The issuance of a check on an account that is closed or has insufficient funds may constitute a crime for which the maker of the check may be prosecuted. The issuance of a check that is not honored may also give rise to a civil claim for damages. Your option to proceed will depend on the circumstances in your case.

Whether the issuance of a bad check is a crime will depend on several factors. You should review these factors carefully against the particular facts in your case before applying for a warrant or a citation. The elements of the criminal offense of Deposit Account Fraud (bad check) are contained in O.C.G.A. 16-9-20.

a. Dishonor of the check – the check must be dishonored by the drawee (who the check is made out to) for one of the reasons set forth in the statute.
b. Knowledge by the maker of the check that it would not be honored.
c. Present consideration – the check must have been given for present consideration.

The proper venue for the prosecution of the offense of deposit account fraud is the county in which the check was presented. This is true regardless of where your home office may be located or where the person who tendered the check resides.

The check must be dishonored by the drawee for one of three reasons:

1. No Account
This is based on the status of the account at the time the check was made, drawn, uttered, or delivered, not at the time it was presented to the bank for payment.

2. Account Closed.
This is based on the status of the account at the time the check was made, drawn, uttered, or delivered, not at the time it was presented to the bank for payment.

3. Lack of Funds
The check must have been deposited or presented for payment within 30 days of the date delivered, and the accused has failed to make payment of the check and a service charge within 10 days after receiving written notice that the check has been dishonored.

A copy of the notice that will satisfy this requirement may be found in the forms section of this website. There are many other reasons why a check may not be paid upon presentation. However, only the reasons set forth in the statute will support a criminal prosecution. If the check has been dishonored for another reason you should review the availability of civil remedies for bad checks.

The check must have been tendered for either wages or present consideration. The offense of deposit account fraud is analogous to a theft of the item or services received through the fraudulent presentation of worthless paper when immediate payment is expected. Anything that temporarily separates the exchange will negate the concept of present consideration.
 
Present Consideration Includes:
a. Goods or services tendered for check.
b. Rent that is presently or past due.
c. Child support, pursuant to court order or written agreement.
d. State taxes, whether or not past due.
e. Simultaneous agreement for the extension of additional credit where additional credit is being denied.
 
Present Consideration Does Not Include:
a. Post-dated check.
b. Payment on an installment account or on an open account for goods/services previously received.
c. Request by the defendant to the victim to hold the check.

Be sure employees have followed all items on this checklist:

1. Keep a permanent record of home address of the clerk who actually received the check.
This person will be a critical witness who must identify the person who made the check if the case goes to trial.
 
2. Deposit all checks within 30 days of receipt.
 
3. Within 90 days of receipt of check, mail certified demand letter to the address given by the maker of the check.
Give the maker of the check at least 10 days and 3 days for mailing before prosecuting criminally. Try to telephone the accused and keep a record of your efforts.
 
4. Make sure the check is actually one for present consideration.
 
5. Ensure further legal counsel is not needed.
Unusual situations such as post-dating, stop payment, agreement to hold check, forgery, often prevent the collection from proceeding under criminal prosecution. If this is the case, you may wish to seek legal counsel for further information.
 
6. If management has received partial payment, proceed to civil remedy only.
 
7. Make photocopies of check (front and back), the 10 day demand letter, the certified mail notice, and/or the envelope mailed to the maker of the check if returned unclaimed.
 
8. Proceed criminally for all checks that meet checklist in the county where the check was passed.
 
9. Proceed civilly (in Magistrate Court if the amount is $15,000.00 or less) against all other checks in the county where the defendant lives.
 
10. Refer all persons to the Magistrate Court who want to payoff bad check charges after criminal prosecution begins.
 
11. Be prepared to pay a filing fee.
Please see the list of filing fees for the fee for this service.

Bring with you the original check and a copy of the check (front and back), a copy of the ten day letter, the certified mail receipt or returned letter if unclaimed, and the filing fee.

Depending on the particular check, you will be asked to fill out an application for an arrest warrant. These forms are available in the Magistrate Court Clerk’s office.

