RETAILERS PROCEDURES FOR CRIMINAL PROSECUTION OF BAD CHECKS

Our Court handles hundreds of bad check cases each and every year. Bad checks cost local merchants hundreds of thousands of dollars. There are both civil and criminal remedies available to a person or business that has received a bad check. The following materials are intended to assist you in determining whether to proceed civilly or criminally.

Both the civil and criminal remedies are provided by statute and must be strictly complied with in every instance. There is nothing more frustrating for the Court than having to deny a person or business a remedy to which they should be entitled because of failure to follow statutory procedures.

In criminal cases, failure to comply with any of the statutory procedures requires us, as judicial officers, to deny the warrant. We do not want to see potential violators escape due to a failure to meet such guidelines. If you will kindly follow the format set forth in the Code, there should be no problem meeting the bad check criteria.

The Back Check mechanism will allow this Court, and the Sheriff's Department to help you protect your rights and collect the sums of money that relate to criminal bad checks.

However, this is a criminal proceeding and you have the burden of proof, beyond a reasonable doubt, to make out your case.

The Code Section (s) present the mechanism (s) for you to follow to make out your case to meet that burden.

I hope this information will be of assistance to you. We fully realize the seriousness of this problem, and we are hopeful that this format will assist you in properly presenting your case for criminal prosecution.

In the event, however, for one reason or another there is a failure to set out sufficient grounds for a criminal prosecution, please bear in mind that you may always file a civil suit against the maker of the check for the dollar amount due you, plus service charges and court costs. Please see attachment for damages for writing bad checks.


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FREQUENTLY ASKED QUESTIONS - BAD CHECKS

1. I HAVE RECEIVED A BAD CHECK, WHAT CAN I DO?

The issuance of a check on an account which 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 which is not honored may also give rise to a civil claim for damages. Which way you proceed in your case will depend on the circumstances in your case.

CRIMINAL PROSECUTION OF BAD CHECK VIOLATIONS (DEPOSIT ACCOUNT FRAUD)

2. CAN I PURSUE CRIMINAL PROSECUTION OF A BAD CHECK?

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.

3. WHAT ARE THE ELEMENTS OF THE OFFENSE OF DEPOSIT ACCOUNT FRAUD?

A. Dishonor of the Check - the check must be dishonored by the drawee 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.

4. WHERE SHOULD THE OFFENSE OF DEPOSIT ACCOUNT FRAUD BE PROSECUTED?

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.

5. WHAT REASONS FOR DISHONOR OF THE CHECK WILL SUPPORT A CRIMINAL PROSECUTION?

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

A. No account / 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.

B. Lack of funds - the check must have been deposited or presented for payment within thirty (30) days of the date of delivered, and the accused has failed to make payment of the check and a service charge within ten (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 these materials.

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 contained in this file.

6. WHAT IS MEANT BY PRESENT CONSIDERATION?

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 temporally separates the exchange will negate the concept of present consideration.

Present consideration includes:

A. Goods or services tendered for check.

B. Rent which is past due or presently 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.

F. A written waiver of mechanic's or materialmen's lien rights.

Present consideration does not include:

A. Postdated check.

B. Payment on an installment account or on an open account for goods/services previously received.

C. Request by Defendant to Victim to hold check, expects to deposit soon to cover balance.

7. WHAT DEFENSES MAY BE RAISED TO BAD CHECK PROSECUTION?

A. Postdated check - a check with a date after the date on which the check was presented is considered a postdated check and may not be prosecuted criminally. The postdating of the check creates an extension of credit, even if only for a day, and converts the case to a bad debt situation.

B. Stopped payment on a check - a check which was dishonored because payment was stopped, and not because of insufficient funds, may not be prosecuted criminally.

C. Payment of antecedent debt - a check which represents payment of an antecedent debt (e.g. - repayment of a loan or payment on an account) may not be prosecuted criminally.

D. Statement by the maker of the check at the time of tender that he has insufficient money in bank to cover the check, though he expects to have the money in the bank by the time the check is presented. In effect, the payee has agreed to extend credit and there is no present consideration.

E. Prior dealings of the parties.

F. Insanity:

i. Inability to distinguish right from wrong

ii. Intoxication

a. must be involuntary

b. voluntary intoxication is no defense

G. Forgery - a check which is forged (made by someone other than the account holder and without the account holder's consent) may not be prosecuted as a bad check. It therefore vital that the payee confirm the identity of the maker of the check at the time the check is presented.

