Bill Text: MS HB498 | 2011 | Regular Session | Introduced

Mississippi House Bill 498 (Prior Session Legislation)

Introduced

Bill Title: Bad check law; revise and include electronic transfers.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2011-02-01 - Died In Committee [HB498 Detail]

Download: Mississippi-2011-HB498-Introduced.html

MISSISSIPPI LEGISLATURE

2011 Regular Session

To: Judiciary B

By: Representative Mims

House Bill 498

AN ACT TO AMEND SECTIONS 97-19-55, 97-19-57,97-19-61, 97-19-62, 97-19-63, 97-19-65, 97-19-67 AND 97-19-69, MISSISSIPPI CODE OF 1972, TO REVISE THE BAD CHECKS AND INSUFFICIENT FUNDS LAW TO INCLUDE ELECTRONIC TRANSFERS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-19-55, Mississippi Code of 1972, is amended as follows:

97-19-55. (1) (a) (i) Issuing worthless checks is the issuing in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, order or electronic transfer for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank or other depository for the payment of such check, draft, order or electronic transfer in full upon its presentation.

(ii) This section shall apply to a check, draft, order or electronic transfer tendered for satisfaction, in whole or in part, of payments due on installment contracts, open accounts or any other obligation for which the creditor has authorized periodic payments or the extension of time in which to pay.

(iii) This section shall apply to a check, draft, order or electronic transfer tendered for satisfaction, in whole or in part, of a state tax obligation. For purposes of this section, "state tax obligation" means a state tax, interest, penalty, fee or any contract, installment agreement or other obligation arising out of such obligation.

(iv) For purposes of this section, any check, draft, order or electronic transfer tendered for payment of any tax, fee, fine, penalty or other obligation to the state or any of its political subdivisions shall be considered issuing a check, draft, order or electronic transfer in exchange for anything of value.

(b) The offender's failure to pay a check, draft, order or electronic transfer issued for value within ten (10) days after notice of its nonpayment upon presentation has been deposited by certified mail in the United States mail system addressed to the issuer thereof either at the address shown on the instrument or the last known address for such person shown on the records of the bank upon which such instrument is drawn or within ten (10) days after delivery or personal tender of the written notice to said issuer by the payee or his agent, shall be presumptive evidence of his intent to defraud.

(2) Issuing worthless checks is also the issuing, in exchange for anything of value, whether the exchange is contemporaneous or not, with intent to defraud, of any check, draft, order or electronic transfer for the payment of money or the issuing of such an instrument for the payment of a state tax obligation, when the offender knows at the time of the issuing that the account designated on the check, draft, order or electronic transfer has been closed or is nonexistent or fictitious, or is one in which the offender has no interest or on which he has no authority to issue such check, draft, order or electronic transfer.

SECTION 2. Section 97-19-57, Mississippi Code of 1972, is amended as follows:

97-19-57. (1) As against the maker or drawer thereof, the making, drawing, issuing, uttering or delivering of a check, draft, order or electronic transfer, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided such maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge of Forty Dollars ($40.00), within fifteen (15) days after receiving notice that such check, draft or order has not been paid by the drawee.

(2) For purposes of Section 11-7-12, the form of the notice provided for in subsection (1) of this section shall be sent by regular mail and shall be substantially as follows: "This statutory notice is provided pursuant to Section 97-19-57, Mississippi Code of 1972. You are hereby notified that a check, draft, order or electronic transfer numbered _____, apparently issued by you on _____ (date), drawn upon _____ (name of bank), and payable to _____, has been dishonored. Pursuant to Mississippi law, you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check, draft, order or electronic transfer, plus a service charge of Forty Dollars ($40.00), the total amount due being $_____. Failure to pay this amount in full within the time specified above shall be prima facie evidence of and create a presumption of both the intent to defraud and the knowledge of insufficient funds in, or on deposit with, such bank in violation of Section 97-19-55."

