Agenda - Council - 05/08/1990 - Laserfiche WebLink

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I I I I I I I I I I I ! I I i I I i Proof that, at the time of the issuance, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within five business days after mailing of notice of non-payment or dishonor as provided in this subdivision; or o Proof that, when the presentment was made within reasonable time, the issuer did not have sufficient funds or credit with the drawee and that the issuer failed to pay the check within five business days after mailing of notice of non-payment or dishonor is provided as provided in this subdivision ..... Subdivision 5 Exceptions. This section does not apply to a postdated check or to a check given for a past consideration, except a payroll check or a check issued to a fund for employee benefits. The apparent fact~ of the case are as follows. Throughout much of 1989, Mr. Kozitza rented an apartment from Mr. Boschee. On October 24, 1989, Mr. Kozitza issued Mr. Boschee two checks, each for $410. One of these checks was to pay October rent which was overdue. The other check was given, topay.for, the November rent. These checks were held by Mr. Boschee until November 13, 1989. At the time he presented these checks to the bank for payment, Mr. Kozitza had $648.84 in his account. One of the rent checks was paid, the other returned. A review of Mr. Kozitza's bank records indicates that he had sufficient funds to pay both of these checks on the day they were issued. In addition, he had sufficient funds to pay the checks up until November 9, 1989. At the end of November, Mr. Kozitza moved out of the apartment. A walk- through with Mr. Boschee was conducted, and an agreement was reached as to the check which had been returned and to various items of damage which had occurred in the apartment. It is not clear what the actual agreement was. Mr. Boschee claims that there were total damages of $216 sustained in the apartment, and that, in addition, Mr. Kozitza owed him $425 in late charges from previous months when rent was not paid on time. Mr. Boschee claims that these monies were owed to him by Mr. Kozitza in addition to the $410 for the check which was returned. The total amount claimed by Mr. Boschee is $1,051. Mr. Kozitza, on the other hand, claims that he owed Mr. Boschee $267.92 for late charges and damage done to the apartment. He claims that this amount included monies that would be applied towards payment of the returned check. Mr. Kozitza claims that the agreement was that he would return a smoke detector and pay $210. Mr. Boschee would retain the $250 damage deposit. What is not disputed is that Mr. Boschee did retain a $250 damage deposit. What is also not disputed is that Mr. Kozitza sent, by Certified Mail, a money order for $210. Mr. Kozitza claims that the $250 damage deposit, plus the $210 money order, brought him to a point where he was paid in full of any monies owed to Mr. Boschee. Mr. Boschee sent Mr. Kozitza a letter which acknowledges receipt of $460 (damage deposit and money order) but demanding the balance of $591. As the above-quoted statute indicates, it will be necessary to prove that Mr. Kozitza intended the check not be paid. The statute lists three types of proof which, if a court or jury found guilt, would sustain the conviction. The first two alternatives quoted above do not apply to this case. It is clear that Mr. Kozitza did, indeed, have an account with the bank on which the check was issued. It is also clear that Mr. Kozitza did have sufficient funds at the time the check was written. The possibility remaining is that Mr. Kozitza did not have sufficient funds to pay the check when the check was presented and that the presentment was within a reasonable time. In addition, there would have to be proof that Mr. Kozitza did not pay the check within five days after mailing of notice of non-payment.