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  1. #1
    searchscout is offline Junior Member
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    Attempted prosecution for post-dated check

    What is the name of your state? Wisconsin

    Hi, my husband and I stayed in a hotel for a month while we were looking at houses across the state. We had it set up with the monthly rate, knew the manager, etc. Well every week he would charge our credit card for the amount we stayed there, he didn't charge it all at once. The second week our credit card declined, and he asked for cash or a check. He accepted a post-dated check for the next week, which cleared. When we left, we gave him the rest of the money in another post-dated check, which he agreed to hold and did hold till a month later. On the memo of the check it says in big letters "DO NOT CASH UNTIL 9/30/06", which he did. However, it bounced. We offered to pay in payments and he refused, taking it to the DA. The DA just sent a letter saying we need to pay it in 5 days or face a criminal complaint and summons or possibly a warrant. I was under the impression that you could not be prosecuted for post-dated checks, as that is a civil matter, not criminal, and is an extension of credit. I have a reciept for 08/29/06 showing amount paid with check, and on the check it says "do not cash until 09/30/06, and my bank shows he did not attempt to cash until that time. So I don't understand how they can prosecute! Is this legal? Should I get a lawyer? Are they just trying to scare me?
  2. #2
    CdwJava is offline Senior Member
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    They may be operating under the presumption that you wrote a check KNOWING you lacked the funds to cover the check, and this CAN be a criminal matter.

    So ... do you really want to be in the position of having to hire an attorney at $150+/hour to argue that it's a civil matter?

    Pay the check or risk the wrath of the DA. My guess is that the DA is not going to threaten prosecution unless it is legally possible.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  3. #3
    searchscout is offline Junior Member
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    I put ~"post dated checks" prosecution~ in google and many search results took to me to different city websites, where ALL of them state that post-dated checks are ineligible for prosecution, the reason being that if the other person agrees to hold it, BOTH people knew there were insufficent funds in the account at the time that the check was written, which turns it into a credit transaction. This is why payday loan places cannot prosecute people who fail to pay the payday loan after they have written a post-dated check out. However- knowing this, I thought there might be something different in my case that made it so they COULD prosecute me.
  4. #4
    CdwJava is offline Senior Member
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    It depends upon the statute under which the prosecution is made. In my state they can and do prosecute these if they can support a claim of fraud ... i.e. intentionally writing the check without the intent to pay.

    Like I said, it is up to you ... you can call the DA's "bluff" and roll the dice, or you can pay the debt. How lucky do you feel?

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  5. #5
    CdwJava is offline Senior Member
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    Lookin gat sigtes in your state it also seems that some DA's offices allow the merchant to send letters in theoir name demanding payment within five days ... it could be that the DA sends these letters on the merchants' behalf as well.

    Is there some good reason why you did not have the money in the account or have chosen not to pay your debt? Or are you just trying to get a free ride?

    Additionally, if you are looking at houses, do you really want a debt to go to collections and thus effect your credit rating?

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  6. #6
    searchscout is offline Junior Member
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    I wasn't trying to get a free ride....the first post dated check cleared and we intended for the second one too as well. However, a month later when the time rolled around we were right in the middle of moving and had so many expenses and just didn't have the money, so it bounced. Granted it's the wrong thing to do and I'd probably change it if I could go back in time, but I can't. I can assure you I do not go writing NSF checks will-nilly, especially ones for $400. . I have had maybe 3 NSF checks in the past year which were paid by the bank. I offered to make payments to him. How could they possibly prove an intent to defraud?
  7. #7
    CdwJava is offline Senior Member
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    Hey, all I can say is that it is entirely up to you. If it were me, I would follow the instructions on the letter and make restitution and be done with it. I don't understand why you seem to NOT want to do that?

    I don't think it wise to play a game with the DA ... you are braver person than I.

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  8. #8
    searchscout is offline Junior Member
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    I "don't seem to not wanna do that" because I don't have $400 to pull out and hand to the DA. Furthermore, I wouldn't want to if they are attempting intimidate me into paying because they think I don't know the law. Thats why people come here- to find out about the law. If the law says I am not a criminal for bouncing a post-dated check, then I want to know that. It's important to know your rights. If the DA sent me something charging me with Burglary, and I didn't think I commited burglary, I'd look into that also. That's hardly "playing a game" with the DA. I simply believe I am being accused of something I didn't necessarily do under the law, passing a worthless check- although the check was no good the LAW may state that I am only guilty of not paying a debt- which is a civil matter. Being a cop supervisor you probably think every one of us that comes here asking for advice is guilty of the charge, needs to pay their debt to society, stop whining etc. - but hey thanks for the advice.
  9. #9
    CdwJava is offline Senior Member
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    The only way to know for sure given your specific circumstances and local court would be to consult an attorney. The retainer for said attorney will almost certainly cost considerably more than the $400 you owe.

    Perhaps I just don't understand the reluctance to pay one's debts.

    You may be right ... but how much are you willing to spend in court to avoid paying the $400?

    - Carl
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  10. #10
    insanesmooch is offline Junior Member
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    Although I can't help you on whether or not you can be criminally prosecuted for a post dated check, I can tell you I worked for a bank and dates did not mean anything to us. I was in operations where we received payments for companies though the mail. Unless the customer (the business we were doing the receiving of funds for) said not to take a check for something, then we took it. Dates or notes about not cashing it until later did not mean anything to us. We send it through if there was no signature, if only one amount written/numerical was missing, all of it could be sent through. It was all legal.
    So, if all of this is acceptable where you are too (I'm in TN), then they are probably just looking at it as a regular check that bounced.
  11. #11
    searchscout is offline Junior Member
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    I've heard that mentioned before. However, the way i'm reading it, if he would have ignored the date on the check and cashed it right away, then it would be eligible for prosecution. In that he would be saying he didn't know that the funds weren't in the account right away, and that he thought the check was as good as money. Apparently, when one agrees to wait, for any amount of time , before cashing the check they are extending you credit. This makes the case a civil matter. This amounts to the perpatrator saying "This check is NOT as good as cash today. I plan to make it good, and you will be paid for your merchandise (services, etc) in the future."

    Therefore, not honoring the check is equivalent to not honoring an IOU.

    [url]http://www.attorneygeneral.org/gencheck.html#c4[/url]

    Ofcourse, this is a different state, thats why I came here to ask if anyone knew about Wisconsin.
  12. #12
    seniorjudge is offline Senior Member
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    Talk to the DA and point out to him that this is not a check but a promissory note.
    There are two rules for success:

    (1) Never tell everything you know.

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