Section 6-08-16.2 - Issuing check without account - Financial liability - Penalty - Exceptions1. As used in this section unless the context otherwise requires: a. "Account" means any account at a bank or depository from which an instrument could legally be paid.b. "Dishonor" is synonymous with "nonpayment".c. "Instrument" means any check, draft, electronic funds transfer authorization, or order for the payment of money.d. "Issues" means draws, utters, electronically authorizes, or delivers.2. A person that, for that person or as agent or representative of another, willfully as defined in section 12.1-02-02 issues any instrument is guilty of a class C felony if that person has been previously convicted of issuing an instrument without an account pursuant to section 6-08-16.1, and at the time of issuing the instrument the drawer does not have an account with the bank or depository on which the instrument is drawn.3. A person that, for that person or an agent or representative of another, willfully as defined in section 12.1-02-02 issues any instrument is guilty of a class C felony if the instrument was for at least one thousand dollars or that person, agent, or representative of another, issues more than one instrument for which the aggregate total of all instruments issued exceeds one thousand dollars, and at the time of issuing the instrument, the drawer does not have an account with the bank or depository on which the instrument is drawn.4. A person that issues an instrument under subsection 2 or 3 is liable for collection fees or costs not in excess of forty dollars per instrument which are recoverable by the holder of the instrument, or the holder's agent or representative. If the state's attorney or holder determines the person identified as the issuer of the instrument did not issue the instrument in violation of this section but instead is the victim of fraud, that state's attorney or holder shall provide the holder or the holder's agent or representative written notice of the fraud and upon receipt of the notice that holder or that holder's agent or representative may not collect fees or costs under this subsection. The holder of the instrument or the holder's agent or representative is entitled to bring a civil action to recover a civil penalty. The civil penalty is payment to the holder of the instrument of the lesser of two hundred dollars or three times the amount of each instrument.5. An agent acting for the receiver of an instrument issued in violation of this section may present the instrument to the state's attorney for prosecution if the holder or the holder's agent or representative mailed a notice under subsection 6. During the first one hundred twenty days after the drawer received notice under this subsection the state's attorney shall accept the instrument presented by the agent. A criminal complaint for violating this section must be executed within one hundred twenty days after the drawer receives notice from the holder of a no-account or closed-account instrument or the holder's agent or representative.6. A notice of dishonor may be mailed by the holder of the instrument upon dishonor or by the holder's agent or representative upon dishonor. Proof of mailing may be made by return receipt or by an affidavit of mailing signed by the individual making the mailing. The notice must be in substantially the following form: Notice of Dishonored Instrument Date ________________________________________________
Name of Issuer ________________________________________ Street Address ________________________________________ City and State _________________________________________ You are according to law notified that an instrument dated ______,
_____________, drawn on the ________________ Bank of _______________ in the amount of _______________ has been returned unpaid with the notation the payment has been refused because (of nonsufficient funds) (the drawer does not have an account). Within ten days from the receipt of this notice, you must pay or tender to ________________________________ (Holder or agent or representative) sufficient moneys to pay such instrument in full and any collection fees or costs not in excess of forty dollars.
The notice may also contain a recital of the penal provisions of this section and the possibility of a civil action to recover any collection fees or costs authorized by this section.
Amended by S.L. 2013, ch. 104 (SB 2251),§ 2, eff. 8/1/2013.Amended by S.L. 2013, ch. 79 (HB 1243),§ 2, eff. 8/1/2013.Amended by S.L. 2011, ch. 77 (SB 2158),§ 2, eff. 8/1/2011.