When a citation is issued, the accused maker of the check will be notified that prosecution has commenced. The accused can dispose of the case by paying the check, service charge, warrant application fee and a fine. The accused can also plead not guilty and request a trial of the case. If the accused does not dispose of the case or appear in court by the date specified on the citation, an arrest warrant may be issued. Only misdemeanor cases may be prosecuted by citation. Currently, the Evans County Magistrate Court does not use the citation process.

A bad check arrest warrant is an order of the court directing any duly authorized law enforcement official to arrest the person named in the warrant for the offense. The accused will be arrested and, in most instances, allowed to post bond to secure their appearance at trial. All felony bad checks are prosecuted by warrant. A felony bad check warrant is when a check is in the amount in excess of $1500.00, or where the check is drawn on an out of state bank, regardless of the amount of the check. Also, warrants are issued in the following situations: the accused has failed to respond to a citation or the accused could not be located so that a citation could be served. Any bad checks under $1500.00 dollars are prosecuted as misdemeanors.

Cases prosecuted by citation are tried in the Magistrate Court, unless the accused demands a jury trial. In that event, the case is transferred to the State Court for trial. Cases prosecuted by warrant are tried in the Magistrate Court if the offense is a misdemeanor or in the Superior Court if the offense is a felony.

The Magistrate Court of Evans County is also known as small claims court. A claim can be filed for $15,000.00 or less. If your claim exceeds $15,000.00, the Magistrate Court doesn’t have jurisdiction to hear the case but it can be filed in the State Court or the Superior Court. Not only does this $15,000.00 limit apply to a claim filed by the plaintiff, it also applies to any counterclaim filed by the defendant which exceeds $15,000.00.

The party who files a civil suit is referred to as the “Plaintiff” and the party who is sued is referred to as the “Defendant”. The claim form should designate the proper plaintiff(s) and defendant(s). Failure to name the proper parties could result in an unsatisfactory judgment.

A claim that is against an individual should be filed in the County of the person’s legal residence. When a claim is against a business, the type of business determines where the claim should be filed. If the business is a sole proprietorship, the suit should be filed in the county in which the owner of the business resides. For a partnership, the suit should be filed in the county in which at least one of the owners resides. For a corporation, the suit should be filed in the county where the corporation is doing business or in the county that has designated its registered agent for service with the Secretary of State’s office. If the suit is against multiple defendants who live in different counties, you can file in either one of the counties that they reside in.

If you file a claim in the Magistrate Court of Evans County and it is later determined that the defendant resides in a different county, you can submit a request to have the case transferred to the proper county. You may be required to pay an additional service fee.

In order to file a claim, you must fill out a Statement of Claim form and a Sheriff’s Entry of Service form. If there are two or more defendants to be served at different addresses, there is an additional service fee required per address. Please see the list of filing fees for the fee for this service.

You must list the plaintiff’s complete name, address including zip code, and phone number. You also have to list the defendant’s correct name and address including the zip code. If the defendant is a company, have their correct legal business name. Next you mark the appropriate box for the type of claim you are filing, suit on a note, suit on an account, damages, or other. You then are required to give a brief description of your claim and the amount you are filing the suit for. You must sign the form in front on a notary public or a deputy clerk in the Magistrate Court. You will be required to show identification such as a driver’s license.

The Sheriff’s Department or Magistrate Court Constable will serve the civil suit to the defendant at the address you provide to the Court. If the Sheriff’s Department is unable to locate the defendant at the address provided, you can provide the Court with a new address along with an additional service fee. You can also contact a private process server who has been approved by the Court to serve the suit.

The defendant has thirty (30) days from the date of service to file an answer with the Court. If the defendant fails to file an answer within 30 days, they will be in default. The defendant then has an additional fifteen (15) days to file an answer by paying all accrued court cost to open the default.

After the defendant has filed an answer, the Court will schedule the case for a hearing and notify all parties by regular U.S. Mail.

When filing your answer with the Court, you can file a counterclaim. A counterclaim is essentially a Statement of Claim filed by the defendant against the plaintiff. If the counterclaim exceeds the jurisdictional limits of the Magistrate Court, the case will be transferred to a court that has proper jurisdiction. Usually the entire case will be transferred. However, there may be some cases where the plaintiff’s claim will remain in the Magistrate Court and the defendant’s counterclaim will be transferred separately.

