Bill 2423

                    Current Status

Bill Number:               2423
Ratification Number:       793
Act Number                 669
Introducing Body:          House
Subject:                   Relating to drawing and uttering
                           fraudulent checks

(A669, R793, H2423)

AN ACT TO AMEND SECTION 34-11-60, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DRAWING AND UTTERING FRAUDULENT CHECKS, SO AS TO REDEFINE "CREDIT", SO AS TO DELETE THE EXCLUSION FOR POSTDATED CHECKS; AND TO AMEND SECTION 34-11-70, AS AMENDED, RELATING TO PRIMA FACIE EVIDENCE OF FRAUDULENT INTENT IN DRAWING A CHECK AND DETERMINATION OF PROBABLE CAUSE FOR PROSECUTION, SO AS TO REDUCE THE NOTICE REQUIREMENT FROM FIFTEEN TO TEN DAYS, TO RAISE THE SERVICE CHARGE ON DISHONORED CHECKS FROM TEN TO FIFTEEN DOLLARS, AND TO DELETE PROVISIONS RELATING TO SERVICE CHARGES FOR CHECKS FOR PREEXISTING DEBTS.

Be it enacted by the General Assembly of the State of South Carolina:

Credit defined

SECTION 1. Section 34-11-60(d) of the 1976 Code is amended to read:

"(d) The word 'credit' as used in this section means securing further advances of money, goods, or services by means of a check, draft, or other written order, given in whole or in part payment of a then existing account. Payment for meals, lodging, or other goods or services at any hotel, motel, or other hostelry by means of a check, draft, or other written order at any time prior to or upon departure or checkout from such hostelry must be construed as obtaining those goods or services by means of such check, draft, or other written order for the purposes of this section. This section does not apply to any check given only in full or partial payment of a preexisting debt, to the giving of any check, draft, or other written order where the payee knows, has been expressly notified, or has reason to believe that the drawer did not have an account or have on deposit with the drawee sufficient funds to insure payment of the check, nor to any check which has not been deposited to an account of the payee within a period of ten days from the date the check was presented to the payee. It is also unlawful for any person to induce, solicit, or to aid and abet any other person to draw, make, utter, issue, or deliver to any person including himself any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, being informed, knowing, or having reasonable cause for believing at the time of the inducing, soliciting, or the aiding and abetting that the maker or the drawer of the check, draft, or other written order has not sufficient funds on deposit in, or an account with, the bank or depository with which to pay the same upon presentation."

Insufficient funds

SECTION 2. Section 34-11-70 of the 1976 Code, as last amended by Act 75 of 1987, is further amended to read:

"Section 34-11-70. (a) When any check, draft, or other order is not paid by the drawee because the maker or drawer did not have an account with or sufficient funds on deposit with the bank or the person upon which the draft, check, or other written order was drawn when presented or the draft, check, or order has an incorrect or insufficient signature on it, and the maker or drawer of the check, draft, or other written order fails to pay the amount due on it, together with a service charge of fifteen dollars, within ten days after written notice has been sent by certified mail to the address printed on the check or given at the time it is tendered or provided on a check-cashing identification card stating that payment was refused upon the instrument, then the check constitutes prima facie evidence of fraudulent intent against the maker. All service charges collected pursuant to this section must be paid to the payee of the instrument.

(1) For purposes of subsection (a), notice must be given by mailing the notice with postage prepaid addressed to the person at the address as printed or written on the instrument. The giving of notice by mail is complete upon the expiration of ten days after the deposit of the notice in the mail. A certificate by the payee that the notice has been sent as required by this section is presumptive proof that the requirements as to notice have been met, regardless of the fact that the notice might not actually have been received by the addressee. The form of notice must be substantially as follows:

'You are notified that a check or instrument, numbered_____ , issued by you on ___________ (date), drawn upon___________ (name of bank), and payable to ___________ , has been dishonored. Pursuant to South Carolina law, you have ten days from the date this notice was mailed to tender payment of the full amount of the check or instrument plus a service charge of fifteen dollars, the total amount due being___________ dollars and __________ cents. Unless this amount is paid in full within the specified time above, the holder of the check or instrument may turn over the dishonored check or instrument and all other available information relating to this incident to the solicitor or other appropriate officer for criminal prosecution.'

(2) When any person instituting prosecution gives notice in substantially similar form provided in item (1) of this subsection to the person and the bank upon which the instrument was drawn and waits ten days from the date notice is mailed before instituting the criminal proceedings, there arises a presumption that the prosecution was instituted for reasonable and probable cause, and the person instituting prosecution is immune from civil liability for the giving of the notice.

(b) Any court, including magistrate's, may dismiss a case under the provisions of this chapter for want of prosecution. When any prosecutions are initiated under this chapter, the party applying for the warrant is held liable for all reasonable administrative costs accruing not to exceed twenty dollars if the case is dismissed for want of prosecution. Unless waived by the court, the party applying for the warrant shall notify, orally or otherwise, the court not less than twenty-four hours before the date and time set for trial that full restitution has been made in connection with the warrant, and the notification relieves that party of the responsibility of prosecution.

(c) Any court, including magistrate's, may dismiss any prosecution initiated pursuant to the provisions of this chapter on satisfactory proof of restitution and payment by the defendant of all administrative costs accruing not to exceed twenty dollars submitted before the date set for trial after the issuance of a warrant.

(d) For purposes of this chapter, subsequent persons receiving a check, draft, or other written order by endorsement from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, if the maker of the instrument has the same defenses against subsequent persons as he may have had against the original payee. However, the remedies available under this chapter may be exercised only by one party in interest."

Time effective

SECTION 3. This act takes effect July 1, 1987.