What Can I Do About a Bad Check in Illinois?
Full Question:
Answer:
The answer varies by area and facts in each case, such as whether intent to deceive is involved. We suggest contacting the local police and/or attorney general. For example, see:
http://www.ci.st-charles.il.us/departments/Police/FAQs.html
The Kane County State’s Attorney has implemented a Bad Check Restitution Program to assist local merchants and citizens with bad check losses under $5,000. This program is designed to obtain full restitution for the victims without adding to the financial burden of the criminal justice system. Checks ineligible for the Kane County State's Attorney Bad Check Restitution Program may be pursued via small claims court or by a private collection agency. The Victim Hotline is 1-877-841-4266 or call Check Writers at 1-877-841-4752.
A prosecutor may pursue a criminal charge even when the victim does not want the charge to be pursued. Technically speaking, only the prosecutor can decide whether or not the charge should be pursued, not the victim. However, if a victim does not want a charge pursued this will often make the case difficult to prosecute and the prosecutor may take that and other factors into account and decide not to pursue the charge, especially if he/she feels as though he/she will not be able to prove his case. When a victim makes contradictory statements this ordinarily makes it very difficult to prosecute the case because the victim can be impeached. Whether the prosecutor will continue to pursue a charge against the victim's wishes often depends on what evidence of the crime, if any, there is other than the victim's testimony.
The answer will depend in part on whether you were an employee and whether a federal contract was involved. Federal contractors have a responsibility to pay workers in accordance with federal law and the U.S. Department of Labor may enforce actions against employers. If you were an employee, you might try contacting the wage and hours department of the state labor board to inquire about enforcement of violations of payday laws. Otherwise, a breach of contract claim may be filed.
See also:
http://blog.laborlawcenter.com/2007/08/22/california-trucking-company-forks-over-14-million-for-wage-violations/
http://law.freeadvice.com/general_practice/contract_law/contracts_checks_insufficient_funds.htm
The following are Illinois statutes:
Sec. 17-1. Deceptive practices.
(A) Definitions.
As used in this Section:
(i) "Financial institution" means any bank, savings and loan association,
credit union, or other depository of money, or medium of savings and
collective investment.
(ii) An "account holder" is any person having a checking account or
savings account in a financial institution.
(iii) To act with the "intent to defraud" means to act wilfully, and with
the specific intent to deceive or cheat, for the purpose of causing
financial loss to another, or to bring some financial gain to oneself. It
is not necessary to establish that any person was actually defrauded or
deceived.
(B) General Deception.
A person commits a deceptive practice when, with intent to defraud, the
person does any of the following:
(a) He or she causes another, by deception or threat, to execute a
document disposing of property or a document by which a pecuniary
obligation is incurred.
(b) Being an officer, manager or other person participating in the
direction of a financial institution, he or she knowingly receives or
permits the receipt of a deposit or other investment, knowing that the
institution is insolvent.
(c) He or she knowingly makes or directs another to make a false or
deceptive statement addressed to the public for the purpose of promoting
the sale of property or services.
(d) With intent to obtain control over property or to pay for property,
labor or services of another, or in satisfaction of an obligation for
payment of tax under the Retailers' Occupation Tax Act or any other tax due
to the State of Illinois, he or she issues or delivers a check or other
order upon a real or fictitious depository for the payment of money,
knowing that it will not be paid by the depository. Failure to have
sufficient funds or credit with the depository when the check or other
order is issued or delivered, or when such check or other order is
presented for payment and dishonored on each of 2 occasions at least 7 days
apart, is prima facie evidence that the offender knows that it will not be
paid by the depository, and that he or she has the intent to defraud. In
this paragraph (d), "property" includes rental property (real or personal).
(e) He or she issues or delivers a check or other order upon a real or
fictitious depository in an amount exceeding $150 in payment of an amount
owed on any credit transaction for property, labor or services, or in
payment of the entire amount owed on any credit transaction for property,
labor or services, knowing that it will not be paid by the depository, and
thereafter fails to provide funds or credit with the depository in the face
amount of the check or order within 7 days of receiving actual notice from
the depository or payee of the dishonor of the check or order.
Sentence.
A person convicted of a deceptive practice under paragraph (a), (b), (c),
(d), or (e) of this subsection (B), except as otherwise provided by this
Section, is guilty of a Class A misdemeanor.
A person convicted of a deceptive practice in violation of paragraph (d)
a second or subsequent time shall be guilty of a Class 4 felony.
