Chapter 9 Financial Transaction Card Crimes

• Library: SC Crimes: Elements and Defenses (SCBar) (2021 Ed.)

Chapter 9 Financial Transaction Card Crimes

A. Overview

The Financial Transaction Card Crime Act, S.C. Code Ann. §§ 16-14-10 to 100, establishes three broad types of crimes involving a "financial transaction card" or "FTC," which is defined as "any instrument or device whether known as a credit card, credit plate, bank services card, banking card, check guarantee card, debit card, or by any other name, issued with or without fee by an issuer for the use of the cardholder." S.C. Code Ann. § 16-14-10(4).

The three types of crimes are:

• FTC theft, S.C. Code Ann. § 16-14-20;
• FTC forgery, S.C. Code Ann. § 16-14-40; and,
• FTC fraud, S.C. Code Ann. § 16-14-60.

This chapter will also set forth elements for criminal possession of financial transaction card forgery devices, S.C. Code Ann. § 16-14-70 and criminally receiving goods and services fraudulently obtained, S.C. Code Ann. § 16-14-80. Penalties for violation of the Federal Transaction Card Crime Act are set forth in S.C. Code Ann. § 16-14-100. However, several of the statutes listed below also contained their own penalties.

There is little to no South Carolina case law on these crimes.

B. Definitions; S.C. Code Ann. § 16-14-10

The following words and phrases as used in this chapter, unless a different meaning is plainly required by the context, shall have the following meanings:
(1) "Automated banking device" means any machine which when properly activated by a financial transaction card or personal identification code may be used for any of the purposes for which a financial transaction card may be used.
(2) "Cardholder" means the person or organization named on the face of a financial transaction card to whom or for whose benefit the financial transaction card is issued by an issuer.
(3) "Expired financial transaction card" means a financial transaction card which is no longer valid because the term shown on it has elapsed.
(4) "Financial transaction card" or "FTC" means any instrument or device whether known as a credit card, credit plate, bank services card, banking card, check guarantee card, debit card, or by any other name, issued with or without fee by an issuer for the use of the cardholder;

(a) in obtaining money, goods, services, or anything else of value on credit;
(b) in certifying or guaranteeing to a person or business the availability to the cardholder of funds on deposit that are equal to or greater than the amount necessary to honor a draft or check payable to the order of such person or business;
(c) in providing the cardholder access to a demand deposit account or time deposit account for the purpose of:

1. making deposits of money or checks therein;
2. withdrawing funds in the form of money, money orders, or traveler's checks therefrom;
3. transferring funds from any demand deposit account or time deposit account to any other demand deposit account or time deposit account;
4. transferring funds from any demand deposit account or time deposit account to any credit card accounts, overdraft privilege accounts, loan accounts, or any other credit accounts in full or partial satisfaction of any outstanding balance owed existing therein;
5. for the purchase of goods, services or anything else of value;
6. obtaining information pertaining to any demand deposit account or time deposit account.

(5) "issuer" means the business organization or financial institution or its duly authorized agent which issues a financial transaction card.
(6) "Personal identification code" means a numeric or alphabetical code assigned to the cardholder of a financial transaction card by the issuer to permit authorized electronic use of that FTC.
(7) "Presenting" means those actions taken by a cardholder or any person to introduce a financial transaction card into an automated banking device, including utilization of a personal identification code, or merely displaying or showing a financial transaction card to the issuer, or to any person or organization providing money, goods, services, or anything else of value, or any other entity with intent to defraud.
(8) "Receives" or "receiving" means acquiring possession or control or accepting a financial transaction card as security for a loan.
(9) "Revoked financial transaction card" means a financial transaction card which is no longer valid because permission to use it has been suspended or terminated by the issuer.
(10) "Acquirer" means a business organization, financial institution, or an agent of a business organization or financial institution that authorizes a merchant to accept payment by credit card for money, goods, services, or anything else of value.

C. Financial transaction card or number theft; S.C. Code Ann. § 16-14-20

A person is guilty of financial transaction card theft when he:

(1) takes, obtains, or withholds a financial transaction card or number from the person, possession, custody, or control of another without the cardholder's consent and with the intent to use it; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card or number with intent to use it, sell it, or transfer it to a person other than the issuer or the cardholder;
(2) receives a financial transaction card or number that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it, sell it, or transfer it to a person other than the issuer or the cardholder;
(3) is not the issuer, and sells a financial transaction card or number or buys a financial transaction card or number from a person other than the issuer;
(4) is not the issuer, and during any twelve-month period, receives financial transaction cards or numbers issued in the names of two or more persons which he has reason to know were taken or retained under circumstances which constitute a violation of item (3) of this section and Section 16-14-60(A)(3).
A person who commits financial transaction card or number theft is guilty of a felony and, upon conviction, must be sentenced as provided in Section 16-14-100(B).

The statute also contains a presumption regarding possession of two or more cards. Under S.C. Code Ann. § 16-14-30:

When a person has in his possession or under his control financial transaction cards issued in the names of two or more other persons other than members of his immediate family, such possession shall be prima facie evidence that such financial transaction cards have been obtained in violation of Section 16-14-20(a).

1. Elements under S.C. Code Ann. § 16-14-20(1)

A person is guilty of financial transaction card theft when he:

a. Takes, obtains, or withholds,
b. A financial transaction card or number,
c. From the person, possession, custody, or control of another,
d. Without the cardholder's consent, and
e. With the intent to use it.
OR
a. With knowledge that it has been so taken, obtained, or

...