CASS COUNTY STATE’S ATTORNEY
POLICY ON CRIMINAL PROSECUTION OF
INSUFFICIENT FUNDS AND CLOSED ACCOUNT CHECKS
The Cass County State’s Attorney’s Office (hereafter “SAO”) will consider prosecution on insufficient fund (NSF) and closed account (also known as “no account”) checks under North Dakota Century Code Chapter 6-08 only when all of the following criteria are met. The term “merchant” as used below relates to any party, and their employee(s), that accepts a check and intends to submit that check to the SAO for prosecution.
ID REQUIRED: The merchant must review a photo ID (drivers’ license preferred of the check writer). The merchant must write on the check the ID number and date of birth shown on the ID. In the case of a non-driver photo ID, the merchant must write the ID issue date. It will not be sufficient for the merchant merely to ask if everything on the check is correct. It will not be sufficient for the merchant merely to review a social security card and report social security numbers on the face of the check as if a ND driver’s license number.
ID numbers are verified by the SAO. The SAO will decline for prosecution any checks where the ID information reported by the merchant is not valid.
WRITTEN NOTICE/PROOF OF SERVICE: Before submitting checks to the SAO for prosecution the merchant, or their agents, must prepare a written notice of dishonor for each check to the check writer. If the check is drawn on a business account, notice must still be served on the check writer, not the business. The notice must, among other things, give the check writer ten (10) days from receipt of the notice to pay the check. The merchant must also serve that notice upon the check writer. It is sufficient to serve that notice by mail. The merchant must also obtain proof of such service. For the purpose of this policy, proof of service by mail may be made by obtaining a return receipt (certified mail) or by preparing an affidavit of mailing signed by the individual making the mailing. A letter alone will not serve as Notice unless it is substantially similar to the form.
PREPARING AFFIDAVIT OF INSUFFICIENT FUNDS OR NO ACCOUNT CHECKS/FILING WITH SAO: The person who actually accepted the check, whether that is the merchant or the merchant’s employee (no exceptions), must complete an Affidavit of Insufficient Funds or No Account Checks. The merchant must then file the following four things with the SAO: (1) the Affidavit of Insufficient Funds or No Account Checks; (2) the original check; (3) a copy of the written notice of dishonor; and (4) proof of service (e.g., affidavit of service by mail or return receipt).
You may access these forms by clicking on the following link: Affidavit of Insufficient Funds, Notice of Dishonored Check and Service Document.
STATUTE OF LIMITATIONS: In general, prosecution for all bad checks must be filed with the court by the SAO within one hundred twenty (120) days after dishonor by the drawee. Therefore, it is the policy of the SAO that the merchant or their agent must submit all NSF or Closed Account checks to the SAO no more than ninety (90) days after dishonor. That time frame will allow the SAO time to review the facts, prepare the necessary papers and timely file any necessary documents with the court.
EXCLUSIONS: The making of a postdated check knowingly received as such, or a check issued under an agreement with the payee that the check not be presented for payment for a specified time, is not a violation of state statute and cannot be prosecuted by the SAO. The SAO cannot prosecute two-party checks and refer-to-maker checks because they are neither insufficient funds nor closed account checks. The SAO will no longer prosecute rent checks or payroll checks due to evidentiary issues arising with these types of checks. The merchant should present to local law enforcement for investigation, checks that are returned as forgeries. The merchant should also present to local law enforcement checks that are returned with a “stop payment” stamp, if the merchant feels that payment was stopped to intentionally defraud the merchant. If the check is excluded under this section, the merchant may be able to pursue remedies through civil means such as small claims court. Refer also to section 8 below.
MINIMUM DOLLAR AMOUNT: Checks returned for insufficient funds or as closed account checks that are written for $100.00 or less will not be prosecuted. However, if the merchant wants to proceed with the required paperwork, they may send the checks to the SAO and our office will hold them until the statute of limitations of 120 days has passed. If our office receives checks to aggregate a total of at least $100.01, we will proceed with prosecution. All of the aggregated checks must meet the standard requirements for check prosecution.
QUALIFICATIONS: The check must be presented for payment within fourteen (14) days of the date the check was received and must have a bank stamp of NSF or Account Closed on it. Checks that have been presented for payment twice (not required by statute), being NSF on the first presentation and account closed on the second are considered to be NSF. The status of the account is determined when the check is first presented for payment.
JURISDICTION: The SAO will only accept checks that are written in Cass County and passed by persons living in North Dakota or a border state. The SAO will not accept checks issued by people living in Canada. Furthermore, the SAO reserves the right to decline prosecution of any insufficient funds or closed account check where the bank or depository upon which the check is drawn is located in another state or country as a reasonable exercise of prosecutorial discretion in allocating limited prosecutorial resources.
NOTIFICATION OF PAYMENT RECEIVED: If a merchant directly receives payment of the insufficient funds or closed account check after the check has been turned over for prosecution, then the Restitution Department in the SAO must be notified immediately at 241-5855. Payment of such check is not a factor in the SAO’s decision about whether to proceed with prosecution.
[NOTE: The above policy is intended to reflect, among other things, the requirements foundin North Dakota Century Code Chapter 6-08. If for any reason there are conflicts between this policy and the referenced statutes, the requirements of the statutes will prevail.]
Birch P. Burdick
Cass County State’s Attorney
Rev. June 2013