BANKRUPTCY AND BAD CHECKS

BANKRUPTCY AND BAD CHECKS

Bankruptcy never protects you from a criminal act.  The rule is and always has been that bankruptcy is for honest, but unfortunate, persons and not for cheats or criminals.  For that reason, you do not see people who have committed crimes filing for bankruptcy.   The real problem is determining what is a criminal act and what is not a criminal act.
A common question that comes to my office is that a check is written, it bounced and now a creditor is threatening to have you arrested.   There are a lot of rules that must be complied with before you can be arrested for a criminal bad check.  South Carolina law does not make having a check not being paid when presented a criminal act.
The law of criminal bad checks is found in Section 34-11-   et. Seq.  A criminal bad check must be given with a reasonable belief that there are funds in the bank to cover the check when it is written.   A post-dated check is not a criminal bad check.  A check given to a check cashing lender will not result in a criminal charge if the check does not clear when it is time to cash the check.  A check that is sent for payment on account that does not clear is never a criminal bad check.  I am not addressing the law of writing a check on an account that was closed when you wrote the check.

The fact is that people do, in fact, get arrested for writing a bounced check even if it does constitute a criminal bad check.  Just because you are not guilty of a criminal act does not keep the creditor from taking the check to a magistrate.  There are a huge number of checks coming through the system and most of them are criminal bad checks.  Sometimes a non-criminal bounced check sneaks through and the check writer may even be arrested.

That does not mean that you are guilty of a crime.  However, you probably will not feel good when you are waiting to tell your story to a magistrate.

A creditor who has you improperly arrested can be sued and you can recover damages for those actions.

About Nathan Davis, Esquire

Born in Charleston, South Carolina, Nathan Davis has been practicing law for many years. Mr. Davis has a wide variety of experiences having practiced domestic relations, criminal law, social security law having also practiced collection law in the past. This knowledge is helpful when someone needs to restart their financial life. The practice is now primarily bankruptcy and debtor representation work, but, Mr. Davis continues to also practice real estate law, trusts and estates and a general litigation practice. I believe that the most important part of representation is trying to leave you better off when the case is finished than when you started. Although I will do as my client directs, I will always tell you if I think that you are making a mistake. Bankruptcy is about a "fresh start". If you do not make changes in what you are doing, you will be doing what you are doing now in the future. There is no shame in bankruptcy or other steps that you may take to start your life over. Too often, people worry more about things than about themselves, their family or their future.
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