No. The plaintiff pays court costs when the case is filed. However, the defendant may be ordered to pay these costs to the plaintiff if the plaintiff wins their case.

You should bring all persons who have direct knowledge of the facts relate to your case and any documents, photographs, repair bills, receipts, or other physical evidence which you feel would help prove your case.

No. A witness who has direct knowledge of the facts to which they testify must present all testimony in person. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court.

You can compel a witness to appear in court by serving a subpoena on them. You can obtain a subpoena from the Magistrate Court. You must have the witness’ name and address for service. The subpoena will be served to the witness by you or you can pay the Sheriff’s Department to serve it.

Yes. There is a different type of subpoena for documents known as a “subpoena duces tecum”. The subpoena should be served on the custodian of the documents being subpoenaed. You can obtain the subpoena from the Magistrate Court.Please see the list of filing fees for the fee for this service.

After all parties have presented their case in Court, the Judge will usually decide the case and make an announcement of the decision from the bench. If the decision cannot be immediately made, the Judge will hold the case under advisement and when the decision is made, a copy of the decision will be mailed to the parties by the Court.

If the defendant fails to file an answer within forty-five (45) days of service, the plaintiff can request a default judgment. If the claim is for liquidated damages and proper documentation is submitted to the court which proves the claim, a default judgment may be issued. If the claim is for unliquidated damages, the case will be scheduled for a default hearing.

There are numerous steps that can be taken to enforce a judgment such as a bank garnishment, a continuing garnishment of wages, interrogatories, writ of fieri facias and levy.

In the Magistrate Court individuals are allowed to file an application for a criminal warrant as long as they have a police report. The case would be scheduled for a pre-warrant hearing and notices are mailed out to all parties. At the pre-warrant hearing, the Judge will hear testimony from the parties and if sufficient evidence is given, an arrest warrant may be issued at that time.

You must have the correct name and mailing address for the defendant. You are also required to have a police report. Please see the list of filing fees for the fee for this service.

A good behavior warrant is an application to keep the peace. If someone is threatening or harassing you and you have given them notice not to have any contact with you but they continue to do so, you can file a good behavior warrant.

You must have the correct name and home address for the defendant. Please see the list of filing fees for the fee for this service.

Garnishment proceedings may be filed immediately if the judgment issued is a default judgment. Otherwise, a period of 30 days must lapse before a garnishment can be filed. The correct forms for filing a garnishment can be obtained from the Magistrate Court Clerk’s Office.

A copy of the judgment must accompany the garnishment upon filing if the judgment was obtained from another court. You also need:

For a Continuing (Wage) Garnishment:

– Affidavit and Summons of Continuing Garnishment

– Answer of Continuing Garnishment

– Sheriff’s Entry of Service form for the garnishee

– Sheriff’s Entry of Service form for the defendant

For a Regular (Bank) Garnishment:

– Affidavit and Summons of Garnishment

– Answer of Garnishment

– Sheriff’s Entry of Service form for the garnishee

– Sheriff’s Entry of Service form for the defendant

A continuing (wage) garnishment is good for 1095 days from the date of service by the Sheriff’s Department. A bank garnishment is good for 15 days from the date of service by the Sheriff’s Department.

A garnishee must file an answer with the court no later than 45 days, but not sooner than 30 days from the date of service by the Sheriff’s Department.

If the garnishee fails to file an answer by the 45th day from the date of service, they still have an additional 15 days in which they can file an answer but they are required to pay court cost in order to open the default. If the garnishee fails to file an answer by the 60th day from the date of service, the plaintiff can request a judgment against the garnishee. The plaintiff can then take steps to collect the judgment from the garnishee.

The principal amount on the judgment may not exceed $15,000.00 when filing a garnishment with the Magistrate Court.