(3) For purposes of Section 97-19-67, the form of the notice provided for in subsection (1) of this section shall be sent by regular mail, supported by an affidavit of service by mailing, and shall be substantially as follows: "This statutory notice is provided pursuant to Section 97-19-57, Mississippi Code of 1972. You are hereby notified that a check, draft, order or electronic transfer numbered _____, apparently issued by you on _____ (date), drawn upon _____ (name of bank), and payable to _____, has been dishonored. Pursuant to Mississippi law, you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check, draft, order or electronic transfer, plus a service charge of Forty Dollars ($40.00), the total amount due being $_____. Unless this amount is paid in full within the time specified above, the holder may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument and all other available information relating to this incident to the proper authorities for criminal prosecution."

(4) If any notice is returned undelivered to the sender after such notice was mailed to the address printed on the check, draft, order or electronic transfer, or to the address given by the accused at the time of issuance of the instrument, such return shall be prima facie evidence of the maker's or drawer's intent to defraud.

(5) Affidavit of service by mail shall be adequate if made in substantially the following form:

"STATE OF ____________

COUNTY OF ____________

________________, being first duly sworn on oath, deposes and states that he/she is at least eighteen (18) years of age and that on (date)______________, 2___, he/she served the attached Notice of Dishonor by placing a true and correct copy thereof securely enclosed in an envelope addressed as follows:

______________________________

and deposited the same, postage prepaid, in the United States mail at ________________________, __________________________.

__________________________________

(signature)

Subscribed to and sworn before me, this the ________ day of _____________________, 2___.

_________________________________

(Notary Public)

My commission expires:

(SEAL)"

(6) Without in any way limiting the provisions of this section, this section shall apply to a draft for the payment of money given for a motor vehicle even if such payment is conditioned upon delivery of documents necessary for transfer of a valid title to the purchaser.

SECTION 3. Section 97-19-61, Mississippi Code of 1972, is amended as follows:

97-19-61. Such notice as is provided for in Section 97-19-57 is dispensed with: (a) in the event the situs of the drawee is not in the State of Mississippi; (b) if the drawer is not a resident of the State of Mississippi or has left the State of Mississippi at the time such check, draft, order or electronic transfer is dishonored; or (c) if the drawer of such check, draft, order or electronic transfer did not have an account with the drawee of such check, draft, order or electronic transfer at the time the same was issued or dishonored, or payment of the check is denied because the account was closed at the time the check, draft, order or electronic transfer was issued or dishonored.

SECTION 4. Section 97-19-62, Mississippi Code of 1972, is amended as follows:

97-19-62. (1) In any prosecution or action under the provisions of Section 97-19-55, a check, draft, order or electronic transfer for which the information required in subsections (2) and (3) of this section is available at the time of issuance, utterance or delivery shall constitute prima facie evidence of the identity of the party issuing, uttering or delivering the check, draft, order or electronic transfer and that such person was a party authorized to draw upon the named account.

(2) To establish prima facie evidence of the identity of the party presenting such check, draft, order or electronic transfer, the following information regarding such identity shall be requested by the party receiving such instrument: The presenter's name, residence address and home phone number. Such information may be provided in the following manner:

(a) The information may be recorded upon the check, draft, order or electronic transfer itself; or

(b) The number of a check-cashing identification card issued by the receiving party may be recorded on the check, draft, order or electronic transfer. Such check-cashing identification card shall be issued only after the information required in this subsection has been placed on file by the receiving party.

(3) In addition to the information required in subsection (2) of this section, the party receiving the check, draft, order or electronic transfer shall witness the signature or endorsement of the party presenting such instrument and, as evidence of such, the receiving party shall initial the instrument.

SECTION 5. Section 97-19-63, Mississippi Code of 1972, is amended as follows:

97-19-63. It shall be the duty of the drawee of any check, draft, other order or electronic transfer for the payment of money, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto, the reason for drawee's dishonor or refusal of the same. In all prosecutions under Sections 97-19-55 through 97-19-69, the introduction in evidence of any unpaid and dishonored check, draft, other order or electronic transfer for the payment of money, having the drawee's refusal to pay stamped or written thereon or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or uttering of said check, draft, other order or electronic transfer for the payment of money and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped or attached by the drawee on such dishonored check, draft, other such order or electronic transfer for the payment of money.

