Bounced Checks, CA and OC

You may have created the note but, you used someone else's goods and services and didn't pay. That bounced check then becomes their property and they may assign it as they see fit. Prehaps contact the orginal creditor and ask if they'll take the account back from the CA.

 

My question would be is why didn't you make good on the check to "Roto Rooter"? They performed a service for you and you need not agree to payment for that service. Actually, you committed a felony depending on the amount of the check.

Dani

 

Remember, they can also pursue you felony theft and hot check charges. Not worth a felony for 1 check. Shoot, write a bunch in that case!

Make payment arangements and be done with it.

 

You wrote a bad check. That is a felony. Writing a bad check in the eyes of judical law bascially states that you were aware of what you were doing...you ordered a service, the service was completed, and you wrote a check knowing full well it would not clear.

Now I understand we all make boo-boos, sometimes we misadd (or forget to subtract), or maybe our paycheck didn't go in in time, but most people will contact the company, apologize and make good on the check.

What happens if you were a businessman and someone wrote you a bad check? This is completely different than someone not paying you. A bad check does not have to do with unexpected tragedies, you either have the money or you don't.

In my business, I have two people who wrote our company bad checks and I went after both of them. The first thing I did was contact them via phone and ask for a new check to be issued - both refused. I then prosecuted them. One paid the day before court and I dropped the case. The other now has a lien on his house.

Believe me, it is alot easier to win in court over a bad check (if you're are the prosecutor) then against someone who just decided not to pay his or her account.

Dani

 

Atta girl Dani! I got no use for bad check artist either. I've seen way too many small business owners hurt when they get hit with a rash of bad paper. I truely don't understand why this stuff gets turned over to CA's. If it were me, I'd do exactly what you described. I'd have been paid or had a judgment against someone real fast.

 

Lisa,

I offered you advice. You wanted to know why it was a felony and why it would hold up in court. I do not deserve your reponse to my reply. If you didn't want advice you should have gone to another board. I will no longer answer your questions or read your cheap insults.

Dani

 

We are all here to help each other out, I don't see where it would have been any different if she had asked about a 20.00 past due cable bill or A 20.00 doctor bill. the 20.00 is a bad check, and all of a sudden people are preaching their virtues. While bad checks are legally different than other debts, they are all just that, debts. I usually don't like to get in on these debates but come on, she should be intitled to the same treatment as everyone else.

coral

 

Ljones4521

Per Comerica Bank:

A contract is a declaration and agreement for opening and maintaining deposit accounts(s) or other resolution/authorization we accept from you.

Your account is subject to federal laws, and rules regulations of the Federal Reserve Board, the federal reserve banks, the National Automated Clearing House Association (NACHA) and to the applicable laws of the sate where the Bankâ??s principal place of business is located, including the uniform Commercial Code (UCC). Changes in applicable law, rules and regulations may require the modification of this contract.

So in the eyes of Comerica Bank when I open a checking account I form a contract with the bank. Which means if I have a NSF check and I donâ??t pay them, they can send it to a CA if they so chose to.

1. What state are you in? Check www.lawdog.com to see what if any laws you broke. They will also list the max and min that could be charged against you.

2. What is amount of your check?
Is the amount worth all this fighting?

3. Was the check declined due to NSF or Stop Payment?

4. Did 'Roto Rooter' perform a service?
If so, was there any reason why you wouldnâ??t pay them?
I.e. Bad service.
Incomplete service
They cause damage to your home

4. If â??Roto Rooterâ?? did not perform their service to your satisfaction did do anything to resolve the issue before non-payment?
Contact BBB or even your State AG?

Lisa, you do you know that your bank may have already reported you to ChexSystems? Which now means you not only need to fight the CA you may need to fight ChexSystems. In case you did not know ChexSystems is the reporting agency that banks use to report NSF or overdrawn accounts. www.chexhelp.com will give you more information. There is also SCAN and Telecheck. So there is more to this then some CA. This can stop you from getting a checking in the future. You stated you have your own business so you know that it means to have good credit to keep your business going.

Now my time to preachâ?¦

Lisa you wrote the following:

Understandign that doo doos happen, do most people also contact the companies when they fail to make payments on credit card accounts, mortgages, signature loans, etc? From what I see on this board we are all simply trying to get the items deleted without paying the debt. Otherwise, we would all make payment arrangements and then request deletions are accurate reportign of the account. Please dont' jump on a freakin soap box with me.

Once again, if you wish to share a strategy with me for having this item deleted, I would appreciate it.

Please, people! There are lots and lots of people who regularly post about thier collection accounts, charge offs etc. Bottom line is it doesn't matter what kind of debt the account is, you still owe it. Not paying your debts still hurts someone even if that someone operates under the name of a business. All businesses are made up of people who in turn have obligations and families.


The one that catches my eye is Bottom line is it doesn't matter what kind of debt the account is, you still owe it. So if you want us to share a strategy with you for having this item deleted you should listen to everything everybody had to say, regardless of where or not you want to hear it. All Dani and Creditman said was the truth.