H. Lack of knowledge that check would not be honored (for example, the maker of the check did not know that someone else had withdrawn funds from the account); and

I. Good character of defendant.

8. WHAT STEPS SHOULD BE TAKEN TO INSURE A BAD CHECK CAN BE COLLECTED?

A. Be sure clerks have followed all items on this checklist.

B. Keep permanent record of home address of clerk who actually received check. This person will be an absolutely critical witness who must identify the person who made the check if the case goes to trial.

C. Deposit all checks within thirty (30) day of receipt.

D. Within ninety (90) days of receipt of check, mail certified demand letter to address given by maker of check. Give maker of check at least ten (10) days and three (3) for mailing before prosecuting criminally. You need not wait for actual receipt of notice. Try to telephone accused and keep record of your efforts.

E. Is this check actually one for present consideration?

F. Are there any defenses, including, but not limited to: postdating, stop payment, payment antecedent debt, prior dealings, agreement to hold check, forgery, refer to maker?

G. Has management received part payment? If so, proceed civil remedy only.

H. Make photocopies of check (front and back), ten (10) day demand letter, certified mail notice, and/or envelope mailed to maker if return unclaimed.

I. Proceed criminally for all checks that meet checklist in the county where the check was passed.

J. Proceed civilly against all other checks. (Magistrate Court, if $15,000.00 or less) in the county where the Defendant lives.

K. Refer all persons who want to payoff bad check after criminal prosecution begun to Magistrate Court (706)864-7760.

L. Filing fee $10.00. Court fees and fines - $50 and up.

9. WHAT INFORMATION SHOULD I BRING TO COURT TO START PROSECUTION?

You should bring with you the original check, a copy of the check (front and back), the certified mail receipt or returned letter if unclaimed, and any notes you have kept related to your efforts to collect the check.

10. ARE THERE FORMS THAT I MUST FILL OUT?

Depending on the particular check, you will be asked to fill out an application for either an arrest warrant or a citation. These forms are available in our magistrate's court office.

11. WHAT IS A BAD CHECK ARREST WARRANT?

An 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 charged (in this case the offense of Deposit Account Fraud). The accused will be arrested and, in most instances, allowed to post bond to secure the accused's appearance at trial.

14. WHAT CASES ARE PROSECUTED BY WARRANT?

All felony and misdemeanor cases are prosecuted by warrant. The offense of Deposit Account Fraud is a felony where the check is for an amount in excess of five hundred dollars ($500.00) or where the check is drawn on an out of state bank, regardless of the amount of the check.

15. WHERE ARE DEPOSIT ACCOUNT FRAUD CASES TRIED?

Cases prosecuted by warrants are tried in the Magistrate Court, unless the warrant is a felony warrant. In that event, the case is transferred to the Superior 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 case is a felony.

16. WHAT IS THE FORM OF THE NOTICE THAT MUST BE SENT?



The form of the notice should be as set forth as follows:

Date: ______________________________________

To: ________________________________________

Address: ___________________________________

City: _______________________________ State: _____ Zip: ________

You are hereby notified that the following instrument(s):

Number Date Amount Name of Bank
______ ______ ________ __________________________
______ ______ ________ __________________________
______ ______ ________ __________________________
______ ______ ________ __________________________
______ ______ ________ __________________________

drawn upon __________ and payable to __________, (has) (have) been
dishonored. Pursuant to Georgia law, you have ten days from receipt
of this notice to tender payment of the total amount of the
instrument(s) plus the applicable service charge(s) of $______, the
total amount due being ________ dollars and ____ cents. Unless this
amount is paid in full within the specified time above, a
presumption in law arises that you delivered the instrument(s) with
the intent to defraud and the dishonored instrument(s) and all
other available information relating to this incident may be
submitted to the magistrate for the issuance of a criminal warrant
or citation or to the district attorney or solicitor for criminal
prosecution.

__________________________________________________

Name of Sender: __________________________________

Address: _________________________________________

City: ______________________________ State: _____ Zip: _________

Telephone: _______________________________________

17. WHAT IS THE DEPOSIT ACCOUNT FRAUD (BAD CHECK) STATUTE?

O.C.G.A. 16-9-20 - Deposit Account Fraud.

