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bounced cheque

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1 bounced cheque on Fri Oct 01, 2010 4:30 pm

razzy


Arresto Menor
hello. can i please ask for some advise on the matter:

my uncle was paid a cheque and when it was deposited, it turned out the account has been closed. I called up the bank branch (in Makati) concerned and they said it's been closed for a while now. They still have the account holder's info on file but they can't release it (understandably due to bank secrecy laws).

the problem that makes this a little more complicated is that the person who issued the cheque is nowhere to be found and now my uncle's sure the name given is a fake. so basically, there's no physical person to run after, and despite the gullibility of my uncle in receiving the cheque in the first place, a bouncing cheque was issued and there are the legitimate bank info which i hope can help trace this person/real identity.

my questions are:
1. can he file in the first place with only an account number to "identify" this person/persons?
2. where should my uncle file estafa/bp22, what law agency? (police, nbi, barangay where the incident happened?) and does he need a lawyer to file?
3. can this agency be the one to request from the bank branch the needed info?
4. the amount's 15,000-- will the cost, if any, of the whole procedure be worth it or cost more than the amount concerned?
5. if the account holder turns out to be an "inc." not a sole prop/single individual, dissolved or not, is there any way to get the money back?
6. if that cheque wasn't from the real owner (let's say it was stolen by this scammer) is the real account holder liable?


TIA!!

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2 Re: bounced cheque on Sun Oct 03, 2010 12:25 am

attyLLL


moderator
you can try filing a complaint with the nbi; they have subpoena powers and can direct the bank to reveal the information.

if it is a company, the person who signed the check is the one liable for bp 22.

if it was not the account holder who signed the check, then the account holder is not liable.


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3 Re: bounced cheque on Sun Oct 03, 2010 6:06 pm

razzy


Arresto Menor
attyLLL, thanks very much for the reply.
3 more questions please:

1. just to understand the process better, is the subpoena power intrinsic to the nbi, or they'll be filing a court order on our case's behalf? i was advised by a lot of bank managers that it's only the courts who can do this, no other agency can compel banks to divulge info, and to get one would require us to get a lawyer and lengthy court hearings that costs money.

2. let's say we get the info from the bank and the account holder's not the signatory (and you mentioned therefore isn't liable) and he didn't report those cheques missing to the bank, shouldn't the account holder still be liable somehow? otherwise, what's stopping anyone with a checkbook to keep issuing cheques and just put a wrong signature?

3.in connection to what you mentioned "
if it is a company, the person who signed the check is the one liable for bp 22."--this is regarding a different matter--
there's this corporation i'm listed as a part owner of but for very very very very little share (i was included just to meet the SEC's minimum no. of partners requirement). one of the 2 major owners, who's a co-signatory to the company's cheques, is requesting me to be the co-signatory instead (of him) since he's abroad quite a lot and this causes problems with the release of payments. he said he'll draw up some authorization powers so i can sign for him. i totally do not have any involvement in the company's operations at all, zero financial monitoring... i considered agreeing to it just to help out as a personal favor, but now that you mentioned what you did, that freaked me out in case the cheque i co-sign gets into this kind of trouble or more. do i understand correctly that i will be criminally liable if the cheque bounces for whatever reason?? is this a dangerous position i am putting myself in, to just be a routine signatory?

thanks again.

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4 Re: bounced cheque on Tue Oct 05, 2010 10:56 am

attyLLL


moderator
nbi is granted subpoena powers by law, no court order required.

liability of someone who lost checks depends on a many circumstances; you will have to prove that they were negligent in allowing someone else to use the checks.

3. yes, you will be the one criminally liable if the check bounces. it's up to you to weigh the risk.


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5 Re: bounced cheque on Tue Oct 05, 2010 12:03 pm

razzy


Arresto Menor
"3. yes, you will be the one criminally liable if the check bounces. it's up to you to weigh the risk."

oh! personally liable?? there's no distinction between me-my own person and me-acting-as-a-representative of the company?

I'm quite shocked because that's not how it was explained to me and the papers are about to be drawn up anytime now (not to imply he's lying, but maybe ignorant of the real repercussions). i was told that the document authorizing me to sign would also protect me from personal liability and pass the burden to the company because it will, in effect, state that i am merely a routine signatory on someone's behalf.

in this case, i guess i won't be volunteering anymore if there's a risk regardless how small. i was more concerned because i'm listed as a partner regardless how ridiculously small my %shares are and then i'll be signing the cheques.Sad

do I understand this right: regardless of my ownership status with the company and regardless of whatever internal papers they create to supposedly to protect/define my role, to just sign the cheques already makes me personally liable for them, correct?


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6 Re: bounced cheque on Tue Oct 05, 2010 1:07 pm

attyLLL


moderator
bp 22

Section 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.


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7 Re: bounced cheque on Tue Oct 05, 2010 1:39 pm

razzy


Arresto Menor
Very grateful for having found this forum and for your generosity. thank you very much for your help, attylll.

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8 Re: bounced cheque on Tue Oct 05, 2010 1:49 pm

bigbrother


Arresto Menor
hi, good day...

my sister might be facing an estafa and BP 22 case for issuing unfunded cheques...amounting to 2M plus

Following are my questions:
1. what exactly are the procedures of filing such case?
2. are bounced cheque enough evidence to be charged by bp 22?
3. what will happen if the case is filed in the court?
4. they are saying that while the case is being heard, my sister could not bail? is it true?
5. now, while the case is being heard and we'll be able to pay total amount of the check, would it be dismiss (the case)?

i hope i've asked those questions right...more power and God bless ...

