Section 943.41. Financial transaction card crimes.

 

(1)   Definitions. In this section:

(a) “Alter" means add information to, change information on or delete information from.

(am) “Automated financial service facility" means a machine activated by a financial transaction card, personal identification code or both.

(b) “Cardholder" means the person to whom or for whose benefit a financial transaction card is issued.

(c) “Counterfeit" means to manufacture, produce or create by any means a financial transaction card or purported financial transaction card without the issuer's consent or authorization.

(e) “Expired financial transaction card" means a financial transaction card which is no longer valid because the term shown thereon has elapsed.

(em) “Financial transaction card" means an instrument or device issued by an issuer for the use of the cardholder in any of the following:

1. Obtaining anything on credit.

2. Certifying or guaranteeing the availability of funds sufficient to honor a draft or check.

3. Gaining access to an account.

(f) “Issuer" means the business organization or financial institution which issues a financial transaction card or its duly authorized agent.

(fm) “Personal identification code" means a numeric, alphabetic or alphanumeric code or other means of identification required by an issuer to permit a cardholder's authorized use of a financial transaction card.

(g) “Receives" or “receiving" means acquiring possession or control or accepting as security for a loan.

(h) “Revoked financial transaction card" means a financial transaction card which is no longer valid because permission to use it has been suspended or terminated by the issuer.

(2)   False statements. No person shall make or cause to be made, whether directly or indirectly, any false statements in writing, knowing it to be false and with intent that it be relied upon, respecting the person's identity or that of any other person or the person's financial condition or that of any other person or other entity for the purpose of procuring the issuance of a financial transaction card.

(3)   Theft by taking card.

(a) No person shall acquire a financial transaction card from the person, possession, custody or control of another without the cardholder's consent or, with knowledge that it has been so acquired, receive the financial transaction card with intent to use it or sell it or to transfer it to a person other than the issuer. Acquiring a financial transaction card without consent includes obtaining it by conduct defined as statutory theft. If a person has in his or her possession or under his or her control financial transaction cards issued in the names of 2 or more other persons it is prima facie evidence that the person acquired them in violation of this subsection.

(b) No person shall receive a financial transaction card that the person knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and retain possession thereof with intent to sell it, or to transfer it to a person other than the issuer or the cardholder, or to use it. The possession of such a financial transaction card for more than 7 days by a person other than the issuer or the cardholder is prima facie evidence that such person intended to sell, transfer or use it in violation of this subsection.

(c) No person other than the issuer shall sell a financial transaction card. No person shall buy a financial transaction card from a person other than the issuer.

(d) No person shall, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, obtain control over a financial transaction card as security for debt.

(e) No person other than the issuer may receive a financial transaction card issued in the name of another person which he or she has reason to know was taken or retained in violation of this subsection or sub. (2) . Either of the following is prima facie evidence of a violation of this paragraph:

1. Possession of 3 or more financial transaction cards with reason to know that the financial transaction cards were taken or retained in violation of this subsection or sub. (2) .

2. Possession of a financial transaction card with knowledge that the financial transaction card was taken or retained in violation of this subsection or sub. (2) .

(4)   Forgery of financial transaction card.

(a) No person shall, with intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value or any other person, alter or counterfeit a financial transaction card or purported financial transaction card or possess a financial transaction card or purported financial transaction card with knowledge that it has been altered or counterfeited. The possession by a person other than the purported issuer of 2 or more financial transaction cards which have been altered or counterfeited is prima facie evidence that the person intended to defraud or that the person knew the financial transaction cards to have been so altered or counterfeited.

(b) No person other than the cardholder or a person authorized by the cardholder shall, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value or any other person, sign a financial transaction card. Possession by a person other than the intended cardholder or one authorized by the intended cardholder of a financial transaction card signed by such person is prima facie evidence that such person intended to defraud in violation of this subsection.

(5)   Fraudulent use.

(a)

1. No person shall, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value or any other person:

a. Use, for the purpose of obtaining money, goods, services or anything else of value, a financial transaction card obtained or retained in violation of sub. (3) or a financial transaction card which the person knows is forged, expired or revoked; or

b. Obtain money, goods, services or anything else of value by representing without the consent of the cardholder that the person is the holder of a specified card or by representing that the person is the holder of a card and such card has not in fact been issued.

2. Knowledge of revocation shall be presumed to have been received by a cardholder 4 days after it has been mailed to the cardholder at the address set forth on the financial transaction card or at the cardholder's last-known address by registered or certified mail, return receipt requested, and if the address is more than 500 miles from the place of mailing, by air 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 10 days after mailing by registered or certified mail.

(b) No cardholder shall use a financial transaction card issued to the cardholder or allow another person to use a financial transaction card issued to the cardholder with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value or any other person.

