A check should be presented for payment within thirty (30) days after receipt. When a bank returns a check for insufficient funds, you should send the notice of dishonor or refusal of payment to the person who signed the check. [This form is available from the drop-down menu below.] This notice, when mailed by certified or registered mail, evidenced by return receipt, to the address provided on the check or given at the time of issuance, is sufficient and equivalent to notice having been received by the person who wrote and signed the check.
If the notice is properly given and the person who signed the check fails to pay the holder the amount of the check and service charge within ten (10) days, there is a presumption that the person who wrote the check intended to negotiate a worthless check. This presumption is important should it be necessary to proceed to trial of the case.
Filing a Complaint
After sending the notice of refusal as described above, any party holding a worthless check may present a "complaint" to the Worthless Check Unit of the District Attorney's Office. The District Attorney's Office will then evaluate the complaint based legal criteria and approve or disapprove processing the claim.
If the victim (i.e. the person who files the complaint) wishes to withdraw the complaint, the victim must satisfy the service charge of $30.00 to the Worthless Check Unit for processing said complaint.
Warrant and Notice
After approval of the complaint, a warrant may be issued by a magistrate and held by the Worthless Check Unit.
After issuance of a warrant or approval of a complaint by the Worthless Check Unit, the Unit will notify the individual who has cashed the check that a warrant has been issued for his/her arrest or that a complaint has been received by the Worthless Check Unit. Such notice will inform the accused that he/she may be eligible for deferred prosecution by voluntarily surrendering him/herself to the Worthless Check Unit within ten (10) business days of the date of the notice.
Upon voluntary surrender, the accused may be presented with the warrant and/or complaint and prosecution may be deferred upon payment to the Worthless Check Unit of the restitution and the service charge . The accused may be allowed to sign a restitution agreement that would contain the terms by which the restitution and the service charge would be paid.
If after receiving notice, the accused fails to voluntarily surrender him/herself to the Worthless Check Unit within the ten (10) business days set out in the notice, the crime will be prosecuted in accordance with applicable laws and procedures
Restitution shall include the face amount of any worthless check plus any amount the victim may have been required to pay a bank as a result of having attempted to process the worthless check.
Upon filing a complaint with the Worthless Check Unit, the victim waives the right to collect restitution directly from the defendant.
If the accused enters into a restitution agreement and fails to honor its terms, the District Attorney's Office may proceed with the prosecution of the accused.
After restitution is collected, the money collected is paid to the County Treasurer and deposited into a Worthless Check fund. It is then disbursed to the victim after a reasonable time for accounting and bookkeeping procedures.
A service charge will be collected on each check to defray the expenses of collection
There will always be some individuals who will not surrender and will not make restitution. For the past several years our office has kept detailed records of chronic "paper hangers." It will be the policy of our office to closely monitor the progress of prosecutions for this offense. Naturally, the judge and/or jury are the final arbiters of guilt and punishment. Our office will firmly and vigorously prosecute chronic offenders and advocate incarceration for those who persist in perpetrating this violation of the law. It is our considered view that jail is the most effective deterrent for those who refuse to abide by the law.
Establishing identity is important. No one wants to falsely accuse an innocent person of wrong doing. If a warrant is sworn out for the wrong person and such person is arrested, the one who causes the warrant to be issued might be liable for false arrest. Several large verdicts have been returned against merchants in this State under such circumstances.
Evidence of Identity—One of the most important concerns a clerk who cashs a check can have is whether the person whose name is signed to the check is in fact the person who cashed the check. Always require identification, usually a driver's license. Look at the picture to make sure the person cashing the check is the person whose picture is on the driver's license. Be prepared to testify to such fact. If a driver's license number is printed on the check, compare it with the number on the license presented.
Presumption of Identity—There is a presumption as to the identity of the party issuing a check and that such person was a party authorized to draw upon the named account if the party receiving the check requests and receives the name, residence address and home phone number of the person presenting the check. Such information may be recorded on the check itself or the number of a check-cashing identification card issued by the receiving party may be recorded on the check. Such check-cashing identification card should be issued only after such information has been placed on file by the receiving party.
For the presumption of identity to be effective, the party receiving a check must witness the signature or endorsement of the party presenting the check and the receiving party must initial the check. A clerk should never take a check that the clerk does not see signed in the presence of the clerk.
Often a clerk will take a check to a manager or supervisor for approval. If the manager initials the check but does not see the person presenting the check physically sign the check, then the presumption of identity is not effective. The person who physically receives the check and personally observes the presenter sign the check should initial the check.
If the check has the proper identification on its face and is initialed properly, there is a presumption of identity that the person named on the check is the person who presented the check.
It should be a general policy not to accept two-party checks on individuals. Two-party checks are not really covered by the presumptions. As a practical matter, it is very difficult to make out a case on a two-party check absent proof of actual intent. For this reason, it should be a general policy not to accept two-party checks on individuals. Another type of two-party check, the payroll check, presents the most difficult problem of all. Often payroll checks on a corporation are signed on behalf of the corporation by an employee who has no management position. Each case of this sort must be considered on its own merits. Many merchants feel that it is a business necessity to cash payroll checks. There is not simple answer to the dilemma presented by this problem.
For a check to fall within the worthless check laws, it is necessary that at the time it was presented it was intended to be a negotiable instrument. If you accept a check with the understanding that it is a security instrument to cover an open account, it is not a negotiable instrument and will not support a prosecution.
If you have any other questions about worthless checks, please call our Worthless Check Coordinator in your county. She can be reached at the phone number listed below.
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