A person convicted of deceptive practices in violation of paragraph (d),
when the value of the property so obtained, in a single transaction, or in
separate transactions within a 90 day period, exceeds $150, shall be guilty
of a Class 4 felony. In the case of a prosecution for separate transactions
totaling more than $150 within a 90 day period, such separate transactions
shall be alleged in a single charge and provided in a single prosecution.
(C) Deception on a Bank or Other Financial Institution.
(1) False Statements.
Any person who, with the intent to defraud, makes or causes to be made
any false statement in writing in order to obtain an account with a bank or
other financial institution, or to obtain credit from a bank or other
financial institution, or to obtain services from a currency exchange,
knowing such writing to be false, and with the intent that it be relied
upon, is guilty of a Class A misdemeanor.
For purposes of this subsection (C), a false statement shall mean any
false statement representing identity, address, or employment, or the
identity, address or employment of any person, firm or corporation.
(2) Possession of Stolen or Fraudulently Obtained Checks.
Any person who possesses, with the intent to obtain access to funds of
another person held in a real or fictitious deposit account at a financial
institution, makes a false statement or a misrepresentation to the
financial institution, or possesses, transfers, negotiates, or presents for
payment a check, draft, or other item purported to direct the financial
institution to withdraw or pay funds out of the account holder's deposit
account with knowledge that such possession, transfer, negotiation, or
presentment is not authorized by the account holder or the issuing
financial institution is guilty of a Class A misdemeanor. A person shall be
deemed to have been authorized to possess, transfer, negotiate, or present
for payment such item if the person was otherwise entitled by law to
withdraw or recover funds from the account in question and followed the
requisite procedures under the law. In the event that the account holder,
upon discovery of the withdrawal or payment, claims that the withdrawal or
payment was not authorized, the financial institution may require the
account holder to submit an affidavit to that effect on a form satisfactory
to the financial institution before the financial institution may be
required to credit the account in an amount equal to the amount or amounts
that were withdrawn or paid without authorization.
Any person who, within any 12 month period, violates this Section with
respect to 3 or more checks or orders for the payment of money at the same
time or consecutively, each the property of a different account holder or
financial institution, is guilty of a Class 4 felony.
(3) Possession of Implements of Check Fraud.
Any person who possesses, with the intent to defraud and without the
authority of the account holder or financial institution, any check
imprinter, signature imprinter, or "certified" stamp is guilty of a Class A
misdemeanor.
A person who within any 12 month period violates this subsection (C) as
to possession of 3 or more such devices at the same time or consecutively,
is guilty of a Class 4 felony.
(4) Possession of Identification Card.
Any person who, with the intent to defraud, possesses any check guarantee
card or key card or identification card for cash dispensing machines
without the authority of the account holder or financial institution is
guilty of a Class A misdemeanor.
A person who, within any 12 month period, violates this Section at the
same time or consecutively with respect to 3 or more cards, each the
property of different account holders, is guilty of a Class 4 felony.
A person convicted under this Section, when the value of property so
obtained, in a single transaction, or in separate transactions within any
90 day period, exceeds $150 shall be guilty of a Class 4 felony.
Sec. 17-lb. State's Attorney's bad check diversion program.
(a) In this Section:
"Offender" means a person charged with, or for whom probable cause exists
to charge the person with, deceptive practices.
"Pretrial diversion" means the decision of a prosecutor to refer an
offender to a diversion program on condition that the criminal charges
against the offender will be dismissed after a specified period of time,
or the case will not be charged, if the offender successfully completes
the program.
"Restitution" means all amounts payable to a victim of deceptive
practices under the bad check diversion program created under this
Section, including the amount of the check and any transaction fees
payable to a victim as set forth in subsection (g) but does not include
amounts recoverable under Section 3-806 of the Uniform Commercial Code
and Section 17-1a of this Code.
(b) A State's Attorney may create within his or her office a bad check
diversion program for offenders who agree to voluntarily participate in
the program instead of undergoing prosecution. The program may be
conducted by the State's Attorney or by a private entity under contract
with the State's Attorney. If the State's Attorney contracts with a
private entity to perform any services in operating the program, the
entity shall operate under the supervision, direction, and control of the
State's Attorney. Any private entity providing services under this
Section is not a "collection agency" as that term is defined under the
Collection Agency Act.