(a) A person commits the offense of deposit account fraud when
such person makes, draws, utters, executes, or delivers an
instrument for the payment of money on any bank or other depository
in exchange for a present consideration or wages, knowing that it
will not be honored by the drawee. For the purposes of this Code
section, it is prima-facie evidence that the accused knew that the
instrument would not be honored if:
(1) The accused had no account with the drawee at the time
the instrument was made, drawn, uttered, or delivered;
(2) Payment was refused by the drawee for lack of funds upon
presentation within 30 days after delivery and the accused or
someone for him or her shall not have tendered the holder thereof
the amount due thereon, together with a service charge, within ten
days after receiving written notice that payment was refused upon
such instrument. For purposes of this paragraph:
(A) Notice mailed by certified or registered mail evidenced
by return receipt to the person at the address printed on the
instrument or given at the time of issuance shall be deemed
sufficient and equivalent to notice having been received as of the
date on the return receipt by the person making, drawing, uttering,
executing, or delivering the instrument. A single notice as
provided in subparagraph (B) of this paragraph shall be sufficient
to cover all instruments on which payment was refused and which
were delivered within a ten-day period by the accused to a single
entity, provided that the form of notice lists and identifies each
instrument; and
(B) The form of notice shall be substantially as follows:

"You are hereby notified that the following instrument(s)


Name
of
Number Date Amount Bank
______ ______ ________ __________
______ ______ ________ __________
______ ______ ________ __________
______ ______ ________ __________
______ ______ ________ __________

drawn upon __________ and payable to __________, (has) (have) been
dishonored. Pursuant to Georgia law, you have ten days from receipt
of this notice to tender payment of the total amount of the
instrument(s) plus the applicable service charge(s) of $______, the
total amount due being ________ dollars and ____ cents. Unless this
amount is paid in full within the specified time above, a
presumption in law arises that you delivered the instrument(s) with
the intent to defraud and the dishonored instrument(s) and all
other available information relating to this incident may be
submitted to the magistrate for the issuance of a criminal warrant
or citation or to the district attorney or solicitor for criminal
prosecution."; or
(3) Notice mailed by certified or registered mail is returned
undelivered to the sender when such notice was mailed within 90
days of dishonor to the person at the address printed on the
instrument or given by the accused at the time of issuance of the
instrument.
(b) (1) Except as provided in paragraphs (2) and (3) of this
subsection and subsection (c) of this Code section, a person
convicted of the offense of deposit account fraud shall be guilty
of a misdemeanor and, upon conviction thereof, shall be punished as
follows:
(A) When the instrument is for less than $100.00, a fine of
not more than $500.00 or imprisonment not to exceed 12 months, or
both;
(B) When the instrument is for $100.00 or more but less
than $300.00, a fine of not more than $1,000.00 or imprisonment not
to exceed 12 months, or both; or
(C) When more than one instrument is involved and such
instruments were drawn within 90 days of one another and each is in
an amount less than $100.00, the amounts of such separate
instruments may be added together to arrive at and be punishable
under subparagraph (B) of this paragraph.
(2) Except as provided in paragraph (3) of this subsection
and subsection (c) of this Code section, a person convicted of the
offense of deposit account fraud, when the instrument is for an
amount of not less than $300.00 nor more than $499.99, shall be
guilty of a misdemeanor of a high and aggravated nature. When more
than one instrument is involved and such instruments were given to
the same entity within a 15 day period and the cumulative total of
such instruments is not less than $300.00 nor more than $499.99,
the person drawing and giving such instruments shall upon
conviction be guilty of a misdemeanor of a high and aggravated
nature.
(3) Except as provided in subsection (c) of this Code
section, a person convicted of the offense of deposit account
fraud, when the instrument is for $500.00 or more, shall be guilty
of a felony and, upon conviction thereof, shall be punished by a
fine of not less than $500.00 nor more than $5,000.00 or by
imprisonment for not more than three years, or both.
(4) Upon conviction of a first or any subsequent offense
under this subsection or subsection (c) of this Code section, in
addition to any other punishment provided by this Code section, the
defendant shall be required to make restitution of the amount of
the instrument, together with all costs of bringing a complaint
under this Code section. Costs shall be determined by the court
from competent evidence of costs provided by the party causing the
criminal warrant or citation to issue; provided, however, that the
minimum costs shall not be less than $25.00. Restitution may be
made while the defendant is serving a probated or suspended
sentence.
(c) A person who commits the offense of deposit account fraud
by the making, drawing, uttering, executing, or delivering of an
instrument on a bank of another state shall be guilty of a felony
and, upon conviction thereof, shall be punished by imprisonment for
not less than one nor more than five years or by a fine in an
amount of up to $1,000.00, or both.
(d) The prosecuting authority of the court with jurisdiction
over a violation of subsection (c) of this Code section may seek
extradition for criminal prosecution of any person not within this
state who flees the state to avoid prosecution under this Code
section.
(e) In any prosecution or action under this Code section, an
instrument for which the information required in this subsection is
available at the time of issuance shall constitute prima-facie
evidence of the identity of the party issuing or executing the
instrument and that the person was a party authorized to draw upon
the named account. To establish this prima-facie evidence, the
following information regarding the identity of the party
presenting the instrument shall be obtained by the party receiving
such instrument: the full name, residence address, and home phone
number.
(1) Such information may be provided by either of two
methods:
(A) The information may be recorded upon the instrument
itself; or
(B) The number of a check-cashing identification card
issued by the receiving party may be recorded on the instrument.
The check-cashing identification card shall be issued only after
the information required in this subsection has been placed on file
by the receiving party.
(2) In addition to the information required in this
subsection, the party receiving an instrument shall witness the
signature or endorsement of the party presenting such instrument
and as evidence of such the receiving party shall initial the
instrument.
(f) As used in this Code section, the term:
(1) "Bank" shall include a financial institution as defined
in paragraph (21) of Code Section 7-1-4.
(2) "Conviction" shall include the entering of a guilty plea,
the entering of a plea of nolo contendere, or the forfeiting of
bail.
(3) "Financial institution" shall have the same meaning as
defined in paragraph (21) of Code Section 7-1-4.
(4) "Instrument" means a check, draft, debit card sales
draft, or order for the payment of money.
(5) "Present consideration" shall include without limitation:

(A) An obligation or debt of rent which is past due or
presently due;
(B) An obligation or debt of state taxes which is past due
or presently due;
(C) An obligation or debt which is past due or presently
due for child support when made to the custodian of a minor child
for the support of such minor child and which is given pursuant to
an order of court or written agreement signed by the person making
the payment;
(D) A simultaneous agreement for the extension of
additional credit where additional credit is being denied; and
(E) A written waiver of mechanic's or materialmen's lien
rights.
(6) "State taxes" shall include payments made to the Georgia
Department of Labor as required by Chapter 8 of Title 34.
(g) This Code section shall in no way affect the authority of
a sentencing judge to provide for a sentence to be served on
weekends or during the nonworking hours of the defendant as
provided in Code Section 17-10-3.
(h) (1) Any party holding a worthless instrument and giving
notice in substantially similar form to that provided in
subparagraph (a)(2)(B) of this Code section shall be immune from
civil liability for the giving of such notice and for proceeding as
required under the forms of such notice; provided, however, that,
if any person shall be arrested or prosecuted for violation of this
Code section and payment of any instrument shall have been refused
because the maker or drawer had no account with the bank or other
depository on which such instrument was drawn, the one causing the
arrest or prosecution shall be deemed to have acted with reasonable
or probable cause even though he, she, or it has not mailed the
written notice or waited for the ten-day period to elapse. In any
civil action for damages which may be brought by the person who
made, drew, uttered, executed, or delivered such instrument, no
evidence of statements or representations as to the status of the
instrument involved or of any collateral agreement with reference
to the instrument shall be admissible unless such statements,
representations, or collateral agreement shall be written
simultaneously with or upon the instrument at the time it is
delivered by the maker thereof.
(2) Except as otherwise provided by law, any party who holds
a worthless instrument, who complies with the requirements of
subsection (a) of this Code section, and who causes a criminal
warrant or citation to be issued shall not forfeit his or her right
to continue or pursue civil remedies authorized by law for the
collection of the worthless instrument. It shall be deemed
conclusive evidence that any action is brought upon probable cause
and without malice where such party holding a worthless instrument
has complied with the provisions of subsection (a) of this Code
section regardless of whether the criminal charges are dismissed by
a court due to payment in full of the face value of the instrument
and applicable service charges subsequent to the date that
affidavit for the warrant or citation is made. In any civil action
for damages which may be brought by the person who made, drew,
uttered, executed, or delivered such instrument, no evidence of
statements or representations as to the status of the instrument
involved or of any collateral agreement with reference to the
instrument shall be admissible unless such statements,
representations, or collateral agreement shall be written
simultaneously with or upon the instrument at the time it is
delivered by the maker thereof.
(i) Notwithstanding paragraph (2) of subsection (a) of this
Code section or any other law on usury, charges, or fees on loans
or credit extensions, any lender of money or extender of other
credit who receives an instrument drawn on a bank or other
depository institution given by any person in full or partial
repayment of a loan, installment payment, or other extension of
credit may, if such instrument is not paid or is dishonored by such
institution, charge and collect from the borrower or person to whom
the credit was extended a bad instrument charge. This charge shall
not be deemed interest or a finance or other charge made as an
incident to or as a condition to the granting of the loan or other
extension of credit and shall not be included in determining the
limit on charges which may be made in connection with the loan or
extension of credit or any other law of this state.
(j) For purposes of this Code section, no service charge or
bad instrument charge shall exceed $25.00 or 5 percent of the face
amount of the instrument, whichever is greater.
(k) An action under this Code section may be prosecuted by the
party initially receiving a worthless instrument or by any
subsequent holder in due course of any such worthless instrument.