(c) No person may deposit a stolen or forged instrument by means of an automated financial service facility with knowledge of the character of the instrument.

(d) No person may, with intent to defraud anyone:

1. Introduce information into an electronic funds transfer system.

2. Transmit information to or intercept or alter information from an automated financial service facility.

(e) No person may knowingly receive anything of value from a violation of par. (c) or (d) .

(6)   Fraudulent use; other persons.

(a) No 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, shall, with intent to defraud the issuer or the cardholder, furnish money, goods, services or anything else of value upon presentation of a financial transaction card obtained or retained under circumstances prohibited by sub. (3) or a financial transaction card which the person knows is forged, expired or revoked.

(b) No 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, shall, with intent to defraud, fail to furnish money, goods, services or anything else of value which the person represents in writing to the issuer that the person has furnished.

(c) No person other than the cardholder shall possess an incomplete financial transaction card with intent to complete it without the consent of the issuer. A financial transaction card is “incomplete" if part of the matter, other than the signature of the cardholder, which an issuer requires to appear on the financial transaction card before it can be used by a cardholder has not yet been stamped, embossed, imprinted or written on it.

(d) No person shall receive money, goods, services or anything else of value obtained under circumstances prohibited by this section, knowing or believing that it was so obtained. Any person who obtains at a discount price a ticket issued by an airline, railroad, steamship or other transportation company which was acquired under circumstances prohibited by this section without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circumstances prohibited by this section.

(6m)   Factoring prohibited.

(a) Except as provided in par. (b) , a person authorized to furnish money, goods, services or anything else of value upon presentation of a financial transaction card may not deposit, assign, endorse or present for payment to an issuer or to any other person authorized to acquire transaction records for presentation to an issuer a financial transaction card transaction record if the person did not furnish or agree to furnish the money, goods, services or anything else of value represented to be furnished by the transaction record.

(b) Paragraph (a) does not apply to any of the following:

1. A franchisor, as defined in s. 553.03 (6) , who presents for payment a financial transaction card transaction record of a franchisee, as defined in s. 553.03 (5) , if the franchisor is authorized to present the transaction record on behalf of the franchisee and the franchisee furnished or agreed to furnish the money, goods, services or anything else of value represented to be furnished by the transaction record.

2. A general merchandise retailer who presents for payment a financial transaction card transaction record of a person who furnishes money, goods, services or anything else of value on the business premises of the general merchandise retailer if the general merchandise retailer is authorized to present the transaction record on behalf of the person and the person furnished or agreed to furnish the money, goods, services or anything else of value represented to be furnished by the transaction record.

3. An issuer or an organization of issuers who present a financial transaction card transaction record for the interchange and settlement of the transaction.

(7)   Defenses not available. In any prosecution for violation of this section, it is not a defense:

(a) That a person other than the defendant has not been convicted, apprehended or identified; or

(b) That some of the acts constituting the crime did not occur in this state or were not a crime or elements of a crime where they did occur.

(8)   Penalties.

(a) Any person violating any provision of sub. (2) , (3) (a) to (d) or (4) (b) is guilty of a Class A misdemeanor.

(b) Any person violating any provision of sub. (3) (e) , (4) (a) , (6) (c) or (6m) is guilty of a Class I felony.

(c) Any person violating any provision of sub. (5) or (6) (a) , (b) , or (d) , if the value of the money, goods, services, or property illegally obtained does not exceed $2,500 is guilty of a Class A misdemeanor; if the value of the money, goods, services, or property exceeds $2,500 but does not exceed $5,000, in a single transaction or in separate transactions within a period not exceeding 6 months, the person is guilty of a Class I felony; if the value of the money, goods, services, or property exceeds $5,000 but does not exceed $10,000, in a single transaction or in separate transactions within a period not exceeding 6 months, the person is guilty of a Class H felony; or if the value of money, goods, services, or property exceeds $10,000, in a single transaction or in separate transactions within a period not exceeding 6 months, the person is guilty of a Class G felony.

1973 c. 219 ; 1977 c. 173 ; 1981 c. 288 ; 1989 a. 321 ; 1991 a. 39 ; 1993 a. 486 ; 1995 a. 225 ; 2001 a. 16 , 109 . Fraudulent use of a credit card need not involve forgery. If forgery is involved, the prosecutor has discretion to charge under either this section or s. 943.38. Mack v. State, 93 Wis. 2d 287 , 286 N.W.2d 563 (1980). Actual possession of the financial transaction card is not required for a violation of sub. (5) (a) 1. a. State v. Shea, 221 Wis. 2d 418 , 585 N.W.2d 662 (Ct. App. 1998), 97-2345 .