§ 14-107.1. Prima facie evidence in worthless check cases. - North Carolina Statutes

§14‑107.1.  Prima facie evidence in worthless check cases.

(a)        Unless the contextotherwise requires, the following definitions apply in this section:

(1)        Check Passer. – Anatural person who draws, makes, utters, or issues and delivers, or causes tobe delivered to another any check or draft on any bank or depository for thepayment of money or its equivalent.

(2)        Acceptor. – Aperson, firm, corporation or any authorized employee thereof accepting a checkor draft from a check passer.

(3)        Check Taker. – Anatural person who is an acceptor, or an employee or agent of an acceptor, of acheck or draft in a face‑to‑face transaction.

(b)        In prosecutionsunder G.S. 14‑107 the prima facie evidence provisions of subsections (d)and (e) apply if all the conditions of subdivisions (1) through (7) below aremet. The prima facie evidence provisions of subsection (e) apply if onlyconditions (5) through (7) are met. The conditions are:

(1)        The check or draftis delivered to a check taker.

(2)        The name and mailingaddress of the check passer are written or printed on the check or draft, andthe check taker or acceptor shall not be required to write or print the race orgender of the check passer on the check or draft.

(3)        The check takeridentifies the check passer at the time of accepting the check by means of aNorth Carolina driver's license, a special identification card issued pursuantto G.S. 20‑37.7, or other reliable serially numbered identification cardcontaining a photograph and mailing address of the person in question.

(4)        The license oridentification card number of the check passer appears on the check or draft.

(5)        After dishonor ofthe check or draft by the bank or depository, the acceptor sends the checkpasser a letter by certified mail, to the address recorded on the check,identifying the check or draft, setting forth the circumstances of dishonor,and requesting rectification of any bank error or other error in connectionwith the transaction within 10 days.

Anacceptor may advise the check passer in a letter that legal action may be takenagainst him if payment is not made within the prescribed time period. Suchletter, however, shall be in a form which does not violate applicableprovisions of Article 2 of Chapter 75.

(6)        The acceptor filesthe affidavit described in subdivision (7) with a judicial official, as definedin G.S. 15A‑101(5), before issuance of the first process or pleading inthe prosecution under G.S. 14‑107. The affidavit must be kept in the casefile (attached to the criminal pleading in the case).

(7)        The affidavit of theacceptor, sworn to before a person authorized to administer oaths, must:

a.         State the factssurrounding acceptance of the check or draft. If the conditions set forth insubdivisions (1) through (5) have been met, the specific facts demonstratingobservance of those conditions must be stated.

b.         Indicate that atleast 15 days have elapsed since the mailing of the letter required undersubdivision (5) and that the check passer has failed to rectify any error thatmay have occurred with respect to the dishonored check or draft.

c.         Have attached a copyof the letter sent to the check passer pursuant to subdivision (5).

d.         Have attached thereceipt, or a copy of it, from the United States Postal Service certifying themailing of the letter described in subdivision (5).

e.         Have attached thecheck or draft or a copy thereof, including any stamp, marking or attachmentindicating the reason for dishonor.

(c)        In prosecutionsunder G.S. 14‑107, where the check or draft is delivered to the acceptorby mail, or delivered other than in person, the prima facie evidence rule insubsections (d) and (e) shall apply if all the conditions below are met. Theprima facie evidence rule in subsection (e) shall apply if conditions (5)through (7) below are met. The conditions are:

(1)        The check or draftis delivered to the acceptor by United States mail, or by some person orinstrumentality other than a check passer.

(2)        The name and mailingaddress of the check passer are recorded on the check or draft.

(3)        The acceptor haspreviously identified the check passer, at the time of opening the account,establishing the course of dealing, or initiating the lease or contract, bymeans of a North Carolina driver's license, a special identification card issuedpursuant to G.S. 20‑37.7, or other reliable serially numberedidentification card containing a photograph and mailing address of the personin question, and obtained the signature of the person or persons who will bemaking payments on the account, course of dealing, lease or contract, and suchsignature is retained in the account file.

(4)        The acceptorcompares the name, address, and signature on the check with the name, address,and signature on file in the account, course of dealing, lease, or contract,and notes that the information contained on the check corresponds with theinformation contained in the file, and the signature on the check appearsgenuine when compared to the signature in the file.

(5)        After dishonor ofthe check or draft by the bank or depository, the acceptor sends the checkpasser a letter by certified mail to the address recorded on the check or draftidentifying the check or draft, setting forth the circumstances of dishonor andrequesting rectification of any bank error or other error in connection withthe transaction within 10 days.

                  An acceptormay advise the check passer in a letter that legal action may be taken againsthim if payment is not made within the prescribed time period. Such letter,however, shall be in a form which does not violate applicable provisions ofArticle 2 of Chapter 75.

(6)        The acceptor filesthe affidavits described in subdivision (7) of this subsection with a judicialofficial, as defined in G.S. 15A‑101(5), before issuance of the firstprocess or pleading in the prosecution under G.S. 14‑107. The affidavitmust be kept in the case file (attached to the criminal pleading in the case).

(7)        The affidavit of theacceptor, sworn to before a person authorized to administer oaths, must:

a.         State the factssurrounding acceptance of the check or draft. If the conditions set forth insubdivisions (1) through (5) have been met, the specific facts demonstratingobservance of those conditions must be stated.

b.         Indicate that atleast 15 days have elapsed since the mailing of the letter required undersubdivision (5) and that the check passer has failed to rectify any error thatmay have occurred with respect to the dishonored check or draft.

c.         Have attached a copyof the letter sent to the check passer pursuant to subdivision (5).

d.         Have attached thereceipt, or a copy of it, from the United States Postal Service certifying themailing of the letter described in subdivision (5).

e.         Have attached thecheck or draft or a copy thereof, including any stamp, marking or attachmentindicating the reason for dishonor.

(d)        If the conditionsof subsection (b) or (c) have been met, proof of meeting them is prima facieevidence that the person charged was in fact the identified check passer.

(e)        If the bank ordepository dishonoring a check or draft has returned it in the regular courseof business stamped or marked or with an attachment indicating the reason fordishonor ("insufficient funds," "no account," "accountclosed" or words of like meaning), the check or draft and any attachmentmay be introduced in evidence and constitute prima facie evidence of the factsof dishonor if the conditions of subdivisions (5) through (7) of subsection (b)or subdivisions (5) through (7) of subsection (c) have been met. The fact thatthe check or draft was returned dishonored may be received as evidence that thecheck passer had no credit with the bank or depository for payment of the checkor draft.

(f)         An affidavit by anemployee of a bank or depository who has personal knowledge of the facts statedin the affidavit sworn to and properly executed before an official authorizedto administer oaths is admissible in evidence without further authentication ina hearing or trial pursuant to a prosecution under G.S. 14‑107 in theDistrict Court Division of the General Court of Justice with respect to thefacts of dishonor of the check or draft, including the existence of an account,the date the check or draft was processed, whether there were sufficient fundsin an account to pay the check or draft, and other related matters. If thedefendant requests that the bank or depository employee personally testify inthe hearing or trial, the defendant may subpoena the employee. The defendantshall be provided a copy of the affidavit prior to trial and shall have theopportunity to subpoena the affiant for trial. (1979, c. 615, s. 1; 1985, c.650, s. 1; 1989, c. 421; 1997‑149, s. 1.)