(c) If an offender is referred to the State's Attorney, the State's
Attorney may determine whether the offender is appropriate for acceptance
in the program. The State's Attorney may consider, but shall not be
limited to consideration of, the following factors:
(1) the amount of the check that was drawn or passed;
(2) prior referrals of the offender to the program;
(3) whether other charges of deceptive practices are pending against the
offender;
(4) the evidence presented to the State's Attorney regarding the facts
and circumstances of the incident;
(5) the offender's criminal history; and
(6) the reason the check was dishonored by the financial institution.
(d) The bad check diversion program may require an offender to do one or
more of the following:
(i) pay for, at his or her own expense, and successfully complete an
educational class held by the State's Attorney or a private entity under
contract with the State's Attorney;
(ii) make full restitution for the offense;
(iii) pay a per-check administrative fee as set forth in this Section.
(e) If an offender is diverted to the program, the State's Attorney
shall agree in writing not to prosecute the offender upon the offender's
successful completion of the program conditions. The State's Attorney's
agreement to divert the offender shall specify the offenses that will not
be prosecuted by identifying the checks involved in the transactions.
(f) The State's Attorney, or private entity under contract with the
State's Attorney, may collect a fee from an offender diverted to the
State's Attorney's bad check diversion program. This fee may be deposited
in a bank account maintained by the State's Attorney for the purpose of
depositing fees and paying the expenses of the program or for use in the
enforcement and prosecution of criminal laws. The State's Attorney may
require that the fee be paid directly to a private entity that
administers the program under a contract with the State's Attorney. The
amount of the administrative fees collected by the State's Attorney under
the program may not exceed $35 per check. The county board may, however,
by ordinance, increase the fees allowed by this Section if the increase
is justified by an acceptable cost study showing that the fees allowed by
this Section are not sufficient to cover the cost of providing the
service.
(g)
(1) The private entity shall be required to maintain adequate
general liability insurance of $1,000,000 per occurrence as well as
adequate coverage for potential loss resulting from employee dishonesty.
The State's Attorney may require a surety bond payable to the State's
Attorney if in the State's Attorney's opinion it is determined that the
private entity is not adequately insured or funded.
(2)
(A) Each private entity that has a contract with the State's Attorney
to conduct a bad check diversion program shall at all times maintain a
separate bank account in which all moneys received from the offenders
participating in the program shall be deposited, referred to as a "Trust
Account", except that negotiable instruments received may be forwarded
directly to a victim of the deceptive practice committed by the offender if
that procedure is provided for by a writing executed by the victim. Moneys
received shall be so deposited within 5 business days after posting to the
private entity's books of account. There shall be sufficient funds in the
trust account at all times to pay the victims the amount due them.
(B) The trust account shall be established in a bank, savings and loan
association, or other recognized depository which is federally or State
insured or otherwise secured as defined by rule. If the account is
interest bearing, the private entity shall pay to the victim interest
earned on funds on deposit after the 60th day.
(C) Each private entity shall keep on file the name of the bank,
savings and loan association, or other recognized depository in which
each trust account is maintained, the name of each trust account, and the
names of the persons authorized to withdraw funds from each account. The
private entity, within 30 days of the time of a change of depository or
person authorized to make withdrawal, shall update its files to reflect
that change. An examination and audit of a private entity's trust
accounts may be made by the State's Attorney as the State's Attorney
deems appropriate. A trust account financial report shall be submitted
annually on forms acceptable to the State's Attorney.
(3) The State's Attorney may cancel a contract entered into with a
private entity under this Section for any one or any combination of the
following causes:
(A) Conviction of the private entity or the principals of the private
entity of any crime under the laws of any U.S. jurisdiction which is a
felony, a misdemeanor an essential element of which is dishonesty, or of
any crime which directly relates to the practice of the profession.
(B) A determination that the private entity has engaged in conduct
prohibited in item (4).
(4) The State's Attorney may determine whether the private entity has
engaged in the following prohibited conduct:
(A) Using or threatening to use force or violence to cause physical harm
to an offender, his or her family, or his or her property.
(B) Threatening the seizure, attachment, or sale of an offender's
property where such action can only be taken pursuant to court order
without disclosing that prior court proceedings are required.
(C) Disclosing or threatening to disclose information adversely
affecting an offender's reputation for creditworthiness with knowledge
the information is false.
(D) Initiating or threatening to initiate communication with an
offender's employer unless there has been a default of the payment of the
obligation for at least 30 days and at least 5 days prior written
notice, to the last known address of the offender, of the intention to
communicate with the employer has been given to the employee, except as
expressly permitted by law or court order.
