This may be the only case I’ve seen on this subject.  Judge Davis addressed the timing of depositing post-dated checks under the FDCPA in Winter v. Messerli & Kramer, P.A. 2012 WL 186569 (D.Minn. 2012).  The facts were as follows.  MK asserts that on June 30, 2010, Plaintiff contacted MK and spoke with defendant Ashley and requested that he be allowed to postpone his June 2010 payment until July 6, 2010, and that he would make the July payment on July 31, 2010. Ashley agreed to the late payment and entered two post-dated payments into MK’s computer system.   Plaintiff denies authorizing the deposit of a post-dated check during this conversation. MK prepared a letter notifying Plaintiff that it intended to deposit the post-dated check on July 6, 2010, and for Plaintiff to ensure that sufficient funds were in his account. Plaintiff asserts that he did not receive this letter until July 11, 2010.  MK’s records reflect that notice of intent to deposit Plaintiff’s post-dated July 6, 2010 payment was sent to Plaintiff on July 1, 2010. On July 6, 2010, Plaintiff deposited $330 into his account. On that date, MK deposited the post-dated July 6, 2010 check from Plaintiff, which was withdrawn form Plaintiff’s back account on July 8, 2010. On July 29, 2010, MK refunded Plaintiff’s July 6, 2010 payment.



The FDCPA prohibits the acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit.  The Court found a triable issue of fact as to Plaintiff’s summary judgment motion. 


Here, MK deposited the check on Tuesday, July 6, 2010. Plaintiff argues that accepting as true that MK sent the notice on July 1, 2010, MK did not provide sufficient notice under the FDCPA as only two business days passed before MK deposited the check on July 6. Relying on the definition of “business day” in Black’s Law Dictionary (8th ed.), Saturdays, Sun-days and legal holidays are not to be considered a business day. In 2010, the Fourth of July fell on Sun-day, therefore Monday, July 5, was considered a holiday and should not be counted as a business day. Accordingly, only the previous Thursday and Friday can be counted as business days prior to MK deposit-ing the check.  Plaintiff further asserts that he did not receive the notice until on or about July 11, 2010—four days after the check was deposited. (Winter Aff. ¶ 4.) In support, he has submitted an envelope, that is post-marked July 10, 2010. (Winter Aff., Ex. 2.) Based on this evidence, Plaintiff argues that he is entitled to summary judgment on the issue of whether notice was timely sent. MK responds that the FDCPA does not define “business day.” While Plaintiff relies on the definition included in Black’s Law Dictionary to define business day as excluding weekends and holidays, MK asserts a more appropriate definition of business day is that included in the Truth in Lending Act. TILA defines business day as all calendar days except Sundays and legal public holidays as specified in 5 U.S.C. § 6103(a). 12 CFR § 226.2(a)(6). MK argues that TILA is more relevant to the FDCPA than is Black’s Law Dictionary. See, e.g., Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S.Ct. 1605, 1615–16 (2010) (holding that TILA and FDCPA are both part of the Consumer Credit Protection Act, and that Congress relied on TILA when drafting FDCPA).   If the Court were to adopt TILA’s definition of “business day”, then MK’s deposit of the post-dated check on July 6, 2010 did not violate § 1692f(2), since both Saturday, July 3 and Monday, July 5, would be included. MK asserts that July 5, 2010 should be counted, as it was not one of the holidays recognized by TILA. MK further asserts that July 6, 2010 should also be included in the calculation. Finally, MK asserts that it has provided evidence that it did send the notice on July 1, 2010. (Zwilling Aff., Ex. D (Fleming Dep. at 26; Ex. 2).)  Because the FDCPA does not define business day, and because the dispute involves the Fourth of July weekend, the Court finds that a reasonable jury could find for either party under the facts presented. Accordingly, even assuming Plaintiff authorized the deposit on June 30th, and that notice was sent on July 1, 2010, the Court finds that Plaintiff has not demonstrated that summary judgment is warranted in his favor on the issue of whether MK provided sufficient notice before depositing his post-dated check