2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 9 - Forgery and Fraudulent Practices
Article 3 - Illegal Use of Financial Transaction Cards
§ 16-9-33. Financial Transaction Card Fraud

1. A person commits the offense of financial transaction card fraud when, with intent to defraud the issuer; a person or organization providing money, goods, services, or anything else of value; or any other person; or cardholder, such person:
   1. Uses for the purpose of obtaining money, goods, services, or anything else of value:
      1. A financial transaction card obtained or retained or which was received with knowledge that it was obtained or retained in violation of Code Section 16-9-31 or 16-9-32;
      2. A financial transaction card which he or she knows is forged, altered, expired, revoked, or was obtained as a result of a fraudulent application in violation of subsection (d) of this Code section; or
      3. The financial transaction card account number of a financial transaction card which he or she knows has not in fact been issued or is forged, altered, expired, revoked, or was obtained as a result of a fraudulent application in violation of subsection (d) of this Code section;
   2. Obtains money, goods, services, or anything else of value by:
      1. Representing without the consent of the cardholder that he or she is the holder of a specified card;
      2. Presenting the financial transaction card without the authorization or permission of the cardholder or issuer;
      3. Falsely representing that he or she is the holder of a card and such card has not in fact been issued; or
      4. Giving, orally or in writing, a financial transaction card account number to the provider of the money, goods, services, or other thing of value for billing purposes without the authorization or permission of the cardholder or issuer for such use;
   3. Obtains control over a financial transaction card as security for debt;
   4. Deposits into his or her account or any account by means of an automated banking device a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document not his or her lawful or legal property; or
   5. Receives money, goods, services, or anything else of value as a result of a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document having been deposited into an account via an automated banking device, knowing at the time of receipt of the money, goods, services, or item of value that the document so deposited was false, fictitious, forged, altered, or counterfeit or that the above-deposited item was not his lawful or legal property.
2. A person who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a financial transaction card by the cardholder or any agent or employee of such person commits the offense of financial transaction card fraud when, with intent to defraud the issuer or the cardholder, he or she:
   1. Furnishes money, goods, services, or anything else of value upon presentation of a financial transaction card obtained or retained in violation of Code Section 16-9-31 or a financial transaction card which he or she knows is forged, expired, or revoked;
   2. Alters a charge ticket or purchase ticket to reflect a larger amount than that approved by the cardholder; or
   3. Fails to furnish money, goods, services, or anything else of value which he or she represents in writing to the issuer that he or she has furnished.
3. Conviction of the offense of financial transaction card fraud as provided in subsection (a) or (b) of this Code section is punishable as provided in subsection (a) of Code Section 16-9-38 if the value of all money, goods, services, and other things of value furnished in violation of this Code section or if the difference between the value actually furnished and the value represented to the issuer to have been furnished in violation of this Code section does not exceed $100.00 in any six-month period. Conviction of the offense of financial transaction card fraud as provided in subsection (a) or (b) of this Code section is punishable as provided in subsection (b) of Code Section 16-9-38 if such value exceeds $100.00 in any six-month period.
4. A person commits the offense of financial transaction card fraud when, upon application for a financial transaction card to an issuer, he or she knowingly makes or causes to be made a false statement or report relative to his or her name, occupation, employer, financial condition, assets, or liabilities or willfully and substantially overvalues any assets or willfully omits or substantially undervalues any indebtedness for the purpose of influencing the issuer to issue a financial transaction card. Financial transaction card fraud as provided in this subsection is punishable as provided in subsection (b) of Code Section 16-9-38.
5. A cardholder commits the offense of financial transaction card fraud when he or she willfully, knowingly, and with an intent to defraud the issuer; a person or organization providing money, goods, services, or anything else of value; or any other person submits verbally or in writing to the issuer or any other person any false notice or report of the theft, loss, disappearance, or nonreceipt of his or her financial transaction card and personal identification code. Conviction of the offense of financial transaction card fraud as provided in this subsection is punishable as provided in subsection (b) of Code Section 16-9-38.
6. A person authorized by an acquirer to furnish money, goods, services, or anything else of value upon presentation of a financial transaction card or a financial transaction card account number by a cardholder or any agent or employee of such person, who, with intent to defraud the issuer, acquirer, or cardholder, remits to an issuer or acquirer, for payment, a financial transaction card record of a sale, which sale was not made by such person, agent, or employee, commits the offense of financial transaction card fraud. Conviction of the offense of financial transaction card fraud as provided in this subsection shall be punishable as provided in subsection (b) of Code Section 16-9-38.
7. Reserved.
8. For purposes of this Code section, revocation shall be construed to include either notice given in person or notice given in writing to the person to whom the financial transaction card and personal identification code was issued. Notice of revocation shall be immediate when notice is given in person. The sending of a notice in writing by registered or certified mail or statutory overnight delivery in the United States mail, duly stamped and addressed to such person at his or her last address known to the issuer, shall be prima-facie evidence that such notice was duly received after seven days from the date of deposit in the mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone, and Canada, notice shall be presumed to have been received ten days after mailing by registered or certified mail or statutory overnight delivery.