Is the amount due worth all this? Really, make payment arrangements and dispute off ChexSystems and any CRA that it appears on.

If you have dispute with company regarding the service you better start documenting everything and why you didnâ??t paid. Remember itâ??s easier to demand a refund then it is to fight a collection.

Itâ??s a jungle out there kiddies
Have a fruitful day.

 

I'm with Coralreef on this one.....

If someone posted, "I'm trying to get this chargeoff off my CR", no one would respond by "Pay it and stop commiting a felony".

We don't know the circumstances around the situation and to jump to conclusions about it is just not fair.

Lisa asked a simple question - is she obligated to pay the CA. The answer is yes. It's really like you just didn't pay, in which case, they can assign someone to represent them to collect for them.

On a side note, like Desdemona said, IF (and it doesn't matter to me one way or another) you received services that were not satisfactory, you may want to try to negotiate with the OC. If you never received services, you can dispute the charge with the CA and the CRA.

In any case, it might just be easier to deal with the OC...this includes if you did NOT receive services.

And don't forget Cheksystems - if you didn't receive services, make sure that's cleared up also.

 

Let me make a quick reply on why I made the comment I did because of the statement above - "honestly I am concerned with what type of law I broke". I thought that meant she was not aware of the penalties she could possibly face. Maybe I read more into than necessary. That is why I was surprised at the backlash that I received. I was not judging, but basically stating this is what could happen and my own experience.

No where in my words did I say "pay them."

On the other hand the response I get "is f....ing, I don't care what you think of me, it is none of your damn business, blah, blah, blah.

It was uncalled for. The point of this board is to let consumers know of their rights, but they need to know what they are up against - legally, emotionally, and financially. If she tries to get this deleted the CA or OC could come back at her. Many people on this board have told about "waking the sleeping dragon". I suppose the best thing we could do is let her do this blindfolded?

Dani

 

Dani,
I wasn't infering you said anything specific, I was speaking in terms of general.

I am not condoning or blasting anyone's behavior, I'm saying, generally, let's stick to the questions and be mindful of our responses.

The one thing "posting" does not allow us it to hear the tone or inflection in ones voice. You're saying your statement was "informational" but was obviously construed as "judgemental" by the original poster. I'm exploring the possibility that maybe the wording of your post could have been posed differently? I don't know.

I don't think we need to go around this board as if we're walking on eggshells either. I guess I'm wondering where the happy medium is.

 

SweetnSas,

The problem is we are on a message board, there is no tone. If we construe that someone said something to offend us, which did not include the words "you are a loser" in the sentence then we have to think that they are trying to help us.

Basically, everyone knows how most of us speak or generalize just because we have been here for so long or posted enough.

Eg. I know when George is mad because HE USES ALL CAPS TO MAKE HIS POINT! Or when Mark LA is making a joke.

If someone thinks someone is trying to offend them just ask..."is this what you meant?" Also, when"you" is used (without addressing someone by name) it is usually a generalization. I am guilty of that, maybe I need to start using 3rd persons, instead of "you".

But I don't like being cursed at. We all need to respect everyone on this board and if we don't agree with what someone is saying...then disagree, but NO ONE deserves to be directed at such language or read such language.

End of story.

Dani

 

To everyone interested,
As an ex-banker I was trying to wordsmith all the ins and outs of bounced checks. Every state has their own statutes but they are basically the same as they follow federal guidelines in writing their statutes. Luckily I found this on a google search and it is the whole story concerning bounced checks. It is the Tennessee statutes not remarkably different from NY, NJ, CT or PA...which are the states I was most familiar with when working for the bank.

Hope this helps mediate the discussion...as everyone was partly right and no one was all right in reference to the bounced check laws. BTW I am going to have to post it in parts...as it is long! (but a very informative read)

clc

=====================================
WHEN CAN BAD CHECKS BE PROSECUTED UNDER THE TENNESSEE WORTHLESS CHECK LAW?

Not every check that bounces can be prosecuted as a criminal bad check.

The Tennessee Worthless Check law [TCA 39-14-121] applies when a perpetrator receives something of value from a victim in exchange for a check given at the time the goods are surrendered, with the perpetrator representing the check to be good at the time of the exchange and the perpetrator knowing that the check will not be honored when it reaches the bank, due to insufficient funds or a closed account.

AN ILLUSTRATION

Imagine this scenario:

Perpetrator approaches the cashier at Grocery Store with a sack of groceries.

Perp: "Iâ??d like you to let me take these groceries home, please."

Grocer: "Certainly, but only if you pay me for them. We do not operate on credit here; you must give me cash. Fifty dollars, please."

Perp: "I donâ??t have any cash on me, but instead I will give you this check for $50. It is just as good as cash."

Grocer: "Alright, on that basis I will let you have the groceries in exchange for that check."

If the bank in fact does not honor the check, due to a closed account or insufficient funds, the Grocer is "out" the bag of groceries because he relied on the check being good when he surrendered his property to the Perp. And if the Perp knew the check would not be honored, he is guilty of a crime for obtaining property by representing a worthless piece of paper to be as valuable as a $50 bill.

