Notice of Dishonored Check - Criminal - Keywords: bad check, bounced check
Note: This summary is not intended to be an all
inclusive summary of the law of bad checks, but does contain basic and
other provisions.
CIVIL PROVISIONS
Georgia Code
TITLE 13 - CONTRACTS
CHAPTER 6 - DAMAGES AND COSTS GENERALLY
13-6-15. Damages for writing bad checks.
(a) Notwithstanding any criminal sanctions which may apply,
any person who makes, utters, draws, or delivers any check, draft, or order
upon any bank, depository, person, firm, or corporation for the payment
of money, which drawee refuses to honor the instrument for lack of funds
or credit in the account from which to pay the instrument or because the
maker has no account with the drawee, and who fails to pay the same amount
in cash to the payee named in the instrument within ten days after a written
demand therefor, as provided in subsection (c) of this Code section, has
been delivered to the maker by certified mail or statutory overnight delivery
shall be liable to the payee, in addition to the amount owing upon such
check, draft, or order, for damages of double the amount so owing, but
in no case more than $500.00, and any court costs incurred by the payee
in taking the action.
(b) The payee may charge the maker of the check, draft, or
order a service charge not to exceed $25.00 or 5 percent of the face amount
of the instrument, whichever is greater, plus the amount of any fees charged
to the holder of the instrument by a bank or financial institution as a
result of the instrument not being honored, when making written demand
for payment.
(c) Before any recovery under subsection (a) of this Code
section may be claimed, a written demand in substantially the form which
follows shall be sent by certified mail or statutory overnight delivery
to the maker of the instrument at the address shown on the instrument:
... [ see, USLF form
GA-401N ] ...
(d) For purposes of this Code section, the holder of the
dishonored check, draft, or order shall file the action in the county where
the defendant resides.
(e) It shall be an affirmative defense, in addition to other
defenses, to an action under this Code section if it is found that:
(1) Full satisfaction of the amount of the check or instrument
plus the applicable service charge and any fees charged to the holder of
the instrument by a bank or financial institution as a result of the instrument
not being honored was made prior to the commencement of the action;
(2) The bank or depository erred in dishonoring the check
or instrument; or
(3) The acceptor of the check or instrument knew at the time
of acceptance that there were insufficient funds on deposit in the bank
or depository with which to cause the check or instrument to be honored.
(f) In an action under this Code section, the court or jury
may, however, waive all or part of the double damages upon finding that
the defendant's failure to satisfy the dishonored check or instrument was
due to the defendant receiving a dishonored check or instrument written
to the defendant by another party.
(g) Subsequent to the commencement of the civil action under
this Code section, but prior to the hearing, the defendant may tender to
the plaintiff as satisfaction of the claim an amount of money equal to
the sum of the amount of the dishonored check, service charges on the check,
any fees charged to the holder of the instrument by a bank or financial
institution as a result of the instrument not being honored, and any court
costs incurred by the plaintiff in taking the action.
(h) In an action under this Code section, if the court or
jury determines that the failure of the defendant to satisfy the dishonored
check was due to economic hardship, the court or jury has the discretion
to waive all or part of the double damages. However, if the court or jury
waives all or part of the double damages, the court or jury shall render
judgment against the defendant in the amount of the dishonored check plus
service charges on the check plus any fees charged to the holder
of the instrument by a bank or financial institution as a result of the
instrument not being honored and any court costs incurred by the plaintiff
in taking the action.
CRIMINAL PROVISIONS
Georgia Code
TITLE 16 CRIMES AND OFFENSES
CHAPTER 9 FORGERY AND FRAUDULENT PRACTICES
(ARTICLE 2 DEPOSIT ACCOUNT FRAUD)
16-9-20.
(a) A person commits the offense of deposit account fraud
when such person makes, draws, utters, executes, or delivers an instrument
for the payment of money on any bank or other depository in exchange for
a present consideration or wages, knowing that it will not be honored
by the drawee. For the purposes of this Code section, it is prima-facie
evidence that the accused knew that the instrument would not be honored
if:
(1) The accused had no account with the drawee
at the time the instrument was made, drawn, uttered, or delivered;
(2) Payment was refused by the drawee for lack
of funds upon presentation within 30 days after delivery and the accused
or someone for him or her shall not have tendered the holder thereof the
amount due thereon, together with a service charge, wiithin ten days
after receiving written notice that payment was refused upon such instrument.
