Non-sufficient funds

Non-sufficient funds (NSF) is a term used in the banking industry to indicate that a cheque cannot be honored because insufficient funds are available in the account on which the instrument was drawn.[1] An NSF check is often referred to as a bad check, dishonored check, bounced check, cold check, rubber check, returned item, or hot check. In England and Wales and Australia, such checks are typically returned marked "Refer to Drawer", an instruction to contact the person issuing the check for an explanation as to why the check was not honored.[2]

Reasons for dishonored checks

The reasons for receipt of bad checks mostly relate to the party issuing the check not having sufficient funds available in the amount presented for withdrawal from the checking account. Other reasons that checks may not be honored include the account holder cancelling the check to deliberately withhold payment; the account holder's funds being frozen; the account not actually existing due to a false check being presented; and damage to the check.

Consequences

Among the consequences of issuing a NSF check are actions by financial institutions, civil liability to the drawee, and possible criminal penalties. When a bad check is negotiated, the recipient of the check may choose to take action against the drawer. The action that is taken may be a civil collection action or lawsuit, or seeking criminal charges, depending on the amount of the check and the laws in the jurisdiction where the check is drawn.

Financial institutions

When a bad check is drawn, the check writer may be charged a fee by their own financial institution. If paying the item puts the account holder in a negative status by a relatively small amount, the bank may choose to honor the check. When this occurs, the account will be overdrawn, and the fees charged by the bank will place an extra burden on the account until the overdraft is covered. If the paying of the item would render the account significantly overdrawn, the bank may choose not to honor the check. The item will be returned to the depositor's bank, and ultimately to the depositor. The amount of the check plus the depositor's bank's fee will be debited from the depositor's account. The depositor then may choose to re-submit the check, hoping it will clear on a second attempt, or else proceed immediately with collection activities, civil or criminal.

Civil consequences

If the dishonored check has been scanned and replaced by a substitute check, the original check is not returned to the depositor, but instead the substitute check will be marked "not sufficient funds" and returned to the depositor.[3] The recipient may choose not to accept checks in the future from the writer (typically recorded on a paper or electronic "Do not accept checks from..." list), or may suspend the check-writer's privileges until the check-writer has made good on the debt.

The recipient may also choose to report the writer to a database service. This may lead to other merchants in the future refusing to accept checks from the writer or a joint account holder, or the writer having trouble obtaining a checking account at another bank. If a merchant or other place of business receives too many bad checks from customers, it may simply decide to not accept any checks at all from anyone.[4]

Criminal consequences

In some cases the issuance of a NSF check may result in criminal prosecution of the drawer of the check. Criminal charges are more likely where the drawer can be shown to have issued the check knowing that it would not be honored. Charges are also more likely when the NSF check is for a large amount, or where the drawer issues multiple NSF checks.[5]

Prevention

Steps that can be taken to reduce the likelihood of a bad check include:

  • Carrying a higher balance in the checking account; that is to always have a "buffer" amount just in case an unexpected check does clear.
  • Better balancing techniques
  • Overdraft protection - This may be in the form of a link to a savings account from which funds will be automatically transferred, a credit card, or, a line of credit designed specially for this purpose.
  • Using a credit/debit card or cash instead of checks.

India

In India, a bounced check is a criminal offense, punishable by fines and/or jail term, under Section 138 of the Negotiable Instruments Act, 1881.[6][7] Until January 2013, a bounced check was a criminal offense in the United Arab Emirates that led to imprisonment of the person who wrote it.[8]

United States

In many jurisdictions in the United States, a bad check restitution program exists that allows recipients of bad checks to collect the funds from the local district attorney's office, regardless of the amount. An agency run by the district attorney will pursue the drawer of the check by attempting to collect the funds in exchange for avoiding criminal prosecution. The check drawer will be responsible to cover the amount of the check, plus all fees to which the recipient is legally entitled, plus a program fee. The drawer will also be required to take a course designed to improve check-writing habits. These programs are controversial and in recent years, have come under fire in lawsuits. Normally, if check writer can cover up their bad credits in sixty days, all charges will be dropped.

In some jurisdictions, for a criminal prosecution on a bad check there must be some element of fraud involved in the issuance of the check. In some U.S. states, if the check drawer informs the party they are uttering the check to that it will not clear at the current time (such as asking someone to “hold” a check for a few days), if the check bounces, they can still be sued for the value of the check, but warning the recipient before acceptance that the check will not clear immediately negates the element of fraud and prevents criminal prosecution. For similar reasons, a post-dated check will not normally support a conviction for issuing a NSF check.[1]

United Kingdom

Use of the term "Refer to Drawer" became standard in England and Wales after bank was successfully sued for libel after returning a cheque with the phrase "Insufficient Funds" after making an error; the court ruled that, as there were sufficient funds, the statement was demonstrably false and damaging to the reputation of the person issuing the cheque.[2] Even with the use of this revised phrase, the mere implication that funds were insufficient has been ruled to be libelous in other cases of banks mistakenly refusing to pay cheques.[9][10]

Metaphorical use

Martin Luther King used the concept as a metaphor in his I Have a Dream speech. He compared the Declaration of Independence to a bad check.[11]

See also

References

  1. 1 2 Larson, Aaron (18 August 2016). "What to Do if You Receive a Bad Check". ExpertLaw. Retrieved 29 September 2017.
  2. 1 2 Ward, Paul (2010). Tort Law in Ireland. Kluwer Law International, 2010. p. 129. ISBN 9041133321. Retrieved 29 September 2017.
  3. ↑ "Anatomy of a Substitute Check" (PDF). Federal Reserve Banks. 2004. Retrieved 29 September 2017.
  4. ↑ Wood, Leslie (2005-06-29). "DA explains consequences of writing bad checks in Gallup". Independent. Archived from the original on 22 April 2008. Retrieved 2008-05-09.
  5. ↑ See, e.g., "Bad Check Questions". Hall County, Georgia. Missing or empty |url= (help); |access-date= requires |url= (help)
  6. ↑ "THE NEGOTIABLE INSTRUMENTS ACT, 1881 ACT NO. 26 OF 1881". 1881.
  7. ↑ "The legal consequences with bounced cheques! - Yahho India Finance".
  8. ↑ Clancy, Rebecca (2013-01-01). "UAE stops jailing expats for bounced cheques". The Telegraph. Retrieved 2013-05-22.
  9. ↑ "Bounced cheques yield libel damages". The Independent. 21 July 1992. Retrieved 2009-09-24.
  10. ↑ Ackland, Richard (6 August 2010). "Cheques and free speech get bounced - Aktas v. Westpac". Sydney Morning Herald. Retrieved 13 June 2014.
  11. ↑ "Martin Luther King I Have a Dream Speech - American Rhetoric". www.americanrhetoric.com.
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