My fiancé and I had a rent check returned due to a bank error (Wells
Fargo bounced the check by mistake).   Although the check bounced on
Aug 4, we were not notified by the apartment complex until Aug 15.  In
the meantime, $250 in late fees accrued.   We obtained a statement
from Wells Fargo stating that they were at fault and we should not be
held liable for the late fees, however, the apartment complex is still
insisting that we pay all late fees. Who is liable in this case? 
Wells Fargo insists that we are not liable, whereas the complex
insists that we are, despite the fact that we are not at fault.  We
are pushing for Wells Fargo to pay the late fees, but am not confident
that this resolution will work.

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Clarification of Question by r45853-ga on 16 Aug 2006 17:36 PDT

Please note: We are living in Austin, TX

Sorry to hear about the bad situation.  I hope this advice will help. 
I have some experience is such matters.

Have you tried having the bank send them a letter stating that it was
a bank error that caused this?  Many places will remove late fees when
this is done:
http://www-bfs.ucsd.edu/cashier/FAQS/index.html
"If your check is returned due to a bank error, we require a letter
from your bank explaining the error. Once the letter is received the
service charge and late fees, if applicable, will be cancelled and you
would be responsible only for redeeming the returned check."

But they are not required to.  They have every legal right to charge
you the late fees designated in the contract that you signed.  You
will be obligated to pay them.  You must then get the bank to pay you
back.

First try going through their corporate complaints department.  I was
unable to a direct number so call their personal banking number and
ask where to file a complaint.  1-800-869-3557
https://www.wellsfargo.com/help/phone_dir

If that takes you nowhere, you threaten to take them to court.  Even
have an attorney send them a nasty letter if you can.

Next you actually have to take them to small claims court.  Here is an
explanation of what that involves.
http://library.law.smu.edu/resguide/smclaims.htm

If your land lord is not willing to be reasonable, pay them. Not doing
this will only get you in trouble.  Pay them and deal with the bank.

I hope that you can get this straitened out.

Good Luck!

If you require any further information please let me know by posing a
request for clarification.

Thanks a lot for your help.  We have made some headway with Wells
Fargo.   Appreciate the thorough review and contact numbers.

There is a foundational legal issue, that being whether the $250 late
fee is reasonable and permissible under California law.  It strikes me
that it is not reasonable, and is an impermissible "penalty."  Contact
the local court that deals with landlord/tenant issues, visit them in
person, and ask the clerk what the judge usually does with late fees.

In my jurisdiction (Michigan)judges will only permit late fees in
amounts not to exceed $30 - under the theory that the late fee has to
bear some relationship to the landlords' actual costs (returned check
charges, etc) and cost of money - say 5% per annum for the few days
that the payment was late (example:  $2000 rent x 5% x 10 days/365
days = $2.74 )

Talk to the court.

Good luck,

weisstho-ga