Using the Criminal Justice System to Collect NSF Checks

Article excerpt

It has long been a controversy in my region of the country, but maybe it's time for a fresh look at using the criminal justice system to recover funds from COD or cash customers who write bad checks. "We don't like to be used as a collection agency" is the phrase often repeated when someone in the criminal justice system is asked about NSF checks. Maybe it's time the business community pushed prosecutions despite the local governments admonitions. Their position is understandable given the proliferation of crime and the clogged court calendar. No doubt there is also a great number of people writing bad checks. This article is not intended to criticize our local judicial system. It asks the question, should we insist on prosecution in spite of the government's concern about being a collection agency?

This article demonstrates a successful method for recovering NSF checks in Virginia using the criminal justice system. This method works; however, the focus of the procedure is not necessarily to collect the bad cheek. Collecting the bad check and diminishing the proliferation of bad check writing in your community is a byproduct of doing the right thing-prosecuting! Just as a student gets an A for studying, the A is a byproduct of studying for the sake of learning. Consider nay most recent experience on the subject ...

In the spring of 2003, a cash customer approached our sales counter and paid for her purchase with a check that subsequently bounced. I tried calling her and wrote her a friendly letter, but she would not respond to either solicitation. I then tried to draft the funds from her bank account around the first of the month thinking she may have enough funds in the account to cover the check, knowing that drafts are given priority by the bank. Again, I had no luck. As so often is the case, I gave up and referred the check to nay favorite collection agency. Lacking substantive size, their aggressiveness was less than desired and they, as you might expect, had no success. You can't blame the agency--and the small amount of the check precludes civil legal action also. Worse yet, this theme plays over and over and over throughout the year, and at the end of year the write-off for bad cheeks is a substantial amount!

I had heard at one of my NACM meetings that some of the members "get the law after them!" Every time I made a phone call to our local law enforcement folks, primarily the state's attorney, I was told, "We don't like to be used as a collection agency". I wondered how some of my contemporaries were using the government to their advantage while I was getting nowhere? At my wits end, I decided to take action anyway.

To start with, I wanted to make certain that writing a bad check for a non-credit purchase was actually against the law. I sent an e-mail to the local police chief, inquiring. Within an horn, one of his subordinates called to explain that writing a check in excess of $200 with the "intent to defraud" is a class six felony" in Virginia. The key clement here is intent. To prove intent he told me I would have to send a certified letter giving the subject reasonable time to come in a make the check good. If the letter got no response, a compelling case could be made that the maker of the check intended to defraud. He provided the hours and the location of the magistrate and urged me to visit him if my letter got no response.

The certified letter was sent, and I allowed for ten days for the maker to contact me regarding the bad check. As you might have guessed, I received no response. On the fifteenth day, I visited the magistrate. "You know you can go after them in civil court" he exclaimed. "I have never had any luck in civil court, and the amount involved makes it very impractical. I wish to prosecute the maker of this check," I replied. He later explained that he was required to inform me of the possibility of going after the maker in civil court. I viewed his remarks as resistance--much the same as I had heard for many years in the past. …