Notice of Dishonored Check - Criminal - Keywords: bad check, bounced check
Note: This summary is not intended to be an all-inclusive summary of the law of bad checks, but does contain basic and
other provisions.
CIVIL PROVISIONS
Florida Statutes
TITLE VI - CIVIL PRACTICE AND PROCEDURE
CHAPTER 68 - MISCELLANEOUS PROCEEDINGS
68.065 Actions to collect worthless checks, drafts, or
orders of payment; attorney's fees and collection costs.--
(1) In any civil action brought for the purpose of collecting
a check, draft, or order of payment, the payment of which was refused by
the drawee because of the lack of funds, credit, or an account, or where
the maker or drawer stops payment on the check, draft, or order of payment
with intent to defraud, and where the maker or drawer fails to pay the
amount owing, in cash, to the payee within 30 days following a written
demand therefor, as provided in subsection (3), the maker or drawer
shall be liable to the payee, in addition to the amount owing upon
such check, draft, or order, for damages of triple the amount so owing.
However, in no case shall the liability for damages be less than $50. The
maker or drawer shall also be liable for any court costs and reasonable
attorney fees incurred by the payee in taking the action. Criminal
sanctions, as provided in s. 832.07, may be applicable.
(2) The payee may also charge the maker or drawer of the check,
draft, or order of payment a service charge not to exceed the service fees
authorized under s. 832.08(5) or 5 percent of the face amount of the instrument,
whichever is greater, when making written demand for payment. In the event
that a judgment or decree is rendered, interest at the rate and in the
manner described in s. 55.03 may be added toward the total amount due.
Any bank fees incurred by the payee may be charged to the maker or drawer
of the check, draft, or order of payment.
(3) Before recovery under subsection (1) may be claimed, a
written
demand shall be delivered by certified or registered mail, evidenced by
return receipt, to the maker or drawer of the check draft, or order
of payment. The form of such notice shall be substantially as follows:
... [ see, USLF form FL-401N ] ...
(4) A subsequent person receiving a check, draft, or order,
from the original payee or a successor endorsee has the same rights that
the original payee has against the maker of the instrument, provided such
subsequent person gives notice in a substantially similar form to that
provided above. A subsequent person providing such notice shall be immune
from civil liability for the giving of such notice and for proceeding under
the forms of such notice, so long as the maker of the instrument has the
same defenses against the subsequent person as against the original payee.
However, the remedies available under this section may be exercised only
by one party in interest.
(5) Subsequent to the commencement of the action but prior
to the hearing, the maker or drawer may tender to the payee, as satisfaction
of the claim, an amount of money equal to the sum of the check, the service
charge, court costs, and incurred bank fees. Other provisions
notwithstanding, the maker or drawer is liable to the payee for all attorney
fees and collection costs incurred by payee as a result of the payee's
claim.
(6) If the court or jury determines that the failure of the
maker or drawer to satisfy the dishonored check was due to economic hardship,
the court or jury has the discretion to waive all or part of the
statutory damages.
CRIMINAL PROVISIONS
Florida Statutes
TITLE XLVI - CRIMES
CHAPTER 832 - VIOLATIONS INVOLVING CHECKS AND DRAFTS
832.07 Prima facie evidence of intent; identity. -
(1) INTENT. -
(a) In any prosecution or action under this chapter, the
making, drawing, uttering, or delivery of a check, draft, or order, payment
of which is refused by the drawee because of lack of funds or credit, shall
be prima facie evidence of intent to defraud or knowledge of insufficient
funds in, or credit with, such bank, banking institution, trust company,
or other depository, unless such maker or drawer, or someone for him or
her, shall have paid the holder thereof the amount due thereon, together
with a service charge not to exceed the service fees authorized under s.832.08(5)
or an amount of up to 5 percent of the face amount of the check, whichever
is greater, within 7 days after receiving written notice that such check,
draft, or order has not been paid to the holder thereof, and bank fees
incurred by the holder. In the event of legal action for recovery, the
maker or drawer may be additionally liable for court costs and reasonable
attorney's fees. Notice mailed by certified or registered mail, evidenced
by return receipt, to the address printed on the check or given at the
time of issuance shall be deemed sufficient and equivalent to notice having
been received by the maker or drawer, whether such notice shall be returned
undelivered or not. The form of such notice shall be substantially as follows:
... [ see, USLF form FL-402N ] ...
Subsequent persons receiving a check, draft, or order from the original
payee or a successor endorsee have the same rights that the original payee
has against the maker of the instrument, provided such subsequent persons
give notice in a substantially similar form to that provided above. Subsequent
persons providing such notice shall be immune from civil liability for
the giving of such notice and for proceeding under the forms of such notice,
so long as the maker of the instrument has the same defenses against these
subsequent persons as against the original payee. However, the remedies
available under this section may be exercised only by one party in interest.
(b) When a check is drawn on a bank in which the maker or
drawer has no account or a closed account, it shall be presumed that such
check was issued with intent to defraud, and the notice requirement set
forth in this section shall be waived.
(2) IDENTITY. -
(a) In any prosecution or action under the provisions of
this chapter, a check, draft, or order for which the information required
in paragraph (b), paragraph (d), paragraph (e), or paragraph (f) is available
at the time of issuance constitutes prima facie evidence of the identity
of the person issuing the check, draft, or order and that such person is
authorized to draw upon the named account.
(b) To establish this prima facie evidence:
1. The driver's license number or state identification number,
specifying the state of issuance of the person presenting the check must
be written on the check; or
2. The following information regarding the identity of the
person presenting the check must be obtained by the person accepting such
check: The presenter's full name, residence address, home phone number,
business phone number, place of employment, sex, date of birth, and height.
(c) The information required in subparagraph (b)2. may be
provided by either of two methods:
1. The information may be recorded on the check; or
2. The number of a check-cashing identification card issued
by the accepter of the check may be recorded on the check. In order to
be used to establish identity, such check-cashing identification card may
not be issued until the information required in subparagraph (b)2. has
been placed on file with the accepter of the check.
(d) If a check is received by a payee through the mail or
by delivery to a representative of the payee, the prima facie evidence
referred to in paragraph (a) may be established by presenting the original
contract, order, or request for services that the check purports to pay
for, bearing the signature of the person who signed the check, or by presenting
a copy of the information required in subparagraph (b)2. which is on file
with the accepter of the check together with the signature of the person
presenting the check.
(e) If a check is received by a payee and the drawer or maker
has a check-cashing identification card on file with the payee, the prima
facie evidence referred to in paragraph (a) may be established by presenting
the signature found on the check-cashing identification card bearing the
signature of the person who signed the check.
(f) If a check is received by the Department of Revenue through
the mail or by delivery to a representative of the Department of Revenue,
the prima facie evidence referred to in paragraph (a) may be established
by presenting the original tax return, certificate, license, application
for certificate or license, or other document relating to amounts owed
by that person or taxpayer which the check purports to pay for, bearing
the signature of the person who signed the check, or by presenting a copy
of the information required in subparagraph (b)2. which is on file with
the accepter of the check together with the signature of the person presenting
the check. The use of taxpayer information for purposes of establishing
the identity of a person pursuant to this paragraph shall be considered
a use of such information for official purposes.
