non sufficient funds

I set up a paymet arrangement with a debt collector/attorneys office. The first payment of the arrangement was successfully debited from my checking account. 5 days before the second and final payment was to be debited, i contacted the collector to notify them that the funds would not be available. They informed me that legally they could not alter the arrangement and that if the funds were not available on the due date, then it would be considered a “bounced check” and I would be charged criminally. Do I have a leg to stand on??

Asked on June 27, 2009 under Criminal Law, Florida

Answers:

M.S., Member, Connecticut Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Although I do not practice law in the State of Florida, here are my initial impressions.  First, a credit agency/debt collector is a private organization, and as such has no authority to charge anyone with a crime.  Only the state has the ability to charge people with crimes.  Private organizations/individuals can report criminal activity, but it is up to the police/prosecutors to arrest/prosecute.  That being said, it is theoretically possible that the debt collector could attempt to report this as "criminal activity" to law enforcement officials.  The question then becomes whether you would be arrested for this crime based upon the facts alleged by the debt collector, and whether you have documentation of your request that they stop payment on your check.  In other words, did you make this request via telephone, or via mail?  Do you have a copy of the letter, if it was sent via mail?  I would presume that this would be a civil, rather than criminal matter, if you were able to demonstrate that you had communicated a "stop payment" on the check prior to the date that the company attempted to cash it.  Nevertheless, since you are potentially the subject of a criminal investigation or, at the very least, a civil action as a result of this matter, I highly recommend that you consult with and/or retain an attorney to protect all of your interests/rights arising out of this transaction.


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