A Thorough Overview of Defenses to Deposit Account Fraud in Georgia
Deposit account fraud, also known as check fraud or bad check fraud, is a serious offense in Georgia. Under O.C.G.A. § 16-9-20, deposit account fraud occurs when a person issues a check or other form of payment from an account that does not have sufficient funds to cover it, or when the individual intentionally deceives the recipient about the availability of funds.
However, being accused of deposit account fraud doesn’t automatically mean a conviction is certain. There are numerous defenses available to challenge such charges.
As Georgia deposit account fraud lawyers, we wanted to write a guide to explore 60 defenses that may be used to challenge a deposit account fraud charge.
Whether you’re facing allegations related to writing a bad check, insufficient funds, or misrepresentation, these defenses will help you understand your legal options and protect your rights.
1. Lack of Intent to Defraud
Defense Explanation: Deposit account fraud requires fraudulent intent. If the defendant did not intend to defraud the recipient of the check, it may be possible to argue that there was no intent to deceive.
Analysis: In order to be convicted of deposit account fraud, the prosecution must prove that the defendant’s actions were intentional and aimed at deceiving the recipient for personal gain. If the defendant had no intent to defraud, the case may not meet the criteria for fraud.
2. Insufficient Evidence of Fraudulent Intent
Defense Explanation: If the prosecution cannot present sufficient evidence to prove that the defendant intended to defraud anyone, the charges may be dismissed.
Analysis: Lack of intent is crucial to the case. For example, if the defendant wrote a check unknowingly, or due to a misunderstanding, the absence of fraudulent intent could serve as a strong defense.
3. Bank Error
Defense Explanation: A bank error could cause a check to be returned due to insufficient funds. If the defendant can show that the bank made an error, this can be a strong defense.
Analysis: If the account had sufficient funds at the time the check was written, but the bank made an error in processing, this defense can protect the defendant from criminal liability. It is crucial to have documentation from the bank proving the error.
4. Technical Mistake
Defense Explanation: A technical mistake, such as an incorrect account number or a typo on the check, could cause a check to bounce. If the mistake was inadvertent and not intentional, it may serve as a defense.
Analysis: If a defendant can show that the check was accidentally miswritten or that a clerical mistake was made without fraudulent intent, the case may not meet the criteria for fraud.
5. Insufficient Funds Due to Pending Deposits
Defense Explanation: Sometimes a check may be returned due to insufficient funds, but the funds were temporarily unavailable due to pending deposits that were about to clear.
Analysis: If the defendant can demonstrate that funds were in transit (e.g., pending deposit) and the check was written in good faith, it can argue that there was no intent to defraud, and the charge should be reduced or dismissed.
6. Lack of Knowledge of Insufficient Funds
Defense Explanation: If the defendant didn’t know their account lacked sufficient funds when writing the check, this could be a defense.
Analysis: If the defendant did not intentionally write a check knowing there were insufficient funds in their account, they can argue that the fraud charge should be dismissed. This is particularly relevant in cases where the defendant’s account had a history of positive balances and the insufficient funds was an isolated incident.
7. Bank Failure to Notify the Defendant
Defense Explanation: If the bank failed to notify the defendant about an overdraft or insufficient funds, this could be a defense.
Analysis: Banks are legally obligated to inform account holders about insufficient funds. If they fail to do so, the defendant could argue that they were unaware of the issue and did not have an opportunity to correct it.
8. Payment Was Made After Check Was Returned
Defense Explanation: If the defendant makes payment after the check was returned for insufficient funds, it may be possible to argue that there was no fraudulent intent, as the debt was later settled.
Analysis: This defense can be powerful if the defendant promptly rectifies the situation by paying the debt. The fact that the check was returned does not always mean fraud occurred, especially if the situation is corrected before legal action is taken.
9. No Knowledge of Insufficient Funds When Writing the Check
Defense Explanation: If the defendant wrote the check without knowing there were insufficient funds in the account, they may not be guilty of fraud.
Analysis: This defense is effective if the defendant can show they had no reason to believe the account lacked funds. In some cases, individuals might not have checked their account balance and believed sufficient funds were available.