NO CRIMINAL PROSECUTION ON CHECKS FOR PRE-EXISTING DEBTS

If the perpetrator received the goods or services sometime in the past and makes a payment on his debt with a bad check, it is not a criminal matter. The victim is not "out" anything from surrendering anything in reliance on a fraudulent representation of the worth of the check. Essentially the perp owed a payment and just still has not made it, and can be sued or whatever as if he had made no payment at all.

NO CRIMINAL PROSECUTION FOR POST-DATED OR "HOLD" CHECKS

If the perpetrator asks the victim to hold the check for a few days before depositing it, and the victim agrees, the case is no longer a criminal matter. This amounts to the perpetrator saying , "This check is NOT as good as cash today. I plan to make it good, and you will be paid for your merchandise in the future." THAT is a debt, a civil case. The same applies if the perpetrator gives and the victim accepts a post-dated check. The legal significance of post-dating is that the check is not expected to be good until the date on the check. If the check bounces it is equivalent to the perpetrator not honoring an IOU.

 

Part II
=====================================
"CHECK ADVANCE" TRANSACTIONS

For the above reasons, checks written in so-called "cash advance" transactions (where money is loaned in exchange for a post-dated check, which is returned on payment) are not covered by the criminal bad check law. There is essentially an understanding between the parties that the check is not good on the date the money is received, and that it is not expected to be good until the future time when it is post-dated. The check is essentially an IOU, or collateral for the loan.

The business can indeed sue civilly to collect the loan. But threats to file criminal charges are not appropriate.

(In the past, criminal charges on such checks have gotten filed without the D.A.â??s knowledge or approval. They have been promptly dismissed when brought to the attention of this office.)

THIRD PARTY CHECKS

Al writes a check to Bob. Bob endorses the check to Grocer to buy a bag of groceries. The check bounces. Who can be prosecuted criminally?

Bob can be prosecuted criminally if he knows Alâ??s check is no good. Depending on the relationship between Bob and Al, it might or might not be possible to prove this knowledge.

Al might be prosecuted criminally but it would depend on the circumstances under which he wrote the check to Bob; that is, the check would have to have been for something of value received at the time, and would have to have been represented to be good at the time. In a sense, the middle party, Bob, is the victim of the bad check writer, even though the harm has fallen on the last person to receive the check. Before prosecuting Al, the Grocer would need to know the above information from Bob, and would need his cooperation in court as a witness. Due to these complications the District Attorneyâ??s office strongly discourages merchants from accepting third-party checks.

Of course in the above scenario both Bob and Al can be pursued civilly on the check; the Grocer is not totally without remedy for the groceries he is "out."

FRAUDULENT INTENT

A bad check is a criminal matter only when the perpetrator passes it knowingly or with fraudulent intent. This intent is one of the elements which must be proved in court. In the real world many people occasionally bounce a check due to carelessness, sloppy arithmetic, or various other innocent accidents. This does not excuse them from making the check good so that the victim is not "out," but the matter is nevertheless not criminal unless it is established that the perpetrator knew when he passed the check that it would be no good, and that he did so intending to defraud the victim.

PROVING FRAUDULENT INTENT

The Tennessee Worthless Check statute provides two handy ways to show in court that a checkwriter had fraudulent intent or knowledge of a checkâ??s worthlessness at the time he passed it:

(1). If the perpetrator had no account at the bank at the time he passed the check; or

(2). If the perpetrator does not come and make the check good after being advised it has bounced for insufficient funds. In effect the perpetrator is given the benefit of the doubt that an insufficient funds check was an honest error; failure after notice to make the victim whole (that is, keeping the property, unpaid for, while the victim is still "out") erases that benefit of the doubt and creates an inference of fraudulent intent. The particular requirements of the notice are discussed below.

SENDING NOTICE OF INSUFFICIENT FUNDS CHECKS

The Tennessee Worthless Check statute states that fraudulent intent can be inferred if the bad check writer does not make the check good within ten (10) days of receiving notice of the problem. [Note that this applies if the check was presented to the bank and payment refused within 30 days of the writing of the check.]

The statute further states that "notice shall be in writing, and, if the address is known, sent by certified mail with return receipt requested, and addressed to the issuer or passer at the address shown: (1)On the check or similar sight order if given; or (2)If not shown on the check or similar sight order, on the records of the bank or other drawee if available."

[Note that it is a matter of some debate whether the notice must be by certified mail, rather than regular mail, and if either is legal which is preferable. There is a presumption in the law that people receive the regular mail sent to them, but this could be rebutted in court by the Defendant or a household member testifying the mail never arrived. With certified mail there is clear proof the Defendant received his mail, but also clear proof he did NOT if he is shrewd enough not to claim his certified mail. On balance it is probably better to go the certified route, and that is what this office recommends.]

Note further that TCA 39-14-122 provides immunity from liability for false arrest for anyone taking out bad check charges if the statutory procedures, including use of a CERTIFIED letter, have been followed.

See this suggested form for a notification letter.

 

Good post clc, very informative!

coral