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The Check Fraud Division of the District Attorney's Office is responsible for investigating
and prosecuting the offense of theft by check.
The Check Fraud Division is part of the Public Service Bureau of the Harris
County District Attorney's Office. The Check Fraud Division is one of the
few divisions
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at the District Attorney's Office that is able to take reports of criminal conduct
directly from the victim of the crime. In virtually all other crimes,
allegations of criminal conduct are reported to the police, and the District Attorney's
Office reviews the police report to decide what charges, if any, are appropriate.
The cases that can ordinarily be handled by the Check Fraud Division without
the necessity of a police report are those in which a person writes his or her own
check in exchange for goods, services or cash, and in which the victim can identify
that person.
A checkwriter may also be prosecuted by the Check Fraud Division for a violation
of a
issuance of a bad check
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if a check was given to pay court ordered child support and was
later dishonored by the bank on which it was drawn. You will need to obtain a certified
copy of the decree establishing the obligation for child support and follow the
directions in the How to file section below.
The Check Fraud Division conducts an investigation that ordinarily involves obtaining
documents and analyzing them, and, as necessary, interviewing witnesses by telephone.
If the case is one that involves checks, but cannot be prosecuted as a theft by
check, or which requires large amounts of peace officer investigation, the complainant
will be referred to the court or police agency with jurisdiction of the case.
We hope this web site proves to be helpful to you. If, after perusing this site,
you have further questions, or if you have comments, please call us at 713-755-7883
or e-mail us at
checkfraud@dao.hctx.net.
If you have a complaint that fits the criteria for theft by check and the value
of the property stolen is in excess of $1500.00, we recommend that
you take advantage of our electronic pre-filing procedure.
You may charge a reasonable fee not to exceed $25.00.
Art. 9022. Processing fee by holder of dishonored check. (a) The
holder of a check or its assignee, agent, representative, or any other person retained
by the holder to seek collection of the face value of the dishonored check on return
of the check to the holder following its dishonor by a payor may charge the drawer
or endorser a reasonable processing fee, which shall not exceed $25. A person may
not charge a processing fee to a drawer or endorser under this subsection if the
fee has been collected under Article 102.007(e) or Article 102.0071, Code of Criminal
Procedure. If a processing fee has been collected under this subsection and the
holder subsequently receives a fee collected under Article 102.007(e) or Article
102.0071, Code of Criminal Procedure, the holder shall immediately refund the fee
previously collected from the drawer or endorser. Notwithstanding any other provisions
of law, a loan agreement made under Chapter 3 or 4, Title 79, Revised Statutes (Article
5069-1.01 et seq., Vernon's Texas Civil Statutes), may provide that on return of
a dishonored check given in payment under the agreement, the holder may charge the
obligor under the agreement the processing fee authorized by this Act, and the fee
may be added to the unpaid balance owed under the agreement, except that interest
may not be charged on the fee during the term of the agreement.
(b) Nothing herein shall be construed as affecting any right or
remedy to which the holder of a check may be entitled under any rule, regulation,
written contract, judicial decision, or other statute.
A debtor who files a bankruptcy petition is protected from further
collection attempts. That protection is called the automatic stay. If the
person who wrote you a bad check has filed for bankruptcy protection, you are likely
to be listed as a creditor and the Bankruptcy Court will consider you a creditor
even though you did not voluntarily extend credit. If you receive notices from the
Bankruptcy Court, you must respond to the notices in order to protect your interests.
Should you ignore the notices, you risk forfeiting any further opportunity to collect
restitution for the check. If you are listed as a creditor, whether the case is
still pending or already closed, you will need to contact the Bankruptcy Court to
determine what steps you may take to collect the money owed to you.
The bankruptcy court, however, provides no protection from criminal
prosecution for crimes the debtor may have committed, including theft by check or
issuance of a bad check
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A judge or jury in a state court can find the checkwriter guilty and levy the appropriate
sentence but restitution will not ordinarily be ordered.
You may file a complaint with us for the theft if the transaction
meets the criteria for theft by check. Let us know that the checkwriter filed a
case in the bankruptcy court when you submit the complaint. Please make copies of
any correspondence you receive regarding the bankruptcy case and forward the copies
to us so that we may include the information in our case file.