10. Honest Belief in Available Funds
Defense Explanation: A defendant may have believed in good faith that sufficient funds were available in their account at the time the check was written, which could serve as a valid defense.
Analysis: If the defendant believed their account had sufficient funds and there was no reason to doubt it, the lack of fraudulent intent may lead to a dismissal of the charges.
11. Invalid or Fraudulent Bank Account
Defense Explanation: If the bank account in question was fraudulent or did not belong to the defendant, this could be a valid defense.
Analysis: A defendant may not be guilty if they were misled by an imposter or someone who used a fake or stolen identity to create an account. This would refute the defendant’s knowledge or intent to defraud.
12. Payment Arrangements Made
Defense Explanation: If the defendant has made arrangements to repay the recipient or the bank for the insufficient funds, they may be able to use this as a defense.
Analysis: A defendant who is attempting to resolve the issue by repaying the check may be able to argue that the charge should be reduced or dismissed.
13. Forged Signature
Defense Explanation: A forged signature could mean that the defendant was not responsible for writing the check in question.
Analysis: If the defendant’s signature was forged, they could argue that they are not guilty of the crime of fraud. This defense requires evidence of forgery.
14. Victim Had Knowledge of Insufficient Funds
Defense Explanation: If the recipient of the check knew or should have known the check was being written from an account with insufficient funds, they may bear some responsibility for the situation.
Analysis: This defense may be applicable if there is evidence that the person who received the check was complicit in or aware of the insufficient funds but still accepted the check.
15. Lack of Criminal Intent or Knowledge
Defense Explanation: A defendant may argue that they did not have the required criminal intent, as they lacked knowledge that the check would not clear due to insufficient funds.
Analysis: Under Georgia law, fraud requires both an act of deception and criminal intent. A lack of knowledge about insufficient funds can be a valid defense if the defendant didn’t intend to deceive anyone.
16. Timing of Check
Defense Explanation: The timing of when the check was written and when it was processed may impact the fraud case.
Analysis: If the check was written when the funds were available but the check was not processed immediately, and the funds became insufficient afterward, this could support the defendant's claim that there was no intent to defraud.
17. Mistake of Fact
Defense Explanation: The defendant might argue that there was a mistake of fact, such as believing they had sufficient funds when they did not.
Analysis: This defense may apply if the defendant had no reason to suspect that the account lacked sufficient funds and was simply mistaken in their belief.
18. Insufficient Evidence of Defrauded Party
Defense Explanation: If the prosecution cannot demonstrate that a victim was defrauded, the charge of deposit account fraud may be weakened or dismissed.
Analysis: The prosecution must prove that someone was deceived by the defendant’s actions. If the recipient of the check did not suffer any harm, this can serve as a defense.
19. Coercion or Duress
Defense Explanation: If the defendant was forced to write a bad check under duress or threat of harm, they may have a valid defense.
Analysis: If the defendant can prove they wrote the check because they were coerced, it could prevent a conviction for fraud.
20. Use of the Check in a Legal or Authorized Manner
Defense Explanation: If the check was used for an authorized purpose, such as fulfilling a debt or obligation, the defendant may be able to argue that the check was not fraudulent.
Analysis: This defense relies on showing that the use of the check was legitimate and not intended to defraud.
21. Lack of Criminal Intent Due to Mental Illness
Defense Explanation: If the defendant was suffering from a mental illness at the time of writing the check, they may not have the criminal intent necessary to commit fraud.
Analysis: A mental health defense may be valid if the defendant’s capacity to understand the nature of their actions was impaired.
22. Absence of Evidence to Prove the Check Was Written by the Defendant
Defense Explanation: If the prosecution cannot provide evidence linking the defendant to the check (e.g., handwriting analysis or surveillance footage), the case may not be strong.
Analysis: If the defendant’s involvement in the transaction cannot be established, they may not be convicted of fraud.
23. Unlawful Search and Seizure
Defense Explanation: If evidence of the bad check was obtained through unlawful means (e.g., without a warrant), the defendant may argue that it should be excluded.