The plaintiff’s traverse states that the garnishee’s answer is untrue or legally insufficient. The plaintiff may file a traverse no later than 15 days after the answer of the garnishee is filed with the court. The defendant’s traverse states that the affidavit of garnishment is untrue or legally insufficient. The defendant may file a traverse at any time before a judgment is entered on the garnishee’s answer. The garnishee must withhold funds until the judge rules on the traverse. The funds are held in the registry of the court until the traverse is ruled on. A traverse must be scheduled for a hearing within 10 days of the filing of the traverse.

There must be a landlord/tenant relationship between the parties. The tenant must be either a tenant holding over, a tenant at will, a tenant at sufferance, or having failed to pay rent as it becomes due. The landlord must have made a demand for possession of the premises prior to commencement of the proceedings. Please see the list of filing fees for the fee for this service.

A dispossessory warrant should be filed in the county where the rental property is located.

Personal service on the tenant of the dispossessory warrant must be attempted. In the event the sheriff cannot serve the tenant personally, the sheriff may serve the dispossessory warrant sui juris, that is, to any person residing at the premises of suitable age and discretion. If the sheriff is unable to obtain personal or sui juris service of the dispossessory warrant, it may be delivered by tack and mail, that is, posted on the door of the premises. On the same day of posting, the sheriff must mail a copy of the dispossessory warrant to the tenant at the tenant’s last known address.

Upon service of a dispossessory warrant, the tenant has seven days to file an answer with the Magistrate Court. Failure to file an answer within seven days of service of the dispossessory warrant may result in a writ of possession being issued against the tenant.

If the tenant fails to file an answer with the Magistrate Court within 7 days from service of a dispossessory warrant, the landlord may request a writ of possession by paying the sheriff’s service fee to the Magistrate Court. After the Judge has signed the writ of possession, the landlord may contact the Sheriff’s Office to set up a time for the eviction.

When an answer is filed, a court date is given for a time within the next 14 days. The tenant will be given a court date at the time the answer is filed. The notice of the court date, along with a copy of the tenant’s answer, will be mailed to the landlord by regular mail.

When the last day to file an answer falls on a weekend or a legal holiday, the answer may be filed with the Magistrate Court by close of the next business day.

No. A landlord may legally remove a tenant and the tenant’s property from rented premises only under the dispossessory procedure. If a landlord uses self-help to evict a tenant without a dispossessory warrant, it is a tort for which the tenant may recover damages in a civil action, and a landlord who cuts off utilities may be subject to misdemeanor prosecution under OCGA 44-7-14.1.

Continuing (Wage) Garnishment
A continuing garnishment is a type of garnishment used when the judgment debtor is a wage earner. The amount deducted is based on the defendant’s net wages. The continuing garnishment lasts for a total of 1095 days from the date of service or until the judgment amount is collected, whichever event shall first occur. If there is still a balance due at the end of the 1095 days, the plaintiff can file a new continuing garnishment. A continuing garnishment is filed in the county where the garnishee is located. Please see the list of filing fees for the fee for this service.

Bank Garnishment
A garnishment is filed when you are trying to collect the judgment amount from the defendant’s bank account, credit union, or from a general contractor. It is good for a total of 15 days from the date of service. It should be filed in the county where the garnishee is located. Please see the list of filing fees for the fee for this service.

Interrogatories
The purpose of the post judgment interrogatories is to ascertain what assets, if any, the judgment debtor owns to satisfy the judgment. They are sent to the defendant by certified mail. The defendant has 30 days from receipt of the interrogatories to file an answer. If the interrogatories are not answered within 30 days, the plaintiff can file a request for a show cause hearing. Please see the list of filing fees for the fee for this service.

Writ of Fieri Facias
A writ of fieri facias (usually called a fi.fa and pronounced “fi.fay”) is a document that is issued by the Magistrate Court Clerk’s office for the purpose of recording a lien on the judgment debtor’s property. After the fi.fa has been recorded in the Magistrate Court, it is sent to the Superior Court so that it can be recorded on the General Execution Docket. A fi.fa is also the legal instrument by which the sheriff of the county may seize the assets of a judgment debtor by way of a levy. After a fi.fa has been paid and satisfied, it is the plaintiff’s responsibility to file a cancellation of the fi.fa. Please see the list of filing fees for the fee for this service.