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I simply do not understand why in a check scam it is the individual who deposits the check in a bank who is the one responsible, rather than the bank that accepted the check.

Isn't a bank in better conditions to verify whether a check is legal or not?

Wouldn't making the bank responsible help alleviate this scam scourge?

10

Because you brought a bad check in the bank. Otherwise, anybody could print fake checks at home, deposit them, and blame the bank for the loss.

Note that the bank never 'accepted' the check as good - they take it and basically say 'we'll see if it is good in some days'.
The US checking system inherently does not allow to verify a check on the spot, as every bank (and every business that cares) can print their own - valid - checks with large liberties in the layout and form. The bank will only know if a check is good when the money arrives from the originating bank - which takes some days.

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    Last sentence is wrong (too weak) -- that only proves that the money exists, not that the individual has any right to it. Today I read a checking account agreement that contains the verbiage "Under the Uniform Commercial Code (as enacted in the applicable jurisdiction), your legal right to the credited funds is only apparent after several days and is only absolutely certain after a period of YEARS." – Ben Voigt Mar 31 '19 at 3:06
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You are not really "responsible".

You brought a fake check to the bank. A fake check is a piece of paper that looks like a valuable check, but is worth nothing.

So you gave the bank a piece of paper that is worth nothing. That worthless piece of paper convinced the bank to put money into your account temporarily, but weeks later when the bank figures it out, they take the money away.

You haven't been harmed by the bank in any way. You gave them a worthless piece of paper, and they put money into your account, but only temporarily. No harm done.

You are not in a worse position than if the bank had immediately detected that the check is worthless. And it would seem strange if you want to the bank with a fake check, they found it was fake, and you wanted the bank to be responsible.

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    Actually no. By depositing the check you are providing a warranty to the bank that the you are authorized to cash it and it is not fraudulent. You are liable for any damages the bank incurs, including interest on any money you received. This is why you pay a returned items fee. See UCC 3-417, or this text. – user71659 Mar 31 '19 at 0:20
  • @user71659: Not exactly. There's an additional weirdness in that the bank holds the accountholder responsible, not the person presenting the item for deposit. In most cases they don't even determine the identity of the person presenting the item. – Ben Voigt Mar 31 '19 at 3:09
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When you deposit a check, the bank has two options. They can credit your account pending verification that the check is good. Or they can hold the check and wait until they are certain it is good before crediting your account.

In 99.9% of the cases, checks clear but it can take many days before a bad check is discovered. If banks didn't credit that money to your account immediately, there would be thousands and thousands of people that would either be bouncing checks or incurring overdrafts. For someone living paycheck to paycheck and getting checks from employers or a business getting checks from clients, having to wait multiple days before a deposit shows gets credited would often mean that they didn't have enough in the bank when the mortgage or rent payment was due. There would be a massive outcry if the banks were profiting on overdraft fees when banks were holding checks that customers had deposited.

In the tiny fraction of cases where checks turn out to be fraudulent, it would be lovely if the bank waited to credit the depositing account until the check cleared. Unfortunately, the bank doesn't know when you're depositing a dodgy check from some scammer or a check from your employer. In that tiny fraction of instances where the check was fraudulent, it would be useful if banks made it clearer when a particular check really cleared vs. when the bank merely credited it to your account as a courtesy. Of course, that would tend to make the online interface busier and would probably lead to people having more questions (i.e. calling up customer support asking what it means that their paycheck hadn't cleared yet) which makes it tough for banks to implement.

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In the United States, checks are a consumer payment system subject to US law. The bank is one of the middlemen in the payment. All such payments are, again by law, reversible if everyone authorized to initiate the payment from the sending account denies that they authorized the payment.

When you receive a consumer payment, it is your obligation to return the payment if the payment was unauthorized. You should not accept a consumer payment unless you know that the payment was made by someone authorized to make it and you are legally entitled to receive the funds. You should know that if the payment is denied, the middlemen will disintermediate themselves from the payment.

That means you will need to sue the person who owed you the money.

