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[Table of Contents] [Previous Page] [Next Page] [Search] Inclusion of Preissued, Postdated Cashier's Checks in FDIC Deposit Assessment FDIC-87-58 December 4, 1987 Richard T.

Miller, Attorney This memorandum responds to a deposit assessment protest submitted by *** of the ***.

In the FDIC deposit assessment audit of December 1986, the FDIC took exception to the pension pay service fund, account no. Furthermore, the FDIC included *** preissued, postdated cashier's checks in the assessment base.

In light of *** protest of this assessment, you asked whether or not preissued, postdated cashier's checks are assessable where they are posted to the bank's general ledger on the release date. THE FDIC's POSITION The FDIC's argument essentially is that these preissued, postdated cashier's checks are deposits, and they consequently are assessable. In addition, the payees of *** postdated cashier's checks are on notice that the instruments are not negotiable until the due date. Furthermore, and unlike a preissued, postdated cashier's check, a money order is an effective obligation without restriction on the payment date.

While it may be a crime for a tenant to write a check when there are insufficient funds in his account to cover the check, California's worthless check laws may not cover a landlord if a postdated check was accepted.

According to California's bad check law, writing a check with the intent to commit fraud or knowingly writing a check when there are insufficient funds to cover the full amount of the check are both illegal.

Accepting a check that is postdated may provide the tenant with a legal defense that negates criminal intent even if the check doesn't clear.Your *** memorandum states that the *** considers official checks released by a bank for delivery to be issued and outstanding. On the reverse of each draft, *** printed the following statement: "This check must be personally endorsed by the payee in ink in the payee's handwriting." (Emphasis supplied.) Therefore, whereas an "outstanding draft" constitutes an effective but unpaid obligation, a preissued, postdated cashier's check is not an effective obligation until the due date, and *** cashier's checks consequently are not outstanding drafts for purposes of what is a "deposit". Therefore, a preissued, postdated cashier's check is not a "money order".Furthermore, your memorandum states that issued official checks meet the definition of "deposit". Therefore, you state that the *** exception was taken because deposits posted to the institution's general ledger are assessable. *** POSITION *** takes the position that its preissued, postdated cashier's checks are not assessable deposits. § 3-510, Official Comment 2 ("the following reasons for refusal are not evidence of dishonor, but of justifiable refusal to pay or accept: . Finally, a preissued, postdated cashier's check is not a "money order". In summary, the only definition of "deposit" relevant to *** preissued, postdated cashier's checks is found at subsection 3 ()(4).If *** failed before the payment date of these preissued, postdated cashier's checks, the rights of the payees would be frozen as of the failure date. Finally, not even *** practice of prematurely honoring these drafts would enable the payees to prematurely collect from the FDIC.Even if a "course of dealing" relationship were deemed to accelerate payment, such an "agreement" would be unenforceable against the FDIC because there is no written agreement that *** will prematurely pay on these drafts.

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*** has no significance for assessment purposes because a cash management relationship exists between this account and the current outstanding checks, account no. First, do preissued, postdated cashier's checks meet the definition of "deposit"? SUMMARY CONCLUSIONS *** preissued, postdated cashier's checks do not meet the definition of "deposit" until their due date. Preissued, postdated cashier's checks do not meet the definition of "deposit" until their due date. In addition, a preissued, postdated cashier's check is not an "outstanding draft" for purposes of what is a "deposit". Finally, since preissued, postdated cashier's checks are not deposits until their due date, *** pension pay service fund, account no ***, is not a deposit account.

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