Analysis: Evidence obtained illegally cannot be used to support criminal charges, including deposit account fraud.
24. Statute of Limitations
Defense Explanation: If the statute of limitations for bringing charges has expired, the case may be dismissed.
Analysis: In Georgia, charges of deposit account fraud must be brought within a certain timeframe. If that period has passed, the charges may be barred.
25. Payment in Full After Issuing the Check
Defense Explanation: If the defendant paid the amount owed after the check was issued, they may not be guilty of fraud.
Analysis: This defense hinges on the idea that the defendant took prompt action to settle the debt, which can indicate a lack of fraudulent intent.
26. False Accusation
Defense Explanation: A defendant may argue that they are the victim of a false accusation or that the check was never written by them.
Analysis: This defense can be backed by evidence such as alibi testimony, forensic analysis, or lack of credible evidence.
27. No Defrauded Party or Harm
Defense Explanation: If no party was defrauded or harmed by the check, the charge of fraud may not stand.
Analysis: Without a victim who suffered harm, the case for fraud may not hold up.
28. Fraudulent Activities by the Recipient
Defense Explanation: If the recipient was involved in fraudulent activities related to the transaction, they may bear some responsibility.
Analysis: This defense points to the recipient’s actions as contributing to or causing the fraudulent situation.
29. Delayed Payment
Defense Explanation: If the defendant was attempting to pay the debt after the check was returned, they could argue they were trying to correct the situation.
Analysis: Showing that the defendant was trying to make amends could be used to mitigate the charge or prove a lack of fraudulent intent.
30. Unauthorized Use of Checkbook or Account
Defense Explanation: If someone else used the defendant’s checkbook or bank account without their permission, the defendant could argue that they are not responsible for the fraudulent activity.
Analysis: This defense could be supported by evidence showing that someone else was responsible for the fraud.
31. Failure of Contract or Agreement
Defense Explanation: If the check was issued under the belief that the recipient had failed to fulfill their part of a contract or agreement, the defendant may argue that the check was not fraudulent.
Analysis: This defense involves demonstrating that the defendant acted in accordance with their understanding of an agreement.
32. No Defrauded Party
Defense Explanation: If the prosecution cannot establish a clear victim who suffered from the alleged fraud, the case may be dismissed.
Analysis: In fraud cases, a victim who was defrauded must be proven. If the alleged victim cannot be clearly identified, it weakens the case.
33. Fraudulent Activity by a Third Party
Defense Explanation: The defendant may argue that they were not responsible for the fraud, but rather that someone else committed the fraudulent act.
Analysis: This defense may be valid if there is credible evidence suggesting a third party was involved.
34. Insufficient Evidence of Defendant’s Involvement
Defense Explanation: If there is insufficient evidence linking the defendant directly to the forged check, they may not be convicted.
Analysis: For a conviction, the prosecution must prove beyond a reasonable doubt that the defendant wrote or was involved in the fraudulent check.
35. Violation of Constitutional Rights
Defense Explanation: If the defendant’s constitutional rights were violated during the investigation or arrest, evidence may be inadmissible.
Analysis: Unlawfully obtained evidence or wrongful arrests can significantly impact the prosecution's case, potentially leading to a dismissal.
36. Pre-existing Financial Hardship
Defense Explanation: The defendant might argue that financial difficulties or unforeseen hardships led to insufficient funds, and that there was no intention to deceive the recipient.
Analysis: If the defendant can show that the check was written under the belief that funds would become available shortly, due to a temporary financial issue, it may demonstrate a lack of fraudulent intent.
37. No Criminal History or Record of Fraud
Defense Explanation: A defendant’s clean criminal history, particularly regarding fraudulent activities, may be used as evidence to show that the bad check was an isolated mistake.
Analysis: The absence of any prior fraudulent behavior can help refute the argument that the defendant had criminal intent when writing the check.
38. Improper Notice of Return
Defense Explanation: Under Georgia law, if the defendant was not properly notified that the check was returned, this may weaken the fraud case against them.
Analysis: If the bank or creditor failed to notify the defendant promptly, the defendant may not have been given an opportunity to remedy the situation before legal action was taken.