If you have received notice that we will not be able to prosecute
the case you submitted, you may be able to file a complaint for
issuance of a bad check
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or you may be able to file a civil suit. You can reclaim your original documents
from us by sending us a letter on your own letterhead requesting return of your
originals or by appearing at our office with identification. If you stop by the
office to pick up your originals, be aware that, depending on how busy we are at
the time, you may have a small wait while we make copies for our records. We advise
you to call ahead [713-755-7883] and let us know when you are stopping by so that
we can make the copies ahead of time.
If you fail to understand our explanation of the reason for the
rejection, please feel free to contact the employee who signed the letter informing
you of the rejection.
A forgery affidavit is a form in which an individual swears before
a notary public that the check listed on the form was not written by the
person who signed the affidavit. The notarization vouches for the fact that the
person purported to have signed the affidavit proved his/her identity to the notary's
satisfaction, not for the truth of the claim of the affidavit. You will
have to make the determination whether you believe the affidavit or not. You are
not required to accept the affidavit as fact.
If you are convinced, however, that the check you were given is
forged, you should contact the police agency with jurisdiction in the area where
you received the check. Because investigation of a forgery case requires resources
in excess of those available with the Check Fraud Division, we are unable to accept
complaints on forgery cases.
If, on the other hand, you believe that the checkwriter is indeed
the account holder and that the checks are not forgeries, you may submit a complaint
if the transaction qualifies as a theft situation. Please send along a copy of the
forgery affidavit and any information you may have which helped you disbelieve the
affidavit (for instance, you have done business with the checkwriter before, you
performed work at the address for the person listed on the check as account holder).
If, after our investigation, we determine the check is probably a forgery, we will
notify you of that and you can reclaim your documents and file a report with the
police agency with jurisdiction.
Texas has, since its inception as a nation in 1836 and its later
incorporation into the United States, been a jurisdiction that is kind to debtors.
This is in contrast to the practices of other states that are much more pro-creditor.
Many of the Americans who came to Texas during the initial Anglo
settlement of the area came to start a new life and left behind their old life,
including their debts. The letters "GTT" left scrawled on one's door in
Kentucky amounted to a form of de facto bankruptcy making it clear to any creditors
left behind that their extension of credit was an unwise one.
The nature of the founders of Texas has much to do with its liberal
laws in favor of debtors. Considerable protection for debtors is contained in the
Texas Constitution (click here for
the "Texas Constitution"). Considerable property is
exempt from seizure
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to pay judgments, for example. The majority of people in Texas are, in fact, judgment
proof, meaning that all of the property they own is exempt from seizure
to pay debts nor can wages be garnished form payment of most debts.
Our criminal laws are drafted in a way that acknowledges and expands
the pro-debtor bias of the constitution. For example, the definitions regarding
theft explicitly state that
deception
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for purposes of the theft statute does not include mere
failure to perform on one's contracts. Another example is a provision in the
Probation from seizure
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of this state (now called community supervision) which
prohibit a judge from
revoking probation of a defendant (and imprisoning him) if he/she fails to pay restitution
if that defendant can show that he/she is unable
to pay restitution.
The law of
issuance of a bad check
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makes it a crime to write a bad check, even if the check is for payment of a pre-exiting
debt, but (with the narrow exception of checks written for child support) it carries
no imprisonment as punishment. The maximum punishment, in fact, is a fine of $500.00.
With the foregoing historical background, it is easy to understand
that Texas does not criminalize the owing of a debt. If a bad check is given to
pay a debt, the issuance of that check, while it may be a criminal offense,
is not a theft. Instead, it is the non-imprisonment offense of
issuance of a bad check
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Phrased another way, a bad check is a
lie. If the person who wrote the check
led you to believe it was a good check, yet knew it was not good, he or she lied
to you. The lie
is punished as
issuance of a bad check
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On the other hand, if a person lies to you in order to get you to give them property
or services and
you give them the property or services because you believed the lie, the
person committed a theft.
Lying with checks and stealing with checks are two separate offenses.
Lying about whether a check is good (and introducing it into commerce) is
issuance of a bad check
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Using a bad check to
deceive
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another out of his/her property is theft.