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CIVIL BAD CHECK COLLECTION PROCEDURES

18. WHAT IF A CRIMINAL PROSECUTION CANNOT BE MADE ON A BAD CHECK I HAVE RECEIVED?

You may still be able to collect the check, which is a contractual promise by the maker of the instrument that it may be presented for cash at the maker's bank for cash on demand.

19. WHEN CAN I PROCEED TO COLLECT DAMAGES IN A CIVIL CASE?

If you have received any check for which payment was refused for either lack of funds or no account, you may sue the maker of the check for the amount of the check and, in some instances, additional damages. Civil damages for writing bad checks are provided for and fully set forth in O.C.G.A. 13-6-15.

20. WHAT DAMAGES CAN I RECOVER?

You may be able to collect the amount of the check, plus damages of twice the amount of the check, but in no case more than $500.00, plus court costs.

21. HOW CAN I RECOVER ADDITIONAL DAMAGES?

First, you must attempt to negotiate the check. After you have received notice that the check will not be paid, you must then make a written demand upon the maker of the check for payment in cash of the amount of the check plus a service charge of 5% or $25.00, whichever is greater. The notice must be mailed to the maker of the check by certified or mail.

If the maker of the check does not tender to you the amount of the check plus the service charge within ten days of receipt of the letter, you may make a claim for the additional statutory damages set forth above.

22. WHAT SHOULD MY LETTER SAY?

The statute sets forth a form letter that you may use. If you use another letter, it must substantially comply with the statutory form as set forth below:


Date: ______________________________________

To: ________________________________________

Address: ___________________________________

City: _______________________________ State: _____ Zip: ________

You are hereby notified that a check or instrument numbered
________, issued by you on ____________ (date), drawn upon
____________ (name of bank), and payable to ____________, has been
dishonored. Pursuant to Georgia law, you have ten days from receipt
of this notice to tender payment of the full amount of the check or
instrument plus a service charge of $25.00 or 5 percent of the face
amount of the check or instrument, whichever is greater, the total
amount due being $ ________. Unless this amount is paid in full
within the ten-day period, the holder of the check or instrument
may file a civil suit against you for two times the amount of the
check or instrument, but in no case more than $500.00, in addition
to the payment of the check or instrument plus any court costs
incurred by the payee in taking the action.

_________________________________________________

Name of Sender: __________________________________

Address: _________________________________________

City: ______________________________ State: _____ Zip: _________

Telephone: _______________________________________

24. WHAT IF I DON'T GET THE MONEY AFTER SENDING THE LETTER?

The maker of the check has ten days from receipt of the letter to tender payment, in cash, of the amount of the check plus service charges. Failure of the maker of the check to pay the above sum will entitle you to proceed with an action for statutory damages.

21. WHO DO I SUE?

You should sue the maker of the check. This is generally the same person who gave you the check. However, in the case of a third-party check, it will be the person who actually wrote the check.

22. WHERE DO I SUE?

You must file your lawsuit in the county in which the Defendant resides, regardless of where the check was given to you. For a more detailed discussion of venue, please refer to the Civil Claims FAQ file.

23. WHAT DEFENSES MAY BE RAISED TO A CLAIM FOR STATUTORY DAMAGES?

The maker of the check may raise several possible defenses to an action for statutory damages. These include: (1) full satisfaction of the check plus service charge was made prior to the commencement of the action; (2) the bank erred in dishonoring the check; and (3) the acceptor of the check knew at the time of acceptance that there were insufficient funds on deposit for the check to be honored.

