Check Fraud

[Gekko]

texas, customer paid by check for printing job, then put a stop payment on check, what can I do? he will not pay and says I cannot do anything about it. please help

 

[I AM ALWAYS LIABLE]

texas, customer paid by check for printing job, then put a stop payment on check, what can I do? he will not pay and says I cannot do anything about it. please help

My response:

Well, you can always hire Bubba. Bubba is about 6'3", weighs 400 pounds, and knows how to make cement shoes.

Or, you can sue the guy in Small Claims court. He can't keep your goods and the money.

IAAL

 

[JETX]

Actually, you have a couple of options:

1) Threat of criminal action. Contact the check writer and advise him that if he doesn't make good on the check, you will file a criminal complaint against him. If he doesn't take care of it within a reasonable time (5 business days?), you can should contact your local 'intake' office at the county DA and file a 'hot' (fraudulent) check charge against the writer. Then, they will issue an arrest warrant for him.

2) Threat of civil action. Contact the check writer (certified RRR) and make a demand for payment. Allow him a few days (5??) after receipt for a response. If he doesn't make good, then go to your local county JP office and file a Small Claims complaint against him. Generally for less than $100 (recoverable if you win), you will get your day in court and, hopefully, get a judgment against the writer. Then your only problem will be trying to get him to pay it.

 

[I AM ALWAYS LIABLE]

My response:

Steve, our writer describes a "stop payment."

Is it not also the law in Texas, as it is in California, that a "Stop Payment" places the matter out of the realm of Criminal law, and only within the purvue of Civil Law ? I.e., that when a "Stop Payment" is placed on a check in California, it indicates a Civil dispute rather than Criminal intent.

In California, a check that "bounces" (if it's over $25.00), is subject to Criminal liability as well as Civil liability - - but not when a "Stop Payment" has been placed on the check.

Please clarify the Texas position.

IAAL

 

[JETX]

In Texas, assuming it wasn't a post dated check, putting a 'stop pay' on a payment for goods or merchandise CAN be considered "Presumption for Theft by Check"" (Texas Penal Code, §31.06). Here is an excerpt from the Statute:
"(f) If the actor obtained property by issuing or passing a check or similar sight order for the payment of money, the actor's intent to deprive the owner of the property under Section 31.03 (Theft) is presumed, except in the case of a postdated check or order, if:
(1) the actor ordered the bank or other drawee to stop payment on the check or order;
(2) the bank or drawee refused payment to the holder on presentation of the check or order within 30 days after issue;
(3) the owner gave the actor notice of the refusal of payment and made a demand to the actor for payment or return of the property; and
(4) the actor failed to:
(A) pay the holder within 10 days after receiving the demand for payment; or
(B) return the property to the owner within 10 days after receiving the demand for return of the property."
Source: http://www.capitol.state.tx.us/statutes/pe/pe003100.html#pe004.31.04

Further, in Texas (again, depending on the full circumstances), this could be considered 'False Statement to Obtain Property or Credit' (Texas Penal Code, §32.32), which says in part:
"(b) A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit for himself or another."
Source: http://www.capitol.state.tx.us/statutes/pe/pe003200.html#pe009.32.32

 

[I AM ALWAYS LIABLE]

My response:

Wow, criminal intent is presumed - - even if there's a bonifide dispute ? Incredible.

Tough State.

Thank you Steve.

IAAL

 

[JETX]

Yep, it forces the person who issues the 'stop pay' to have the burden of proof in a civil dispute.. which is really where it should be.