07 LC 34
1115
House
Bill 564
By:
Representatives Dollar of the
45th,
Cheokas of the
134th,
and Roberts of the
154th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 16-9-20 of the Official Code of Georgia Annotated, relating
to deposit account fraud, so as to include the act when the accused had
insufficient funds in the account at the time the instrument was made and
immediately stopped payment on the instrument; to provide for starter checks; to
make an exception for rental payments; to correct cross-references; to provide
for related matters; to provide for an effective date; to repeal conflicting
laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Code
Section 16-9-20 of the Official Code of Georgia Annotated, relating to deposit
account fraud, is amended by revising subsections (a), (e), (h), and (i) as
follows:
"(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;
(3)
The accused had insufficient funds in the account with the drawee at the time
the instrument was made, drawn, uttered, or delivered and immediately stopped
payment on the instrument and retained the present consideration or services;
or
(4)
The accused or someone for him or her
shall not have tendered the holder thereof the amount due thereon, together with
a service charge, within 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:
'You
are hereby notified that the following instrument(s)
|
Number
|
Date
|
Amount
|
Name
of
Bank
|
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
|
__________
|
__________
|
__________
|
__________
|
drawn
upon ____________ and payable to ___________, (has) (have) been dishonored.
Pursuant to Georgia law, you have ten days from receipt of this notice to tender
payment of the total amount of the instrument(s) plus the applicable service
charge(s) of $________ and any fee charged to the holder of the instrument(s) by
a bank or financial institution as a result of the instrument(s) not being
honored, the total amount due being ____________ dollars and ______ cents.
Unless this amount is paid in full within the specified time above, a
presumption in law arises that you delivered the instrument(s) with the intent
to defraud and the dishonored instrument(s) and all other available information
relating to this incident may be submitted to the magistrate for the issuance of
a criminal warrant or citation or to the district attorney or solicitor-general
for criminal prosecution.'; or
(3)(5)
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."
"(e)(1)
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
With the
exception of the instance wherein the instrument is a starter set of checks,
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)(2)
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)(3)
In addition to the information required in this subsection,
except where
the instrument is a rental payment to a landlord for a
residence, 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."
"(h)(1)
Any party holding a worthless instrument and giving notice in substantially
similar form to that provided in subparagraph
(a)(2)(B)
(a)(4)(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)(4)
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."
SECTION
2.
This
Act shall become effective on July 1, 2007.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.