The other check offense involves signing another person's name
on a check. That crime is
forgery
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if done with intent to defraud.<<
Although in most cases a check given for a pre-existing
debt does not meet the requirements for a theft charge, a very narrow exception
exists. IF the check writer obtained possession of additional
merchandise or secured the performance of
further service because he/she
paid a pre-existing debt, then the checkwriter may have stolen the additional
merchandise or the further service if he/she would not have been able to obtain
the merchandise or service without paying the existing debt. If you think your check
may qualify as a theft even though its purpose was for payment of a pre-existing
debt because the checkwriter secured further merchandise or services by writing
the check, you may contact us either via email at Check Fraud or by calling
at 713-755-7885.
We prefer that you wait until our investigation is complete to
continue your collection efforts. While you may, of course, continue to try to collect,
great confusion can result from our prosecution simultaneous with your collection.
If you choose to continue collection efforts, remember the following points:
- You may not promise to stop our investigation by accepting
money.
- You may not promise to dismiss the case
if restitution is paid. You are no longer a party to the case once we file, rather
you are a witness. Only the Assistant District Attorney handling the case can dismiss
the case once it is filed.
- You must
let us know if you receive any restitution. Otherwise, we may waste time and resources
trying to get the checkwriter to pay you restitution when it has already been paid
in part or in full.
- If you receive restitution,
write us a letter on your letterhead indicating when you received the payment and
for how much.
All of the information we request of you on the various complaint
forms is requested because we need the information in order to investigate your
complaint. None, however, is more important than the identity of the checkwriter
and the checkwriter's date of birth. We must swear to the judge or inform the Grand
Jury that all of the witnesses whose statements we used were credible people, therefore,
we must check the criminal history of all persons who provided us with the information
we used to file the case. If we have either a nickname or partial name and a wrong
or no birthdate, we are unable to determine that the witness is credible and cannot
file the case.
Be assured, however, that the information in our files is confidential
and not available to the general public until it becomes public as a public filing
or court proceeding. Rarely is the check receiver's date of birth included in any
documents subject to public filing.
Please understand that the purpose of the Check Fraud Division
is not collection but rather prosecution of individuals who commit acts prohibited
by Texas law. While we are very interested in securing restitution for you, we may
not be able to do that. We make no promises that we will get your money for you.
In most cases, whether restitution is ordered by the court is determined by the
judge and thus is beyond our control. Furthermore, many defendants have no money.
They've spent or used what they stole from you and they don't have more money to
pay you back. A judge may instead order such a defendant to serve time in jail in
order to pay his/her debt to society. In that case, restitution will not be ordered.
If, however, restitution is received by this office, the financial administrator
will contact you immediately to let you know that we have money for you. Since we
generally accept only money orders or cashier's checks, we can transfer those to
you just as we receive them. With a mail release we can usually mail them to you
within twenty-four hours of our receipt of them. Without a mail release, you will
be required to present identification at this office to obtain your restitution.
In the case of court ordered restitution (usually as a term of probation), you will
receive all restitution directly from the Harris County Probation Department but
you must complete and return the forms they send to you. Even if we do not get restitution
for you, you may be able to file a suit in the civil courts in order to recover
your losses. You should contact either the Justice of the Peace or a private attorney
for advice on how to file a civil suit.
Payment of partial restitution by the defendant does not prevent the District Attorney
from successfully prosecuting any theft case, including theft by check cases. Office
from successfully prosecuting any theft case, including theft by check cases. This
is so for the common sense reason that the theft, if there was one, was complete
when it was committed. Subsequent actions cannot change the history
of the case. This issue is also dealt with in the
presumption of theft by check.
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Under Texas law, a person commits a theft of property or services
if that person unlawfully appropriates property or secures performance of a service
from the owner by
deceive
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Inducing an owner to give up property by giving the owner a check which the issuer
knows will be dishonored by the bank qualifies as
deceive
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if the owner provided the goods in good faith reliance that the check would be honored
by the bank on which it was drawn. The key under the law is that the owner must
give the merchandise at the time the check writer renders the check.
Furthermore, inducing a provider of services to provide services by giving the provider
a check which the issuer knows will be dishonored by the bank qualifies as
deceive
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if the service provider provided those services in good faith reliance that the
check would be honored by the bank on which it was drawn. The key under the law
is that the owner must provide the service at the time the check writer renders
the check.