For purposes of this paragraph:
(A) Notice mailed by certified
or registered mail or statutory overnight delivery evidenced by return
receipt to the person at the address printed on the instrument or given
at the time of issuance shall be deemed sufficient and equivalent to notice
having been received as of the date on the return receipt by the person
making, drawing, uttering, executing, or delivering the instrument. A single notice as provided in subparagraph (B) of this paragraph shall
be sufficient to cover all instruments on which payment was refused and
which were delivered within a ten-day period by the accused to a single
entity, provided that the form of notice lists and identifies each instrument;
and
(B) The form of notice shall be substantially
as follows:
... [ see, USLF form GA-402N ] ...
(3) Notice mailed by certified or registered
mail or statutory overnight delivery is returned undelivered to the sender
when such notice was mailed within 90 days of dishonor to the person
at the address printed on the instrument or given by the accused at the
time of issuance of the instrument.
(b)(1) Except as provided in paragraphs (2) and
(3) of this subsection and subsection (c) of this Code section, a person
convicted of the offense of deposit account fraud shall be guilty of a
misdemeanor and, upon conviction thereof, shall be punished as follows:
(A) When the instrument is for less
than $100.00, a fine of not more than $500.00 or imprisonment not to exceed
12 months, or both;
(B) When the instrument is for $100.00
or more but less than $300.00, a fine of not more than $1,000.00 or imprisonment
not to exceed 12 months, or both; or
(C) When more than one instrument
is involved and such instruments were drawn within 90 days of one
another and each is in an amount less than $100.00, the amounts of such
separate instruments may be added together to arrive at and
be punishable under subparagraph (B) of this paragraph.
(2) Except as provided in paragraph (3) of this
subsection and subsection (c) of this Code section, a person convicted
of the offense of deposit account fraud, when the instrument is for an
amount of not less than $300.00 nor more than $499.99, shall be guilty
of a misdemeanor of a high and aggravated nature. When more than one instrument
is involved and such instruments were given to the same entity within a
15 day period and the cumulative total of such instruments is not less
than $300.00 nor more than $499.99, the person drawing and giving such
instruments shall upon conviction be guilty of a misdemeanor of a high
and aggravated nature.
(3) Except as provided in subsection (c) of this
Code section, a person convicted of the offense of deposit account fraud,
when the instrument is for $500.00 or more, shall be guilty of a felony
and, upon conviction thereof, shall be punished by a fine of not less than
$500.00 nor more than $5,000.00 or by imprisonment for not more than three
years, or both.
(4) Upon conviction of a first or any subsequent
offense under this subsection or subsection (c) of this Code section, in
addition to any other punishment provided by this Code section, the defendant
shall be required to make restitution of the amount of the instrument,
together with all costs of bringing a complaint under this Code section.
The court may require the defendant to pay as interest a monthly payment
equal to 1 percent of the amount of the instrument. Such amount shall
be paid each month in addition to any payments on the principal until the
entire balance, including the principal and any unpaid interest payments,
is paid in full. Such amount shall be paid without regard to any
reduction in the principal balance owed. Costs shall be determined
by the court from competent evidence of costs provided by the party causing
the criminal warrant or citation to issue; provided, however, that the
minimum costs shall not be less than $25.00. Restitution may be made
while the defendant is serving a probated or suspended sentence.
(c) A person who commits the offense of deposit account fraud
by the making, drawing, uttering, executing, or delivering of an instrument
on a bank of another state shall be guilty of a felony and, upon conviction
thereof, shall be punished by imprisonment for not less than one
nor more than five years or by a fine in an amount of up to $1,000.00,
or both.
(d) The prosecuting authority of the court with jurisdiction
over a violation of subsection (c) of this Code section may seek extradition
for criminal prosecution of any person not within this state who flees
the state to avoid prosecution under this Code section.
(e) In any prosecution or action under this Code section,
an instrument for which the information required in this subsection is
available at the time of issuance shall constitute prima-facie evidence
of the identity of the party issuing or executing the instrument and that
the person was a party authorized to draw upon the named account.
To establish this prima-facie evidence, the following information regarding
the identity of the party presenting the instrument shall be obtained
by the party receiving such instrument: the full name, residence address,
and home phone number.
(1) Such information may be provided by either of two
methods:
(A) The information may be recorded
upon the instrument itself; or
(B) The number of a check-cashing
identification card issued by the receiving party may be recorded on the
instrument. The check-cashing identification card shall be
issued only after the information required in this subsection has been
placed on file by the receiving party.
(2) In addition to the information required in
this subsection, the party receiving an instrument shall witness the signature
or endorsement of the party presenting such instrument and as evidence
of such the receiving party shall initial the instrument.