(E) Communicating with the offender or any member of the offender's
family at such a time of day or night and with such frequency as to
constitute harassment of the offender or any member of the offender's
family. For purposes of this clause (E) the following conduct shall
constitute harassment:
(i) Communicating with the offender or any member of his or her family
at any unusual time or place or a time or place known or which should be
known to be inconvenient to the offender. In the absence of knowledge of
circumstances to the contrary, a private entity shall assume that the
convenient time for communicating with a consumer is after 8 o'clock
a.m. and before 9 o'clock p.m. local time at the offender's residence.
(ii) The threat of publication or publication of a list of offenders who
allegedly refuse to pay restitution, except by the State's Attorney.
(iii) The threat of advertisement or advertisement for sale of any
restitution to coerce payment of the restitution.
(iv) Causing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously with intent to annoy, abuse, or
harass any person at the called number.
(v) Using profane, obscene or abusive language in communicating with an
offender, his or her family, or others.
(vi) Disclosing or threatening to disclose information relating to a
offender's case to any other person except the victim and appropriate law
enforcement personnel.
(vii) Disclosing or threatening to disclose information concerning the
alleged criminal act which the private entity knows to be reasonably
disputed by the offender without disclosing the fact that the offender
disputes the accusation.
(viii) Engaging in any conduct which the State's Attorney finds was
intended to cause and did cause mental or physical illness to the
offender or his or her family.
(ix) Attempting or threatening to enforce a right or remedy with
knowledge or reason to know that the right or remedy does not exist.
(x) Except as authorized by the State's Attorney, using any form of
communication which simulates legal or judicial process or which gives
the appearance of being authorized, issued or approved by a governmental
agency or official or by an attorney at law when it is not.
(xi) Using any badge, uniform, or other indicia of any governmental
agency or official, except as authorized by law or by the State's
Attorney.
(xii) Except as authorized by the State's Attorney, conducting business
under any name or in any manner which suggests or implies that the
private entity is bonded if such private entity is or is a branch of or is
affiliated with any governmental agency or court if such private entity
is not.
(xiii) Misrepresenting the amount of the restitution alleged to be owed.
(xiv) Except as authorized by the State's Attorney, representing that an
existing restitution amount may be increased by the addition of attorney's
fees, investigation fees, or any other fees or charges when those fees or
charges may not legally be added to the existing restitution.
(xv) Except as authorized by the State's Attorney, representing that
the private entity is an attorney at law or an agent for an attorney if
the entity is not.
(xvi) Collecting or attempting to collect any interest or other charge
or fee in excess of the actual restitution or claim unless the interest
or other charge or fee is expressly authorized by the State's Attorney,
who shall determine what constitutes a reasonable collection fee.
(xvii) Communicating or threatening to communicate with an offender
when the private entity is informed in writing by an attorney that the
attorney represents the offender concerning the claim, unless authorized
by the attorney. If the attorney fails to respond within a reasonable
period of time, the private entity may communicate with the offender. The
private entity may communicate with the offender when the attorney gives
his consent.
(xviii) Engaging in dishonorable, unethical, or unprofessional conduct of
a character likely to deceive, defraud, or harm the public.
(5) The State's Attorney shall audit the accounts of the bad check
diversion program after notice in writing to the private entity.
(6) Any information obtained by a private entity that has a contract
with the State's Attorney to conduct a bad check diversion program is
confidential information between the State's Attorney and the private
entity and may not be sold or used for any other purpose but may be
shared with other authorized law enforcement agencies as determined by
the State's Attorney.
(h) The State's Attorney, or private entity under contract with the
State's Attorney, shall recover, in addition to the face amount of the
dishonored check or draft, a transaction fee to defray the costs and
expenses incurred by a victim who received a dishonored check that was
made or delivered by the offender. The face amount of the dishonored
check or draft and the transaction fee shall be paid by the State's
Attorney or private entity under contract with the State's Attorney to
the victim as restitution for the offense. The amount of the transaction
fee must not exceed: $25 if the face amount of the check or draft does
not exceed $100; $30 if the face amount of the check or draft is greater
than $100 but does not exceed $250; $35 if the face amount of the check
or draft is greater than $250 but does not exceed $500; $40 if the face
amount of the check or draft is greater than $500 but does not exceed
$1,000; and $50 if the face amount of the check or draft is greater than
$1,000.
(i) The offender, if aggrieved by an action of the private entity
contracted to operate a bad check diversion program, may submit a
grievance to the State's Attorney who may then resolve the grievance. The
private entity must give notice to the offender that the grievance
procedure is available. The grievance procedure shall be established by
the State's Attorney.