(Code 1933, §§ 26-1705.1, 26-1705.4, enacted by Ga. L. 1969, p. 128, § 1; Code 1933, § 26-1705.3, enacted by Ga. L. 1980, p. 1083, § 1; Ga. L. 1990, p. 304, § 2; Ga. L. 1992, p. 6, § 16; Ga. L. 1996, p. 371, §§ 2, 3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2015, p. 266, § 2/HB 192.)

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment to this section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Monetary loss not required.

- Although there was evidence that credit card company honored transaction and paid inn for the charge on the room, there was no requirement under the circumstances to show that the inn sustained a monetary loss; it was sufficient to prove that, by use of the credit card, defendant obtained valuable services from the inn. Hale v. State, 214 Ga. App. 899, 449 S.E.2d 520 (1994).

- Financial transaction card theft, O.C.G.A. § 16-9-31, is not a lesser included offense of financial transaction card fraud, O.C.G.A. § 16-9-33; thus, defendant's prior conviction for the former offense did not preclude prosecution for the latter. Sword v. State, 232 Ga. App. 497, 502 S.E.2d 334 (1998).

- Defendant's conviction on 20 counts of financial transaction card fraud were not authorized, where the evidence on each count created the inference that the financial transaction card was presented and goods were received in a county other than that in which defendant was prosecuted. Newsom v. State, 183 Ga. App. 339, 359 S.E.2d 11 (1987).

- Defendant's conviction of financial transaction card fraud was affirmed, where evidence that a VISA card was used without its owner's authorization to obtain goods and money established the corpus delicti, and the owner's testimony that defendant had access to the owner's mail and that the signatures on the charge slips closely paralleled defendant's handwriting provided sufficient corroboration of defendant's confession. Goswick v. State, 201 Ga. App. 799, 412 S.E.2d 293 (1991).

Videotapes of the defendant taking the victim's purse and using the victim's credit card, the defendant's company photograph and the ID testimony of a clerk at the store where the purse was stolen, were sufficient evidence to convict defendant for a violation of O.C.G.A. § 16-9-33. Green v. State, 223 Ga. App. 467, 477 S.E.2d 895 (1996).

Proof that defendant used an alias on business account credit card applications was sufficient to authorize the jury's verdicts that defendant committed financial transaction card fraud in violation of O.C.G.A. § 16-9-33(d). Jordan v. State, 242 Ga. App. 547, 528 S.E.2d 858 (2000).

Evidence was sufficient to support defendant's convictions under O.C.G.A. §§ 16-9-31 and16-9-33(a) since defendant took a bank card from defendant's sibling that was in the sibling's ex-spouse's name, defendant checked into a hotel and used it to guarantee the room, and while at the hotel, someone attempted to use the card, but the transaction was denied. Rogers v. State, 259 Ga. App. 516, 578 S.E.2d 169 (2003).

Evidence that defendant, on two different dates, approached cashiers at the same store, gave them a credit card that was falsified in that it had the account numbers from another man's account superimposed over the credit card's original numbers, that the cashiers punched in the card's numbers manually when they could not get the card to scan properly, and that defendant was able to obtain store merchandise because the sales were then approved was sufficient to support defendant's conviction for financial transaction card fraud. Epps v. State, 262 Ga. App. 113, 584 S.E.2d 701 (2003).

Evidence was sufficient to support defendant's convictions for malice murder, theft by taking, and financial transaction card fraud, as the evidence authorized any rational trier of fact to find defendant guilty of those crimes beyond a reasonable doubt; the evidence showed that defendant struck the victim multiple times with a wrench, causing the victim's death, that the defendant was in possession of a laptop computer that had been missing from the victim's office, and that defendant had used the victim's credit, posing as the victim's wife, on the day the victim died. Baugh v. State, 276 Ga. 736, 585 S.E.2d 616 (2003).