(f) As used in this Code section, the term:
(1) "Bank" shall include a financial institution
as defined in this Code section.
(2) "Conviction" shall include the entering of
a guilty plea, the entering of a plea of nolo contendere, or the forfeiting
of bail.
(3) "Financial institution" shall have the same
meaning as defined in paragraph (21) of Code Section 7-1-4 and shall also
include a national bank, a state or federal savings bank, a state or federal
credit union, and a state or federal savings and loan association.
(4) "Instrument" means a check, draft,
debit card sales draft, or order for the payment of money.
(5) "Present consideration" shall include without
limitation:
(A) An obligation or debt of rent
which is past due or presently due;
(B) An obligation or debt of state
taxes which is past due or presently due;
(C) An obligation or debt which is
past due or presently due for child support when made for the support of
such minor child and which is given pursuant to an order of court
or written agreement signed by the person making the payment;
(D) A simultaneous agreement for
the extension of additional credit where additional credit is being denied;
and
(E) A written waiver of mechanic's
or materialmen's lien rights.
(6) "State taxes" shall include payments made
to the Georgia Department of Labor as required by Chapter 8 of Title 34.
(7) "Holder in due course" shall have the same
meaning as in Code Section 11-3-302.
(g) This Code section shall in no way affect the authority
of a sentencing judge to provide for a sentence to be served on weekends
or during the nonworking hours of the defendant as provided in Code Section
17-10-3.
(h)(1) Any party holding a worthless instrument and giving
notice in substantially similar form to that provided in subparagraph
(a)(2)(B) of this Code section shall be immune from civil liability for
the giving of such notice and for proceeding as required under the
forms of such notice; provided, however, that, if any person shall
be arrested or prosecuted for violation of this Code section and payment
of any instrument shall have been refused because the maker or drawer had
no account with the bank or other depository on which such instrument was
drawn, the one causing the arrest or prosecution shall be deemed to have
acted with reasonable or probable cause even though he, she, or it has
not mailed the written notice or waited for the ten-day period to
elapse. In any civil action for damages which may be brought by the
person who made, drew, uttered, executed, or delivered such instrument,
no evidence of statements or representations as to the status of the instrument
involved or of any collateral agreement with reference
to the instrument shall be admissible unless such statements, representations,
or collateral agreement shall be written simultaneously with or upon the
instrument at the time it is delivered by the maker thereof.
(2) Except as otherwise provided by law, any
party who holds a worthless instrument, who complies with the requirements
of subsection (a) of this Code section, and who causes a criminal warrant
or citation to be issued shall not forfeit his or her right to continue
or pursue civil remedies authorized by law for the collection of the worthless
instrument; provided, however, that if interest is awarded and collected
on any amount ordered by the court as restitution in the criminal case,
interest shall not be collectable in any civil action on the same amount.
It shall be deemed conclusive evidence that any action is brought upon
probable cause and without malice where such party holding a worthless
instrument has complied with the provisions of subsection (a) of this Code
section regardless of whether the criminal charges are dismissed by a court
due to payment in full of the face value of the instrument and applicable
service charges subsequent to the date that affidavit for the warrant or
citation is made. In any civil action for damages which may
be brought by the person who made, drew, uttered, executed, or delivered
such instrument, no evidence of statements or representations as to the
status of the instrument involved or of any collateral agreement with reference
to the instrument shall be admissible unless such statements, representations,
or collateral agreement shall be written simultaneously with or upon the
instrument at the time it is delivered by the maker thereof.
(i) Notwithstanding paragraph (2) of subsection (a) of this
Code section or any other law on usury, charges, or fees on loans
or credit extensions, any lender of money or extender of other credit who
receives an instrument drawn on a bank or other depository institution
given by any person in full or partial repayment of a loan, installment
payment, or other extension of credit may, if such instrument is not paid
or is dishonored by such institution, charge and collect from the borrower
or person to whom the credit was extended a bad instrument charge.
This charge shall not be deemed interest or a finance or other charge made
as an incident to or as a condition to the granting of the loan or other
extension of credit and shall not be included in determining the limit
on charges which may be made in connection with the loan or extension of
credit or any other law of this state.
(j) For purposes of this Code section, no service charge
or bad instrument charge shall exceed $25.00 or 5 percent of the face amount
of the instrument, whichever is greater, except that the holder of the
instrument may also charge the maker an additional fee in an amount equal
to that charged to the holder by the bank or financial institution as a
result of the instrument not being honored.
(k) An action under this Code section may be prosecuted by
the party initially receiving a worthless instrument or by any subsequent
holder in due course of any such worthless instrument.
