unintentionally wrote bad check

[keanro]

a few months ago I had a (1) book of checks come up missing so I had them stopped at the bank. The bank mixed up the numbers and stopped too many checks. I went back to the bank & had it fixed - I thought. I had to go back 3 times, finally closing the account and going to another bank. I ended up having about five or six checks get stopped that weren't supposed to & I ended up paying around $200 in returned check fees because the bank wouldn't fix it. Long story short, one of the stopped checks was written to Wal-Mart. I didn't know this until I tried to get groceries almost 2 weeks later. The check was for $20.77. After fees it came up to $50.77. I talked to someone at their central office & after I explained what happened, they said they would take a check from my new bank account. But about 2-3 weeks later they called and said they wanted to know why I hadn't paid them. I told them I had. Then the told me they wouldn't accept a check & that they had sent it back. I didn't want to end up paying for it twice, so I said that I would send a money order as soon as I got that check back. About a week or so later I finally got that check. So, the next day I could get to the post office before it closed was on a Sat. Well, the Fri. night before I was going I received a court summons that I was being sued for this darn check (Class A Misdomeanor). What can I do about this? I had no intention of not paying, and I had no idea that the check would not cash when I wrote it. What I really want to know is if I go ahead and send the money like I had planned, will I still have to go to court & if I do will it end up on my record? What can I legally do to prevent this? (I live in Muhlenberg Co. Kentucky.)
Thanks, sorry it was so long
Keanro

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

Well, that doesn't sound right. Usually such companies do not and CANNOT press criminal charges against you for that. This is usually a civil issue.

Okay, basically, get yourself a good attorney (a good petty theft attorney which is what this probably falls under) and have them pull up and see if there is a requirement of "mind set". If the crime requires the intent of defrauding or committing this crime, then your attorney will have to show you did not intend this.

If there is no intent requirement, get all the paperwork of all the transactions together and make sure you show you are innocent of this.

Once you are found innocent, make sure you get this taken off your record, an apology letter written, signed on every company's letter head that is involved with this stupid crime being charged against you. ON TOP OF ALL OF THIS, when you find the guilty party or parties, make sure you begin or threaten a suit of ABUSE OF PROCESS OR MALICIOUS PROSECUTION.

Hope this helps.

 

[Tracey]

Yes you should pay them. It's not like you're going to get out of paying them the $50.77!

Is this a criminal charge or a small claims action? If it's criminal, gather all your documentation about this whole fiasco. Especially get something from the bank about how many times you were in there trying to straighten this out. Also, be prepared to prove that you had plenty of money to cover the $20.77 check. The State has to prove that you knew the check would bounce when you wrote it, or that you stopped payment in bad faith. An honest mistake about how many checks to stop is not bad faith. Submit all documentation to the DA. They'll probably drop the charges.

If it's small claims, you'll need to send a letter to WalMart with payment giving them the entire timeline & telling them that you'll request terms for malicious prosecution if they pursue the case against you. (WalMart might get the $50.77 + costs of $50-100.) The only way you get out of paying the costs is if you can prove that WalMart agreed to wait until Monday, then sued you on Friday. BTW, don't send a money order, cause if they lose it you've lost the money. Send a cashier's check that can be reissued.

------------------
This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[keanro]

Thanks for the help everyone. First I would like to say to Tracey that I am in no way trying to get out of paying the $50.77, and I sent the money order via certified mail on Saturday morning. Unfortunately, the bank which all this happened at is not helpful at all and that was the reason I left it. They refused to even give a statement of apology, and basically told us to give it up. We really have no paper proof that it was the banks fault. Also, I am not sure if it is a civil suit or what since I have no legal experience. The court summons says "...charge of KRS 514.040, theft by deception under $300, class A misdemeanor, in response to a complaint filed by" a manager of Wal-Mart. It also says "Criminal Complaint" followed by a short description of what happened.
Now, I guess I have a major problem with the paperwork. Up until recently, I had every bank statement dating back 3 years. Two weeks ago, though I cleaned out my filing cabinet & got rid of all the old statements from the bank, keeping only statements from my new bank. I thought that all of this was over; then I get served with the papers. I was shocked. Is there any way the charges will be dropped when Wal-Mart gets the money? And what can I expect at court? If anyone can give any additional advice, I would really appreciate it.

[This message has been edited by keanro (edited June 13, 2000).]

 

[Tracey]

Yep, you're facing criminal charges. You need to hire an attorney immediately. Take out a loan if you have to. Go to your old bank and request duplicate statements back to 3 months before the stolen checkbook incident. The stopped check fee should be on it, with the list of check numbers. Take all this info to your attorney. (Interview several) It may seem silly to spend hundreds defending yourself from a bad $20 check, but you do not want any kind of conviction on your record. Talk to your attorney, but my guess is that the State will drop the charges when it hears your side of the story. Right now, all they know is that you wrote WalMart a check, then closed the account, then didn't pay right away. You need to be able to explain the delay in payment. (But talk to your attorney first.) I doubt the DA could secure a conviction, unless you're so seedy-looking that a jury would convict you on general principles! You might even consider a bench trial - faster & cheaper.

At your first appearance, you will show up, request time to find an attorney, maybe ask for a probable cause hearing, and request release without bail (small check, first offense, no flight risk). You may be required to enter a not guilty plea. Take someone with you who can present cash to a bondsman if you need to post bail. Then your lawyer tries to get the DA to drop the charges, pointing to the fact that you've already paid WalMart back & this was all just a horrible misunderstanding where one WalMart employee was not talking to the other.

------------------
This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[keanro]

Thank you very much, Tracey! I really appreciate all of your help. I have one more question, though. First off, I'm going to stop & talk to a lawyer on my way home from work tomorrow. As I said before, I've already sent a money order via certified mail. Well, the day after I mailed it someone from Wal-Mart called to see if I had sent payment yet (this was after I received the court summons). I of course told her that I had and also when and how. Today I called to confirm whether or not they had received it yet and I found out they had not. So, I repeated when I sent it and how, etc. Then I asked if they would drop the charges when they received it (before I read your reply). The guy said "what charges", so I filled him in on that. He told me that they would send the money order back because it was out of their hands. He said "why didn't you just pay it in the first place". So I told him that I had been trying to all along. He said he couldn't do anything about it after I explained the whole long story all over againl. What I would like to know is: 1) If he didn't even know about the court summons until after I told him, why won't they take the money? 2) If they can't do anything and it's out of their hands, why did someone call me after I had received the court summons (I'm guessing that that would have taken several days to go through the channels before it even got to me)?
Again, I'd like to thank you for all of your help. I'll be forever gratefull.

[This message has been edited by keanro (edited June 13, 2000).]

 

[Tracey]

Do I really need ot answer that? Have you never heard of bureaucracy? The right hand not telling the left what it's doing? They'll cash the check all right. And, wonder of wonders, once they cash the check they can't sue you to collect it and saddle you with court fees also.

------------------
This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[keanro]

Thank you very much everyone!!! I talked to a lawyer yesterday & he said it was the sillyest think he ever heard. He was confident that the DA will drop the charges as soon as he finds out about it. Thank you, thank you. The only down side is that its going to cost me $500, but I think its worth it. Once again, THANK YOU. You are doing great work, keep it up.