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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Consumer Protection Law
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Experience:  Lawyer
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Good Morning.... I have an issue where a landlord was, under

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Good Morning....
I have an issue where a landlord was, under an agreement, holding a series of checks for me which would be cashed on specific days. I was, under the agreement to go into the office, date, and authorize the office to cash the checks. The landlord instead, inserted a date of his choosing and cashed one of the checks. This caused me to have an overdraft situation, and subsequently because of the overdraft the check was returned causing me to default on the agreement. I have found that under 20 UCC section 3-407 it is illegal for the landlord to fill in the date on the check. ( The landlord even sent me a letter after the fact stating that he was placing a date on the check and then cashing the check ) . Can you please in basic language educate me as to how this impacts my rights to have the agreement with the landlord reinstated. Thanks

My name is XXXXX XXXXX I'd be happy to answer your questions today.

If you and the landlord had an agreement that the landlord would cash the checks on certain days, and the landlord violated that agreement, you're not in default. You're only in default if he cashes the checks on the date that you chose and there's no money to pay the checks at that time. That means that the landlord is in breach of your agreement - he could be ordered to pay any damages that result from canceling the agreement, plus any overdraft fees he caused you to incur.

20 U.C.C. Section 3-407 just reiterates that a person who is given a check isn't allowed to change it. If you need more than the original agreement to show that the landlord did something he wasn't supposed to do, that rule can help. It's actually codified in the New Mexico Statutes at Section 55-3-407. That's what you would usually cite in a New Mexico case.

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