39. Non-Fraudulent Business Transaction
Defense Explanation: The check was issued as part of a legitimate business transaction and not for fraudulent purposes. The defendant may have been unaware of technicalities or misunderstandings about payment due dates or balance availability.
Analysis: This defense may apply if the check was part of a business agreement and the defendant was acting in good faith, expecting funds to be available by the time the check was processed.
40. Bank Failure to Process Payment Correctly
Defense Explanation: Sometimes banks fail to process payments or deposits accurately, leading to insufficient funds even if the money was available in the account.
Analysis: If the defendant can prove that the bank mishandled or delayed processing payments, leading to the insufficient funds, they may argue that fraud was not the cause of the returned check.
41. Invalid Account Information
Defense Explanation: The defendant may claim that their account information, such as routing or account numbers, were entered incorrectly due to human error.
Analysis: A simple mistake like incorrect account information may cause a check to bounce, but it does not equate to fraud if it was an honest error with no fraudulent intent.
42. Involuntary Action Due to Illness or Mental Impairment
Defense Explanation: If the defendant was mentally impaired, ill, or intoxicated at the time of writing the check, they may not have been in a mental state to form the intent necessary for fraud.
Analysis: Mental illness or impairment, especially if diagnosed, can serve as a defense if it can be shown that the defendant lacked the ability to understand the nature of their actions.
43. Lack of Direct Evidence Linking Defendant to the Check
Defense Explanation: If the prosecution cannot directly tie the defendant to writing the check, or there is no concrete evidence (e.g., handwriting analysis, surveillance footage), the case may lack merit.
Analysis: If the defendant can challenge the evidence connecting them to the check, this could lead to the dismissal of charges due to insufficient proof.
44. Fraudulent Activity by a Co-Defendant
Defense Explanation: If the defendant is accused of fraud alongside another individual, the defendant may argue that the co-defendant was the person responsible for the fraudulent activity.
Analysis: This defense can be useful if there is evidence that another person played a more significant role in writing or processing the bad check.
45. Lapsed Statute of Limitations for Collection
Defense Explanation: If the check was written too far in the past and legal proceedings were not initiated in time, the statute of limitations for criminal prosecution may bar the case.
Analysis: Under Georgia law, there is a time limit for prosecuting deposit account fraud. If this time has passed, the charges should be dismissed based on the statute of limitations.
46. Payment Was Delayed but Made in Full
Defense Explanation: The defendant may argue that, although the check was initially returned, they promptly made full payment after being informed of the insufficient funds.
Analysis: Paying the full amount owed, especially within a reasonable time frame after the check was returned, could show that there was no intent to defraud and may mitigate the severity of the charges.
47. Unclear Terms of Transaction
Defense Explanation: If the terms of the transaction (e.g., payment deadlines, amounts owed) were unclear or ambiguous, the defendant could argue they acted in good faith without fraudulent intent.
Analysis: This defense is relevant in situations where a misunderstanding of the terms of an agreement led to the insufficient funds, with no fraudulent intent on the part of the defendant.
48. Unauthorized Withdrawal or Use of Account
Defense Explanation: The defendant may argue that their account was compromised, and someone else withdrew money or wrote the check without their permission.
Analysis: If the defendant can show that their account information was stolen or used by someone else, this can absolve them of fraud, as they did not authorize the transaction.
49. No Documented Harm or Loss
Defense Explanation: If the prosecution cannot show any concrete harm or financial loss to the victim due to the bad check, it may weaken the fraud charge.
Analysis: The lack of documented harm or loss is a valid defense. If no one suffered as a result of the insufficient check, it may not satisfy the elements required for a fraud conviction.
50. Defendant Was Misled by Third Parties
Defense Explanation: The defendant may claim that they were misled by a third party, such as an accountant, business partner, or bank employee, who caused them to believe sufficient funds were available when they were not.
Analysis: This defense involves proving that the defendant relied on the advice or actions of a third party, and that any fraudulent activity was the result of misinformation provided by others.
