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Barrister
Barrister, Criminal Defense Law
Category: Criminal Law
Satisfied Customers: 34781
Experience:  16 years practicing criminal defense.
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This is so silly, but could you please settle an argument between

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This is so silly, but could you please settle an argument between my husband and me? He saw something on TV, I responded, & thus, the argument. The issue is: You have an overdraft protection account attached to your checking account with a credit line of, say, $5000. (Assume you have no personal history or relationship with bank,make no additional deposits & bank likes taste of blood) You write checks, bring your account balance to zero. Continue writing checks, going into overdraft protection, and bringing balance up to $5,000. The next check you write, the bank returns to payee as NSF. Payee now has potential criminal charges against you. At this point, you walk away from bank, leaving an unpaid debt of $5,000 on the overdraft protection account. Question:Does the bank have potential criminal charges against you for the NSF checks they paid on your behalf, or is this simply a bad debt or delinquent credit issue? After you answer, I'll tell you who the winner of this argument is! :)

The answer would depend on if there was any intent to defraud the bank by continuing to write the checks. If you were aware of the balance on the account and continued to write the checks, intent could be imputed and you could potentially be charged with check fraud and theft by deception.

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The payee would also be able to file criminal charges for theft by deception because the person writing the check knew it was bad.

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thanks.

Matt

 

 

Customer: replied 6 years ago.
Fraud is very difficult to prove. If just one deposit is made that was able to cover the first monthly payment, that could be used as a defense. If no desposits made, no money for bank to draft as a payment, then a charge of fraud would have better chance of standing. But, botXXXXX XXXXXne, the bank (and payees, if bank notified them) would have potential criminal charges.

Am I correct in all this?

Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.

 

So when the person knew there was no money in the account and continued to write checks that induced the payee to act, they definitely fall under the class of intentional fraud.

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So yes, both parties could file criminal charges.

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Thanks

Matt

 

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