Please note that the following types of checks do not qualify
under this criterion:
- Hold Checks
- Post-Dated
Checks
- Third-Party Checks
- Payroll
Checks
- Checks for Debts Owed
- Drafts
In the case of check like the ones listed above, however, if the
checkwriter knew at the time the checkwriter issued the check that the account on
which the check was drawn held insufficient funds to cover this check as well as
all other outstanding checks, the checkwriter may have committed the crime of Issuance
of a Bad Check. Complaints involving the crime of Issuance of a Bad Check are not
investigated by the Check Fraud Division of the District Attorney's Office, but
may be filed with the
Justice of the Peace of the precinct where the check was
passed. For information regarding the location and telephone numbers for the Justices
of the Peace in Harris County click on the Justice of the Peace link.
The Statute of Limitations below represents the maximum time after
a check is written during which we can file a theft case. We prefer that you file
your complaint with us within 90 days of receiving the check. We have found that
prosecution of checks older than 90 days is difficult, often impossible because
witnesses forget the facts or move away or otherwise become unavailable. The Statute
of Limitations for Theft is as follows:
- misdemeanor = 2 years from the date the check was written
A misdemeanor is generally charged when a check is exchanged for property whose
value is less than $1500.00 ($750.00 if the check was written prior to September
1, 1994) and the property stolen does not include firearms, sheep, cattle, horses,
or exotic animals. - felony = 5 years from the date
the check was written
A felony is generally charged when a check is exchanged for property whose value
is $1500,00 or more ($750.00 or more if the check was written prior to September
1, 1994) or does include firearms, sheep, cattle, horses, or exotic animals.
The Statute of Limitations runs until the case is either indicted by the Grand Jury
or signed by the judge in the case of a misdemeanor. Once the case is filed, the
Statute of Limitations no longer applies except if the case must be refiled
To file a theft by check complaint with the District Attorney's
Check Fraud Division, you must:
(1) send the statutory notice to the check writer
(2) fill out the appropriate sworn and notarized complaint form and related documents
(3) submit the complaint form, along with documentary evidence in the form of copies
of the notice you sent, postal documents showing the notice was sent, and any invoices,
receipts or register tapes showing what was stolen.
The following is a more detailed description of the above steps
needed to file a complaint with us.
- The Statutory Notice. The first thing you
must do to file a theft by check case is to send the appropriate demand letter to
the check writer. For checks written since September 1, 1995, the law requires that
potential complainants in check fraud cases send a notice letter containing the
exact, specific language spelled out in the statute. A proper notice letter includes
the statutory demand language, gives the check writer ten days to pay the check,
and is sent by certified mail with return receipt requested. [A telegram may be
sent instead, if you prefer. Please check with us if you choose to use a telegram
for your demand] Be sure to keep a photocopy of the demand letter that you send.
We will need that copy to prove any theft by check case that goes to trial. Once
the green receipt card comes back to you, or the returned letter with the green
card still attached (do not open the returned letter!), and more than ten days have
elapsed, you may take the next step.
- The
Complaint Form and related documents.You must fill out
a complaint form: a
"complaint form" if you have one check from one
checkwriter; a
"multiple complaint form" if you have more than
one check from one checkwriter. At the end of each complaint form is an affidavit.Please read it carefully and fill in the blanks correctly,
then have the form witnessed by a notary public.
You will be swearing to the statements you made by filling in the blanks. If you
are not able to swear to all of the statements in the complaint form, call us. We
will be glad to assist you in altering the statements, if possible. You may
fill out a mail restitution release. If you choose to fill out the mail restitution
release, we will mail any restitution we receive on your behalf to you immediately.
Since, as a rule, we accept only money orders or cashier's checks made out to you
or your company, we are able to mail restitution payments out to you immediately
after we receive them. We cannot, however, be responsible for restitution payments
lost in the mail, so if you doubt the reliability of U.S. mail at your place of
business or residence, do not fill out the mail restitution
release. In that case, we will notify you when we have
restitution for you and you may come in person to our office and pick it up with
appropriate identification.
If the merchandise taken by the checkwriter is an automobile, you
will need to fill out the automobile addendum. The information we request on that
form is very important so please locate any information you may not have readily
available. - Documentary Evidence.