SECTION 6. Section 97-19-65, Mississippi Code of 1972, is amended as follows:

97-19-65. Each making, drawing, issuing, uttering or delivering of any such check, draft, order or electronic transfer as aforesaid shall constitute a separate offense.

SECTION 7. Section 97-19-67, Mississippi Code of 1972, is amended as follows:

97-19-67. (1) Except as may be otherwise provided by subsection (2) of this section, any person violating Section 97-19-55, upon conviction, shall be punished as follows:

(a) For the first offense of violating said section, where the check, draft, order or electronic transfer involved be less than One Hundred Dollars ($100.00), the person committing such offense shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than Twenty-five Dollars ($25.00), nor more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for a term of not less than five (5) days nor more than six (6) months, or by both such fine and imprisonment, in the discretion of the court.

(b) Upon commission of a second offense of violating said section, where the check, draft, order or electronic transfer involved is less than One Hundred Dollars ($100.00), the person committing such offense shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than Fifty Dollars ($50.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a term of not less than thirty (30) days nor more than one (1) year, or by both such fine and imprisonment, in the discretion of the court.

(c) Upon commission of a third or any subsequent offense of violating said section, regardless of the amount of the check, draft, order or electronic transfer involved, and regardless of the amount of the checks, drafts, orders or electronic transfers involved in the prior convictions, the person committing such offense shall be guilty of a felony and, upon conviction, shall be punished by imprisonment in the State Penitentiary for a term of not less than one (1) nor more than five (5) years.

(d) Where the check, draft, order or electronic transfer involved shall be One Hundred Dollars ($100.00) or more, the person committing such offense, whether same be a first or second offense, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or by imprisonment in the State Penitentiary for a term of not more than three (3) years, or by both such fine and imprisonment, in the discretion of the court. Upon conviction of a third or any subsequent offense, the person convicted shall be punished as is provided in the immediately preceding paragraph hereof.

(2) Where the conviction was based on a worthless check, draft, order or electronic transfer given for the purpose of satisfying a preexisting debt or making a payment or payments on a past-due account or accounts, no imprisonment shall be ordered as punishment, but the court may order the convicted person to pay a fine of up to the applicable amounts prescribed in subsection (1)(a)(b) and (d) of this section.

(3) In addition to or in lieu of any penalty imposed under the provisions of subsection (1) or subsection (2) of this section, the court may, in its discretion, order any person convicted of violating Section 97-19-55 to make restitution in accordance with the provisions of Sections 99-37-1 through 99-37-23 to the holder of any check, draft, order or electronic transfer for which payment has been refused.

(4) Upon conviction of any person for a violation of Section 97-19-55, when the prosecution of such person was commenced by the filing of a complaint with the court by the district attorney under the provisions of Section 97-19-79, the court shall, in addition to any other fine, fee, cost or penalty which may be imposed under this section or as otherwise provided by law, and in addition to any order as the court may enter under subsection (3) of this section requiring the offender to pay restitution under Sections 99-37-1 through 99-37-23, impose a fee in the amount up to eighty-five percent (85%) of the face amount of the check, draft, order or electronic transfer for which the offender was convicted of drawing, making, issuing, uttering or delivering in violation of Section 97-19-55.

(5) It shall be the duty of the clerk or judicial officer of the court collecting the fees imposed under subsection (4) of this section to monthly deposit all such fees so collected with the State Treasurer, either directly or by other appropriate procedures, for deposit in the special fund of the State Treasury created under Section 99-19-32, known as the "Criminal Justice Fund."

(6) After the accused has complied with all terms of the statute and the complainant or victim has been paid, the district attorney's check unit may dispose of the accused's file after one (1) year has expired after the last audit.

SECTION 8. Section 97-19-69, Mississippi Code of 1972, is amended as follows:

97-19-69. In the event of the existence of prima facie evidence of fraudulent intent as defined in Section 97-19-57 and the giving of notice under Section 97-19-57, if required, any person, firm or corporation causing the arrest of the drawer of such check, draft, order or electronic transfer shall not be criminally or civilly liable for false arrest or false imprisonment.

SECTION 9. This act shall take effect and be in force from and after July 1, 2011.