But, by then, the victim has already transferred out a big chunk of money (and the scammer has already taken all that cash out of the bank and disappeared) -- leaving the victim footing the bill, with the bank expecting them to come up with the missing cash. In this case, the scam took on all the familiar facets of this scam:
In March 2009, Brian Peters received an email from someone purporting to be a citizen of Malaysia. The e-mail informed Peters that certain third parties in the United States and Canada owed the purported Malaysian money, but that "they can not transfer the funds to any bank account outside America continent due to their new company policy [sic]." He asked Peters to "assist me in receiving the funds and forward to me." He offered to pay Peters 12 percent of the money. Peters agreed after apparently negotiating an increase of his fee to 15 percent.

Peters deposited the $808,988.90 in checks received from the purported Malaysian at Chino Commercial Bank. After the bank notified Peters that the checks had cleared, Peters wire transferred $468,000 to Hong Kong. Shortly thereafter, the checks were dishonored after the bank detected that they had been altered. Since Peters was personally liable for any overdrafts on the account, which had only a few thousand dollars, the bank sought to attach property owned by Peters to collect on the overdraft. The trial court granted the bankís motion to attach against Peters in the amount of $458,782.60.
This certainly isn't the first such lawsuit. We wrote about a similar case two years ago, which involved some scammers tricking a law firm (who really should have known better). The reason this scam works over and over and over again is pretty simple: most people have no idea that when a check "clears," it's not actually been validated. This is apparently due to various laws that require banks to make money from checks available within a very short period of time. So the way banks deal with this is to just make the money available, and if they later find out that the check was fraudulent, they pull back the money. But, of course, most people don't know this and assume (somewhat reasonably) that if a check "clears" and the money is listed as "available," the bank has made sure the check is legitimate. This is a somewhat unintended consequence of laws to make paying by check work better, but it leads to a huge opening for these types of scams.

So if they need to do that, shouldn't it make sense for banks to at least put forth pretty clear warnings on money that has not really been validated yet? Or to at least proactively warn anyone seeking to withdraw money that hasn't really been validated that if the check fails to validate, they may be liable? It seems like there must be better ways to deal with this kind of scam than to just let the scammers keep taking advantage of this knowledge gap.

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    Gabriel Tane (profile), 28 Dec 2010 @ 10:24am

    Re: Re: Re: What?

    "So, you do not trust that your bank will not steal your money? You must keep you cash under your mattress then."
    No, I trust my bank to do everything in its power to get fees and charges out of me. If I had the ability to link my mattress to the internet and make payments that way, I would. In the meantime, I exchange the need for paranoid diligence for the convenience of electronic money.

    "Do I want my bank to hold every check I ever deposit for 11 business days or more? Absolutely not."
    Why would they have to hold it for 11 days if they would just electonically verify the check in the first place? I can deposit money into my bank via digital image of my check (without even mailing the original in!), so why canít they electronically request verification from that checkís issuer?

    "Every single time there is a lawsuit techdirt wants to change laws to prevent that lawsuit. Dumb."
    Don't read here too often, do you?
    First, Mike didn't say 'change the law'. He suggested banks give warning over what the "cleared check" really means and that spending that money may have risk. If my bank says "oh that money is there" and then later they really check into it, where is my fault for thinking it was OK?

    Second, if there is a law or procedure that is being taken advantage of by criminals, why would you not want to adjust it to make it harder to exploit? As long as it doesn't hamper legitimate business or infringe upon rights, what's the problem?

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Insider Shop - Show Your Support!

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.