You will need to submit the original check, the certified letter receipt, a copy
of the letter you sent, and copies of the invoice, work order, cash register receipt,
if any exist, along with any notes or information you have been able to gather regarding
the transaction or the checkwriter. Please make sure that you decipher any trade
jargon or stock numbers so that we can understand in common terms what was stolen.
If you made attempts to collect the check before bringing it to the District Attorney's
Office, it is extremely important that such attempts be documented in as much detail
as you remember. It may be some time before the defendant is arrested. The notes
you submit to us can be used at that time to refresh your memory before you testify
at the defendant's trial.
- Submitting the
case. The materials mentioned above should be
brought to our office. Unless it is impractical for you
to come in person, we prefer that you bring the materials in rather than mailing
them. If you appear in person, we can rapidly review the documents for errors and
avoid delays caused by our having to send the documents back to you for more information.
Our add is:
Check Fraud Division
1201 Franklin
Houston, Texas 77002
Once a complaint is filed with this office, the checkwriter is
indexed and a file jacket is prepared. Your forms will receive a cursory inspection
at this time to spot glaring errors. For most cases a grand jury subpoena will be
prepared in order to obtain bank records of the account on which the check was drawn.
It is important that we inspect signature documents and monthly statements of the
account around the time the check was written. If you took a driver's license or
identification number, we will check to see who is the owner of that number according
to official records. Once all preliminary documentation is collected, an employee
of the Check Fraud Division will look carefully at the documents you submitted and
determine whether all elements of theft can be met with the information on hand.
If not, the employee will take steps to obtain the necessary documents or call you
if further information from you is necessary. Sometimes we send the checkwriter
a notice if the checkwriter has no local criminal record. Many times, however, the
checkwriter receives no further notice of our investigation.
When the case is ready to file, the Check Fraud employee will
organize the information and charging documents will be prepared. In the case of
a misdemeanor theft (generally, the value of the merchandise or service stolen is
less than $1500.00), a probable cause statement will be prepared also which tells
the judge why we believe the crime was committed by the particular individual identified
in the charging documents. The case will be presented to a County Court Judge for
issuance of arrest documents if he/she is convinced by the probable cause statement.
If the merchandise or service stolen, however, exceeds $1500.00 (checks received
prior to September 1, 1994, if the amount exceeds $750.00) or includes
a firearm, cattle, horses, sheep or exotic animals, the case will normally be prepared
as a felony. Once charging documents are prepared in a felony case the case will
be presented to the Grand Jury by the Chief of the Check Fraud Division. You will
be notified if the Grand Jury wishes to speak with you. If the Grand Jury indicts
the case arresting documents will issue.
Once arrest documents issue, the Harris County Sheriff's Office
will take over in arresting the defendant. We will send you a letter once arrest
documents issue. We cannot take further action until the defendant is arrested and
the case appears on the court docket. Assistant District Attorneys assigned to the
various misdemeanor courts will prosecute the cases once the misdemeanor is set
for court appearance. John Boone, Chief of the Check Fraud Division, personally
prosecutes felony cases.
We will attempt to notify you of all significant occurrences regarding
the complaint you filed and the resulting case if you keep us apprised of your current
address and telephone number . Keep in mind, though, that it
generally takes us two to four months to investigate and
file a misdemeanor case and nine to twelve months to investigate and present to
the Grand Jury a felony case. Problems with incomplete or inaccurate complaint forms
or in obtaining information or bank records will slow the process. If you have not
heard from us in the appropriate time you may contact us via email at Check Fraud or by phone
at 713-755-7885.
Never accept a check without checking the ID of the person signing
the check. Always be sure to compare the picture on the ID of the checkwriter to
the person standing in front of you offering the check as payment. Never allow the
checkwriter to tell you the ID number, always look at it yourself and record it
carefully. If you file a complaint on the case with the District Attorney's Check
Fraud Division, you will be required to swear that the person who stood before you
was the same person whose ID number you recorded.
Several banks in Harris County have reduced their losses to bad
checks by asking check cashers to provide a thumb print when cashing a check. The
print is inkless, and the equipment is inexpensive and readily available from several
vendors. You can contact your bank for the names of the companies providing such
products or feel free to contact us for more information as to how the practice
can limit your exposure to losses from certain types of bad checks.