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9 Re: bounced cheque on Tue Oct 05, 2010 10:59 pm

attyLLL


moderator
did all the checks bounce? not even one cleared?

1) to file a case for bp 22, the check should have been deposited and dishonored, then notice given to the issuer. a complaint affidavit is drawn up and filed with the prosecutor's office.

2) a check marked as DAIF or closed account or other mark showing that it is dishonored is normally sufficient to for a case of bp 22 to prosper at the prosecutor level.

3) it will be first filed in the prosecutor's office where you will be given a chance to file your counter affidavit.

4) if it is estafa that is filed and the prosecutor finds probable cause of fraudulent intent then with 2m it will not be bailable, but you can still file a motion for bail.

5) don't pay without an agreement under the Philippine Mediation Center that the case will be dismissed. note though that payment will not be a matter of right, the complainant has to agree. but likely they will. good luck.


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10 Re: bounced cheque on Wed Oct 06, 2010 8:29 pm

bigbrother


Arresto Menor
hi im bigbrother again ...thank for your response...

yes all cheques bounced ....

I still have some questions to ask:

1)we have talk lately with the person whom my sister had issued cheque and bounced, actually she's kind...she wants my ate to be given time to produce money...and suggested that she will execute a letter of desistance but my ate has to issue again another cheques, say 3, equivalent to the amount of the 7 cheques that bounced and these new cheques have to be dated Oct, Nov, Dec 2010.....then if ate could not provide funds for these new cheques, she will pursue similar case by Jan 2011...I THINK IT IS A VERY KIND AND EMPATHETIC ACT, ISN'T IT? COULD WE AGREE RIGHT AWAY WITH THIS?
2)another thing, you've said that we could still file for a motion for bail, WHAT BASICALLY ARE THE REASONS WE COULD USE SO THIS MOTION FOR BAIL WILL BE CONSIDERED?
3)btw, now if the case prosper at the prosecutor's office...WHAT WOULD HAPPEN NEXT? IS WARRANT OF ARREST FOLLOW IMMEDIATELY?

thank you very much and hope to hear from you again...more power

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11 Re: bounced cheque on Wed Oct 06, 2010 11:07 pm

attyLLL


moderator
1) well, if you think you can fund these checks, then it will be a very good way to end the case. it will effectively forestall the filing of the case, but if they bounce again then at least you'll be facing only three counts instead of 7.

2)filing a motion for bail is a matter of right. for the motion to be defeated, the prosecution has to prove that evidence of guilt is strong. i asked whether any of the checks cleared. if one at least cleared then fraud could be argued against, but with all 7, then a very good reason has to be shown why to negate any allegation there was fraud from the beginning which would lead to estafa and not just bp 22.

3) not immediately, but soon thereafter. the judge will judge review the case so it can be issued within a week from filing of the information.


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12 Re: bounced cheque on Tue Nov 02, 2010 7:58 pm

shanmei


Arresto Menor
good evening po ang estafa po ba ay may desired or bracket na amount bago matawag na estafa??for example the debt amounting to 10,000 pero hindi na nabayaran estafa na po ba yon???

salamat po

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13 Re: bounced cheque on Tue Nov 02, 2010 9:20 pm

attyLLL


moderator
whether estafa was committed is not dependent on the amount,but whether deceit or abuse of confidence used to acquire money or goods.


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14 Re: bounced cheque on Wed Nov 03, 2010 10:21 am

shanmei


Arresto Menor
good morning sir, may mga loan po ako sa bank at nag issue ako ng mga pdc dati nakakapagbayad naman po ako and but sad to say nawalan po ako ng trabaho, so nahinto po iyong pagbabayad ko wala po akong natatanggap na subpoena o kahit anong mga demand letter. pwede po ba na nakarecord na iyon sa nbi pag may record na po sa nbi pati rin po ba sa police clearance meron na rin??salamat po.

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15 Re: bounced cheque on Wed Nov 03, 2010 12:26 pm

attyLLL


moderator
it's difficult to speculate. the better thing to do is to just apply for police and nbi clearance. good luck.


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16 Re: bounced cheque on Sat Jul 20, 2013 12:10 pm

Jovanniramos


Arresto Menor
Gud day po Sir need lang advice for my fathers loan.

Nag loan po cya ng 60k last june 2012 sa isang Lending firm in Makati and hindi po nya nabayaran yung ni loan nya.. bounced lahat yung cheke na issue ng father ko. pero may payment naman po kami na 25k through bank deposits.

yong Lending po sabi nag fi-file nadaw sila ng case sa father ko.. nangugulit na kung aayosin paba daw namin and willing paba kami magbayad kase umabot nadaw sa 129,000 yung amount kasama na interest.

ito po mga questions ko.

1. ano pong process and gaano po katagal nila masampahan ng kaso yong father ko.
2. talaga bang babayaran namin yung 129,000 na amount?
3. ma settle po ba namin to na hindi na umabot sa court.
4. ano po process sa pag file nila ng case, may arrest warrant po ba since 1 year na nakalipas yung loan niya and sabi saken ng lending nag aantay nadaw sila ng resolution. Willing naman po kami ayosin yun pero sa ngayon wala pa kami maibabayad.

salamat po i need your advice po thanks alot.

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17 Re: bounced cheque Today at 4:17 am

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