Worthless Check Division
Colbert County Courthouse
201 N. Main Street
Tuscumbia, Alabama 35674
Carol A. Merritt, Coordinator
Tony Tumlinson, Investigator
Rocky Holden, Investigator
The following information should be helpful in explaining the worthless check procedure in Alabama.
What is the procedure for accepting a check?
Should I accept two-party checks?
What about post dated checks?
How can writing a check turn into a crime?
What is the basis or presumption for deciding if a crime has been committed?
What is the process of prosecution for a worthless check?
Someone has written me a bad check, what do I need to do?
What restitution will be paid for a bad check?
Click her to print a copy of the statutory notice for an insufficient funds check.
PROCEDURE FOR ACCEPTING A CHECK
Although a check is intended to be the same as cash, it should not be accepted without first being thoroughly examined. You should have an established procedure in your business for taking checks and it should be strictly followed by you and your employees. It should include checking for the following items:
1. THE SIGNATURE: The signature on the check should be legible. Require that the check be signed in your presence and compare the signature with that on the individual's driver's license or other identification.
2. THE ADDRESS: Require a permanent or current street address, not just a post office box, to be written or printed on the check and affirmed by the writer.
3. HOME PHONE NUMBER
4. IDENTIFICATION: Write on the check the type of identification and the I.D. numbers. The person who accepts the check should also initial it as evidence that it was signed in their presence.
As a general rule, it is extremely difficult to establish a case on a two-party check. For this reason, it is a good idea not to accept two-party checks on individuals. We cannot accept these type checks in the Worthless Check Unit.
POST DATED CHECKS
Never accept a post dated check. As mentioned earlier, a check is payable on demand. An agreement that it be payable at some time in the future makes the instrument something other than a check. It then takes on the character of a promissory note. The check writer is no longer representing that his bank account contains sufficient funds to cover the amount of the check. He is saying that the funds will be there at some time in the future. The Unit cannot accept post dated checks or checks intended to be treated as some other type of negotiable instrument.
The offense of Negotiating a Worthless Negotiable Instrument is a form of theft.
A negotiable instrument or check is a draft drawn on a bank and payable on demand. In other words, a check is intended to be the same as cash. By writing and presenting a check, a person represents that his bank account contains sufficient funds to cover the amount of the check.
The worthless check statute, found at 13A-9-13.1 of the code of Alabama, states:
"A person commits the offense of negotiating a worthless negotiable instrument if he negotiates or delivers a negotiable instrument for a thing of value and with the intent, knowledge or expectation that it will not be honored by the drawee." In laymen's terms, this statute provides that a person commits a misdemeanor if he cashes a bad check or pays for a thing of value with a bad check.
As you can see form the language of the statute, intent is a necessary element of the offense. This would be difficult to prove if certain legal presumptions were not also included in the statute. They are as follows:
A person will be presumed to have intended, known or expected that his check would not be honored by the bank if at the time the check was negotiated or delivered, he had no such account. Even if a person has an account, he will be presumed to have intended to pass a worthless check if he fails to pay the holder of the check the amount of the check and a service charge of not more than $15.00 within (10) days after receiving written notice from the holder of the check that payment was refused by the bank. The check writer's criminal intention will also be presumed if the notice that payment was refused is mailed by certified or registered mail and is returned undelivered to the sender, when the notice was mailed within a reasonable time after dishonor to the address printed on the check or given by the person issuing or writing the check.
Since most business people receive an endless number of checks from people with whom they are not personally acquainted, identification of the person later in court might be difficult if not impossible. This problem is also addressed by the statute. There is a presumption as to the identity of the person issuing a check and that such person was a party authorized to write a check on the account if the person accepting the check requests and receives the name, residence address and home phone number of the person issuing the check. The information may be recorded on the check itself or the number of the check cashing identification card may be recorded on the check. The check cashing card may only be issued after the aforementioned information has been placed on file with the business accepting the check.
For this identity presumption to be effective, the person receiving the check must witness the signing of the check and as evidence of such, place their initials on the check. A person should never take a check not signed in their presence unless they know the check writer personally.
Some businesses have a policy of taking a check to the manager or supervisor for approval. If the manager initials the check but does not see the person presenting the check actually sign, then the presumption of identity is not effective. The person who receives the check and actually observes the signing, should be the one to initial the check.
CHECKLIST FOR FILING A WORTHLESS CHECK COMPLAINT:
Here is a list of items that should be checked before filing a complaint with the Worthless Check Unit:
1. The transaction must have taken place in Colbert County.
2. The check must be presented to the bank within thirty (30) days from the date the check is written.
3. The check must be stamped by the bank as to why it was returned.
4. If a check is returned for INSUFFICIENT FUNDS, you must send written notice to the address printed on the check or the address given at the time of issuance. This notice must be sent by certified or registered mail, with a return receipt requested. Be sure to send a separate notice for each check even if you have several checks on the same person. After the receipt is returned to you, check to see if it has been signed. If it has not been signed, bring it and the check to our office. If it is signed, there will be a date below the signature. You must give the check writer ten (10) days from that date to respond to your notice before bringing the check and the receipt to our office. If the letter itself is returned, DO NOT OPEN IT, but bring it along with the check to our office.
5. If the check is marked ACCOUNT CLOSED or NO ACCOUNT, you do not have to send a notice. Bring the check directly to our office.
6. If it is necessary to obtain a warrant it must be obtained within one year from the date of the transaction as it appears on the check.
7. Once charges are filed, they will not be dismissed unless approved by the check unit supervisor. There is a $30.00 fee for withdrawing a warrant.
8. By filing a complaint, you automatically waive your right to receive restitution directly from the check writer. Restitution should only be collected from the Worthless Check Unit.
9. If partial payment has been accepted on the check, it is no longer a criminal offense and cannot be handled by the Worthless Check Unit.
10. No two-party checks will be accepted.
11. No stop payment checks will be accepted.
12. No post dated checks will be accepted.
FILING A COMPLAINT
In 1984 the Alabama Legislature, recognizing that worthless checks were a major problem for businesses across the state, passed Act No. 84-704 (§12-17-224 of the code of Alabama) authorizing District Attorneys to establish a Special Services Division (Worthless Check Unit) to facilitate the handling of worthless checks. It is this unit in our office that will process your worthless check complaint.
The complaint will be evaluated by the Worthless Check Unit, and, based on the criteria set out in the Code, will be approved or disapproved for processing. If approved, a warrant will be issued by the magistrate and held by the Worthless Check Unit.
If the victim (the person filing the complaint) wishes to withdraw the complaint, at a later time, he will be required to pay a service charge of $30.00. The victim should never accept payment from the check writer after turning a check over to the Unit. This could result in the victim being subjected to a claim for malicious prosecution.
After the issuance of the warrant, the Unit will notify the check writer that a warrant has been issued for his arrest. The check writer will be advised that he may be eligible for deferred prosecution by voluntarily surrendering himself to the Worthless Check Unit within ten (10) business days from the date of the notice. At the discretion of the Unit, the check writer may be allowed to enter into a restitution agreement whereby he repays the amount of the check along with service charges.
If after receiving notice, the check writer fails to appear, the case will be prosecuted in accordance with applicable laws and procedures. Negotiating a Worthless Negotiable Instrument is a Class A misdemeanor punishable by up to one year in the County Jail or hard labor for the County for up to one year and/or a fine of up to $2000.00.
Restitution includes the face amount of the check and a service charge of not more than $30.00. After the restitution is collected, the money will be paid into the Worthless Check Fund and disbursed to the victim within a reasonable time, allowing for all necessary accounting and bookkeeping procedures.