When the evidence showed the defendant's family participated in a scheme whereby the family obtained credit cards in the names of non-existent businesses and used the cards to buy goods for the family's own use with no intention of repayment, even though the defendant did not personally sign for these purchases, a jury could conclude that the defendant aided and abetted the fraudulent use of the card in light of evidence showing the defendant agreed to the defendant's adult step-child's offer to obtain one of the fictitious business credit cards for defendant's use, that the defendant was aware of a scheme to commit fraud through the use of credit cards, and that the defendant was seen often in the store where the fraudulent purchases occurred. Stuart v. State, 267 Ga. App. 463, 600 S.E.2d 629 (2004).

Evidence supported the defendant's convictions of armed robbery, kidnapping, possession of a firearm during the commission of a crime, and financial transaction card fraud. Shortly after a man called the store where the victim worked to see if the store was open, a masked man with a gun came into the store, ordered the victim to the back, and then robbed the store and took the victim's credit cards; soon afterward that same morning, the defendant bought sneakers with the victim's credit card; the clerk who sold the defendant the sneakers identified the defendant at trial and in a photographic lineup and testified that the clerk knew the defendant because the defendant was a regular customer; and the defendant's cell phone records showed that just before the robbery, the defendant called the victim's store and blocked the defendant's number. Anderson v. State, 297 Ga. App. 733, 678 S.E.2d 498 (2009), aff'd, 287 Ga. 159, 695 S.E.2d 26 (Ga. 2010).

Evidence was sufficient to convict the defendant of identity fraud, financial-transaction-card fraud, and exploitation of an elder person and the defendant's convictions for those predicate acts was sufficient to convict the defendant of violating the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., because the defendant participated in a scheme, in which the defendant and the defendant's cohorts obtained elderly victims' credit card, banking, and other financial and personal information by telephoning the victims and informing the victims that the victims' power would be cut off if the victims did not immediately provide such information; and the defendant used the cards or the account numbers to make purchases and to obtain cash advances. Roberts v. State, 344 Ga. App. 324, 810 S.E.2d 169 (2018).

Sufficient evidence supported the appellant's convictions on two counts of exploitation of elder person, two counts of theft by taking, and 11 counts of financial-transaction-card fraud based on at least circumstantial evidence that the appellant's mother did not authorize the appellant's near total depletion of various financial accounts by transfers to the appellant's account, ATM withdrawals, money sent to another country, and buying online merchandise, furniture, and jewelry. Anderson v. State, 350 Ga. App. 369, 829 S.E.2d 453 (2019).

- In the defendant's murder trial, circumstantial evidence supported the jury's verdict: the evidence included text messages showing the defendant and the victim were meeting for sex; the defendant's saliva was on the victim's penis; the murder weapon was found in the defendant's backpack; however, the defendant's financial transaction fraud conviction was reversed because, despite the defendant's attempts, the defendant was not able to obtain anything of value using the victim's debit card. Carter v. State, 305 Ga. 863, 828 S.E.2d 317 (2019).

- Because the state never filed a motion to take a material witness's deposition as required by former O.C.G.A. § 24-10-130 (see now O.C.G.A. § 24-13-130), the trial court never held a hearing, never found grounds for the deposition, and never ordered that the deposition be taken during a particular time period; therefore, the defendant's conviction for financial transaction card fraud under O.C.G.A. § 16-9-33(a) was reversed and the case was remanded for a new trial. Evans v. State, 275 Ga. App. 621, 621 S.E.2d 584 (2005).

Cited in Harris v. State, 166 Ga. App. 202, 303 S.E.2d 534 (1983); Thomas v. State, 176 Ga. App. 771, 337 S.E.2d 344 (1985); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009).

RESEARCH REFERENCES

Am. Jur. 2d.

- 20 Am. Jur. 2d, Credit Cards and Charge Accounts, § 1 et seq. 36 Am. Jur. 2d, Forgery, § 1 et seq.

- 37 C.J.S., Forgery, § 15.

- Invalid instrument as subject of forgery, 174 A.L.R. 1300.

Liability of holder of credit card or plate for purchases made thereon by another person, 15 A.L.R.3d 1086.

What statute of limitations governs action arising out of transaction consummated by the use of credit card, 2 A.L.R.4th 677.

Successful negotiation of commercial transaction as element of state offense of credit card fraud or false pretense in use of credit card, 106 A.L.R.5th 701.

Validity, construction, and application of state statutes relating to offense of identity theft, 125 A.L.R.5th 537.

Criminal liability for unauthorized use of credit card under state credit card statutes, 68 A.L.R.6th 527.