What you need to do if you've been accused of writing a bad check
will depend on a number of factors. The following list includes most situations
in which you might find yourself if you've been accused of a theft involving a check.
- You've been arrested on a theft charge involving a check.
You must appear at your court setting. You may, if you choose,
hire an attorney to represent you. If you want to hire an attorney but you are unable
to afford to hire one, you will need to talk with the court when you appear there.
If you wish to make restitution, you may contact the Check Fraud Division once your
bond is posted to find out how much you owe. You should call
713-755-7886 first to get exact amounts of each money order
or cashier's check and you can bring the restitution payment to the Check Fraud
Division at 1201 Franklin. Paying restitution will not make the case go away
but it will provide you with receipts to show the Assistant District Attorney in
the Court as well as the judge that you have already paid the restitution.
-
You think an arrest warrant has been issued in your name.
First, you must alleviate your fugitive status
by posting a bond either by posting a bond yourself or by hiring a bondsperson to
post your bond for you. You should turn yourself in to the Harris County Sheriff's
Department if you are unable to post a bond. In either case, until you have alleviated
your fugitive status, we cannot release any information to you regarding the case
or the check. You must appear at your court setting. You may, if you choose, hire
an attorney to represent you. If you want to hire an attorney but you are unable
to afford to hire one, you will need to talk with the court when you appear there.
If you wish to make restitution, you may contact the Check Fraud Division once your
bond is posted to find out how much you owe. You should call
713-755-7886 first to get exact amounts of each money order
or cashier's check and you can bring the restitution payment to the Check Fraud
Division at 1201 Franklin. Paying restitution will not make the case go away
but it will provide you with receipts to show the Assistant District Attorney in
the Court as well as the judge that you have already paid the restitution.
-
You got a letter from us.If
you wrote the check, you should call us immediately or bring in or send in the restitution
according to the directions on the letter. Please note that the letter gives
you 10 days only. The case may well be filed at the end of the 10 day period.
If you did not write the check, you must submit copies of forgery affidavits, police
reports, statements, and any other information you have that might inform us about
the situation. That might include handwriting samples, witness statements, a copy
of your driver's license or id, etc. Please include a telephone number and/or address
where we might reach you. If we are unable to establish the case as a probable forgery,
we may need to contact you for further information. Merely, sending in a forgery
affidavit will rarely convince us that the check is a forgery. The notarization
is a verification for the fact that the notary was satisfied and vouches for the
fact that you signed the affidavit--not for the truth of the affidavit itself!
-
You wrote a check to someone and you know the check was
returned by the bank unpaid yet you have received no notice from the merchant.
Call the merchant immediately. You can save yourself
a lot of trouble by taking care of the problem before a complaint is filed.
-
Someone is forging your name on checks. You should contact your bank in order to determine what procedures
you need to follow with them and contact the police agency with jurisdiction and
make a report. Whenever you receive notification from a merchant that a check in
your name has been dishonored, you should contact the merchant and explain the situation.
If a complaint is filed with this office, you should contact us directly. You may
submit copies of forgery affidavits, police reports, statements, and any other information
you have that might inform us about the situation. That might include handwriting
samples, witness statements, a copy of your driver's license or id, etc. Please
include a telephone number and/or address where we might reach you. If we are unable
to establish the case as a probable forgery, we may need to contact you for further
information. Merely, sending in a forgery affidavit will rarely convince us that
the check is a forgery. The notarization is a verification for the fact that the
notary was satisfied and vouches for the fact that you signed the affidavit--not
for the truth of the affidavit itself!
-
Someone is using your driver's license number to pass checks.
Unless the person is also signing your name or a name you have used in the past,
we will not be able to help you. It may be that the person randomly chose your number
by altering his/her own license or that the person obtained your number somehow
and copied it. In either case you will need to contact the Department of Public
Safety to see what steps you must take in order to change your number. You may also
wish to see an attorney if you are denied checkwriting privileges at stores merely
because of the common driver's license number being used. In any case, we do not
assume that you are the person who is writing the checks merely because your driver's
license number is being used and would refrain from filing cases against you based
only on the license number.
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