51. Creditor Did Not Follow Legal Procedure
Defense Explanation: If the creditor did not follow proper legal procedures for notifying the defendant or pursuing debt recovery, the defendant may argue that the fraud charges are invalid.
Analysis: If the creditor failed to comply with debt collection rules, such as providing proper notice of a bounced check, the case may be weakened, and the charges could be dismissed.
52. Unauthorized Use of Credit Card or Electronic Funds
Defense Explanation: If the deposit account fraud charge involves an electronic funds transfer, the defendant may argue that their credit card or account details were fraudulently used by another person without their permission.
Analysis: If a third party used the defendant’s card or account for fraudulent transactions, this may shift the responsibility away from the defendant, especially if there is evidence showing unauthorized use.
53. Mistaken Belief That Account Was Active
Defense Explanation: The defendant might argue that they mistakenly believed the account was open and active, even if it had been closed or frozen.
Analysis: In cases where the defendant had an honest belief that their account was in good standing, this defense could demonstrate that there was no intent to defraud.
54. Lack of Specific Knowledge of Account Status
Defense Explanation: The defendant may not have been aware of the specific status of their account, such as an overdraft limit, insufficient funds, or frozen assets, which led to the check being returned.
Analysis: If the defendant lacked direct knowledge of the account’s condition due to reliance on someone else (e.g., an accountant), they might argue that they did not act with criminal intent.
55. Evidence of Payment to Resolve the Issue
Defense Explanation: If the defendant made a payment toward the check after it was returned or cleared the balance, this could demonstrate a lack of fraudulent intent.
Analysis: This defense is particularly effective if the defendant made every effort to resolve the issue promptly and show that there was no malicious or criminal intent behind the bad check.
56. Involuntary Payment
Defense Explanation: The defendant may argue that the payment was made under duress or as a result of external pressures, and thus the check issued was not a criminal act but part of a situation they couldn’t control.
Analysis: If the defendant can prove they were coerced into issuing the check, it may absolve them of any criminal liability associated with the deposit account fraud.
57. Invalid Claims of Fraudulent Intent
Defense Explanation: The prosecution must prove fraudulent intent beyond a reasonable doubt. If they fail to meet this burden of proof, the charge may not be sustainable.
Analysis: In deposit account fraud cases, the prosecution’s failure to demonstrate intent to defraud is a strong defense. If the defendant’s actions were benign or mistaken, and no intent to harm was established, the charge should be dismissed.
58. Fraudulent Actions Committed by a Business Entity
Defense Explanation: If the check was issued by a business account, the defendant may argue that the fraudulent activity was committed by the business entity or a third-party employee, not by them personally.
Analysis: If the defendant is an owner or manager of a business, they may not be directly involved in writing bad checks, especially if the fraud was committed by an employee or another agent of the business. This defense could demonstrate that the defendant had no knowledge of or involvement in the fraudulent activity.
59. Improper Closure or Suspension of Account
Defense Explanation: The defendant may argue that the account was improperly closed or suspended by the bank, and they were unaware of this action when the check was written.
Analysis: If the bank closed or suspended the defendant’s account without proper notice, the defendant could argue that they were not aware that there were insufficient funds or that the account was inactive at the time the check was written.
60. Payment Delay Due to Bank Processing Errors
Defense Explanation: The defendant may argue that the payment was delayed due to bank processing errors, causing the check to be returned for insufficient funds even though the defendant had enough funds in their account at the time.
Analysis: This defense is relevant if the defendant can provide evidence that their account had sufficient funds when the check was written but that the payment was delayed or mishandled by the bank, leading to insufficient funds being recorded when the check was processed.
Georgia Deposit Account Fraud Attorney Near Me
Defending against a charge of deposit account fraud, or writing a bad check, in Georgia involves examining the circumstances surrounding the case, gathering relevant evidence, and identifying potential legal defenses.
By utilizing one or more of these defenses, a defendant may successfully challenge the charges or mitigate penalties.
If you or someone you know is facing charges for deposit account fraud in Georgia, consulting with an experienced criminal defense attorney at The Sherman Law Group is crucial for securing the best possible outcome.