I have received a bad check. What can I do?
The issuance of a check on an account that is closed or has insufficient funds may constitute a crime for which the maker of the check may be prosecuted. The issuance of a check that is not honored may also give rise to a civil claim for damages. Your option to proceed will depend on the circumstances in your case.
Can I pursue criminal prosecution of a bad check?
Whether the issuance of a bad check is a crime will depend on several factors. You should review these factors carefully against the particular facts in your case before applying for a warrant or a citation. The elements of the criminal offense of Deposit Account Fraud (bad check) are contained in O.C.G.A. 16-9-20.
What are the elements of the offense of deposit account fraud?
a. Dishonor of the check - the check must be dishonored by the drawee (who the check is made out to) for one of the reasons set forth in the statute.
b. Knowledge by the maker of the check that it would not be honored.
c. Present consideration - the check must have been given for present consideration.
Where should the offense of deposit account fraud be prosecuted?
The proper venue for the prosecution of the offense of deposit account fraud is the county in which the check was presented. This is true regardless of where your home office may be located or where the person who tendered the check resides.
What reasons for dishonor of the check will support a criminal prosecution?
The check must be dishonored by the drawee for one of two reasons: 1. No account or account closed. This is based on the status of the account at the time the check was made, drawn, uttered, or delivered, not at the time it was presented to the bank for payment. 2. Lack of funds - the check must have been deposited or presented for payment within 30 days of the date delivered, and the accused has failed to make payment of the check and a service charge within 10 days after receiving written notice that the check has been dishonored. A copy of the notice that will satisfy this requirement may be found in the forms section of this website. There are many other reasons why a check may not be paid upon presentation. However, only the reasons set forth in the statute will support a criminal prosecution. If the check has been dishonored for another reason you should review the availability of civil remedies for bad checks.
What is meant by present consideration?
The check must have been tendered for either wages or present consideration. The offense of deposit account fraud is analogous to a theft of the item or services received through the fraudulent presentation of worthless paper when immediate payment is expected. Anything that temporarily separates the exchange will negate the concept of present consideration.
Present consideration includes:
a. Goods or services tendered for check.
b. Rent that is presently or past due.
c. Child support, pursuant to court order or written agreement.
d. State taxes, whether or not past due.
e. Simultaneous agreement for the extension of additional credit where additional credit is being denied.
Present consideration does not include:
a. Post-dated check.
b. Payment on an installment account or on an open account for goods/services previously received.
c. Request by the defendant to the victim to hold the check.
What steps should be taken to ensure a bad check can be collected?
Be sure employees have followed all items on this checklist:
- Keep a permanent record of home address of the clerk who actually received the check. This person will be a critical witness who must identify the person who made the check if the case goes to trial.
- Deposit all checks within 30 days of receipt.
- Within 90 days of receipt of check, mail certified demand letter to the address given by the maker of the check. Give the maker of the check at least 10 days and 3 days for mailing before prosecuting criminally. Try to telephone the accused and keep a record of your efforts.
- Make sure the check is actually one for present consideration.
- Unusual situations such as: post-dating, stop payment, agreement to hold check, forgery, often prevents the collection from proceeding under criminal prosecution. You may wish to seek legal counsel for further information.
- If management has received partial payment, proceed to civil remedy only.
- Make photocopies of check (front and back), the 10 day demand letter, the certified mail notice, and/or the envelope mailed to the maker of the check if returned unclaimed.
- Proceed criminally for all checks that meet checklist in the county where the check was passed.
- Proceed civilly (in Magistrate Court if the amount is $15,000.00 or less) against all other checks in the county where the defendant lives.
- Refer all persons to the Magistrate Court who want to payoff bad check charges after criminal prosecution begins.
- Be prepared to pay a filing fee.Please see the list of filing fees for the fee for this service.
What information should I bring to court to start prosecution?
Bring with you the original check and a copy of the check (front and back), a copy of the ten day letter, the certified mail receipt or returned letter if unclaimed, and the filing fee.
Are there forms that I must fill out?
Depending on the particular check, you will be asked to fill out an application for either an arrest warrant or a citation. These forms are available on this website under forms and in the Magistrate Court Clerk's office.
What is a bad check citation and in what situation is it issued?
When a citation is issued, the accused maker of the check will be notified that prosecution has commenced. The accused can dispose of the case by paying the check, service charge, warrant application fee and a fine. The accused can also plead not guilty and request a trial of the case. If the accused does not dispose of the case or appear in court by the date specified on the citation, an arrest warrant may be issued. Only misdemeanor cases may be prosecuted by citation.
What is a bad check arrest warrant and in what situation is it issued?
A bad check arrest warrant is an order of the court directing any duly authorized law enforcement official to arrest the person named in the warrant for the offense. The accused will be arrested and, in most instances, allowed to post bond to secure their appearance at trial. All felony bad checks are prosecuted by warrant. A felony bad check warrant is when a check is in the amount in excess of $500.00, or where the check is drawn on an out of state bank, regardless of the amount of the check. Also, warrants are issued in the following situations: the accused has failed to respond to a citation or the accused could not be located so that a citation could be served.
Where are deposit account fraud cases tried?
Cases prosecuted by citation are tried in the Magistrate Court, unless the accused demands a jury trial. In that event, the case is transferred to the State Court for trial. Cases prosecuted by warrant are tried in the State Court if the offense is a misdemeanor or in the Superior Court if the offense is a felony.