24. WILL STATUTORY DAMAGES ALWAYS BE AWARDED?

No, there are several factors that may be considered by the court in ruling on a claim for statutory damages. The court may waive all or part of the statutory double damages if it finds that the defendant's failure to satisfy the dishonored check was caused either by the defendant having received a dishonored check or economic hardship.

The defendant may also avoid statutory double damages after suit has been filed by paying to the plaintiff the amount of the check, service charges on the check, plus all court costs.

25. WHAT IF MY CASE DOES NOT FIT EITHER THE CRIMINAL OR CIVIL BAD CHECK DAMAGES CRITERIA?

You may still seek to collect the amount of the check, or the debt represented by the check, by suing the maker of the check for the amount of money owed to you. The fact that the elements of the criminal or civil statutes does not apply to your case does not negate the fact that the person who made the check owes you money.

26. WHAT IS THE STATUTE GOVERNING CIVIL COLLECTION OF BAD CHECKS?


13-6-15. Damages for writing bad
checks.

(a) Notwithstanding any criminal sanctions which may apply,
any person who makes, utters, draws, or delivers any check, draft,
or order upon any bank, depository, person, firm, or corporation
for the payment of money, which drawee refuses to honor the
instrument for lack of funds or credit in the account from which to
pay the instrument or because the maker has no account with the
drawee, and who fails to pay the same amount in cash to the payee
named in the instrument within ten days after a written demand
therefor, as provided in subsection (c) of this Code section, has
been delivered to the maker by certified mail shall be liable to
the payee, in addition to the amount owing upon such check, draft,
or order, for damages of double the amount so owing, but in no case
more than $500.00, and any court costs incurred by the payee in
taking the action.
(b) The payee may charge the maker of the check, draft, or
order a service charge not to exceed $20.00 or 5 percent of the
face amount of the instrument, whichever is greater, when making
written demand for payment.
(c) Before any recovery under subsection (a) or (b) of this
Code section may be claimed, a written demand in substantially the
form which follows shall be sent by certified mail to the maker of
the instrument at the address shown on the instrument:

"You are hereby notified that a check or instrument numbered
________, issued by you on ____________ (date), drawn upon
____________ (name of bank), and payable to ____________, has been
dishonored. Pursuant to Georgia law, you have ten days from receipt
of this notice to tender payment of the full amount of the check or
instrument plus a service charge of $20.00 or 5 percent of the face
amount of the check or instrument, whichever is greater, the total
amount due being $ ________. Unless this amount is paid in full
within the ten-day period, the holder of the check or instrument
may file a civil suit against you for two times the amount of the
check or instrument, but in no case more than $500.00, in addition
to the payment of the check or instrument plus any court costs
incurred by the payee in taking the action."
(d) For purposes of this Code section, the holder of the
dishonored check, draft, or order shall file the action in the
county where the defendant resides.
(e) It shall be an affirmative defense, in addition to other
defenses, to an action under this Code section if it is found that:
(1) Full satisfaction of the amount of the check or
instrument plus the applicable service charge was made prior to the
commencement of the action;
(2) The bank or depository erred in dishonoring the check or
instrument; or
(3) The acceptor of the check or instrument knew at the time
of acceptance that there were insufficient funds on deposit in the
bank or depository with which to cause the check or instrument to
be honored.
(f) In an action under this Code section, the court or jury
may, however, waive all or part of the double damages upon finding
that the defendant's failure to satisfy the dishonored check or
instrument was due to the defendant receiving a dishonored check or
instrument written to the defendant by another party.
(g) Subsequent to the commencement of the civil action under
this Code section, but prior to the hearing, the defendant may
tender to the plaintiff as satisfaction of the claim an amount of
money equal to the sum of the amount of the dishonored check,
service charges on the check, and any court costs incurred by the
plaintiff in taking the action.
(h) In an action under this Code section, if the court or jury
determines that the failure of the defendant to satisfy the
dishonored check was due to economic hardship, the court or jury
has the discretion to waive all or part of the double damages.
However, if the court or jury waives all or part of the double
damages, the court or jury shall render judgment against the
defendant in the amount of the dishonored check plus service
charges on the check and any court costs incurred by the plaintiff
in taking the action.