Now, taking your questions:

Isn't a bank in better conditions to verify whether a check is legal or not?

How would that work? You would have to explain to the bank the legal basis for why you were entitled to the payment and they would investigate if it was correct? Would you have to provide a statement that you provided services?

You, presumably, know who sent you the check. You must have some way to contact them. Your bank has no such contact.

Wouldn't making the bank responsible help alleviate this scam scourge?

No. I'm not sure what the scenario you're envisioning is, but I can't think of any that eliminates the scams. Are you suggesting the bank just pay out on any such scam? Then it would become a way to scam the banks.

Are you suggesting that banks would have to investigate the legal entitlement of the recipient for every check they accept? How would electronic checking work in that case?

Are you suggesting that payments not be reversible when the sender denies they authorized the payment? Then it would become a way to launder money stolen from hacked computers with the liability being placed on the person whose computer was hacked and no incentive for the beneficiaries of the scam to stop scamming. (The "victim" would be rewarded in this case because they get to keep part of the stolen money!)

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Why isn't it the bank who is responsible?

Because sometimes it is the person depositing the cheque who is committing the fraud.

Sometimes the person who deposits the cheque knows it is a fake and is looking to take out the money and spend it, and then say "Oh, I didn't know it was a fake." It doesn't happen much today (because they are still liable and can only get away with it by skipping town) but if the law said they were not responsible then you can bet many more people would be doing it.

  1. 'Friend' writes fake cheque.
  2. Deposit cheque.
  3. Write cheque to 'friend' (different or same friend) who cashes it
  4. 'Friend' conveniently 'vanishes'.
  5. Tell bank they are responsible for missing money
  6. Split money with friend (if he exists).
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A check is essentially a contract - the person giving you the check is signing their name and promising that the check is good for a certain amount of money. By accepting the check, you are accepting their contract.

But that contract is not what the bank is accepting - what they are accepting is your endorsement of the check. By signing the back of the check and handing it to them for deposit, you are telling the bank 'this check is good for this amount of money, please add it to my account'.

If the check later turns out not to be good, then you are in breach of your check endorsement, and the bank is within their rights to retract that money from your account - but the original agreement of the signer is an agreement between you and them, not an agreement between them and the bank.


That being said, there aren't no repercussions for repeatedly writing and giving out bad checks. In a normal business exchange, you would go and seek compensation against the person who gave you a bad check, and for a normal business their reputation would be tarnished for regularly handing people bad checks.

The reason a scammer can get away with it is because they aren't concerned about tarnishing their reputation, and they have no intention of compensating you for a bad check - the only recourse you then have is to report them to the police for fraud.

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The more cynical answer: because the US banking system makes more money this way.

Checks are an inefficient and antiquated system of moving money around but it generate fees and temporary deposits for the banks. US banks have been dragging their feet in supporting simple and efficient electronic transfer systems like the one that's commonplace in Europe and many other parts of the world (https://www.dnb.no/en/business/transaction-banking/international-payments/example-iban.html )

Electronic transfers are quick, safe, efficient, traceable & cheap. The money is transferred directly from one account to another and is never in an "intermediate" limbo state as is the case for a check. But it's less profitable to the banks and they will happily push the "responsibility" for a bad check on to you, just because they can.

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    It's actually the complete opposite of what you claim. Funds availability comes from laws that require banks give you an interest-free loan while the check clears. Banks, in fact, don't like checks because of this and the handling required. As shown in another answer, electronic payment methods dominate. The majority of checks today are B2B where companies haven't updated. Even the Federal Government is not even allowed to write checks unless a specific exemption applies. – user71659 Mar 31 '19 at 17:44
  • Besides, what happens when somebody's online account gets hacked and their money is transferred out? Are you going to reclaim it from the person it got sent to (victim of a scam), like in the checking system? Is the bank going to eat the loss? In the latter case, this means that every transaction needs to have insurance added to the cost, one of the reasons why debit card transactions cost ~0.5%. Your system isn't as cheap anymore. – user71659 Mar 31 '19 at 18:00

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