Obtaining Payment On A Worthless Check
Florida Statute 68.065creates a statutory remedy for one seeking to collect on a worthless or “bounced” check. The statute provides in relevant part:
In any civil action brought for the purpose of collecting a payment instrument, the payment of which is refused by the drawee because of lack of funds, lack of credit, or lack of an account, or where the maker or drawer stops payment on the instrument with intent to defraud, and where the maker or drawer fails to pay the amount owing, in cash, to the payee within 30 days after a written demand therefor, as provided in subsection (4), the maker or drawer is liable to the payee, in addition to the amount owing upon such payment instrument, 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 is also 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. F.S. 68.065 (3)(a).
As stated, if the check is refused because of lack of funds or if the maker of the check stops payment on the check it with the intent to defraud, you (the “payee”) can file a lawsuit against the maker after giving 30 days written demand for payment in accordance with subsection 4 of the statute (discussed below). If you win the lawsuit you are entitled to triple the face amount on the check, court costs and attorney’s fees. Interestingly, one court has interpreted the statute to mean that not only is the payee of the worthless check entitled to three times the face value of the check, but recovery of the face amount of the check itself. See NASR Int’l Trading Co., Inc. v. Rahul Int’l Inc., 675 So. 2d 704, 705 (Fla. 3d DCA 1996). For example, if you prevail in a case where the face value of the
check is $10,000.00 you’d be entitled to $40,000, plus attorney’s fees and costs.
Subsection 4 of the 68.065 states that before recovery may be claimed under the statute a written demand must be delivered by certified or registered mail, evidenced by return receipt, or by first-class mail, evidenced by an affidavit of service of mail, to the maker or drawer of the payment instrument to the address on the instrument, to the address given by the drawer at the time the instrument was issued, or to the drawer’s last known address. Subsection 4 then provides a convenient form of the notice, which if substantially followed, suffices as the required notice to the maker of the check. The notice reads as follows:
“You are hereby notified that a check, draft, order of payment, debit card order, or electronic funds transfer numbered …. in the face amount of $…. issued by you on …(date)…, drawn upon …(name of bank)…, and payable to …., has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the dishonored payment instrument, plus a service charge of $25 if the face value does not exceed $50, $30 if the face value exceeds $50 but does not exceed $300, $40 if the face value exceeds $300, or 5 percent of the face amount of the dishonored instrument, whichever is greater, the total amount due being $…. and …. cents. Unless this amount is paid in full within the 30-day period, the holder of the dishonored payment instrument may file a civil action against you for three times the amount of the dishonored instrument, but in no case less than $50, in addition to the payment of the
dishonored instrument plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action.” F.S. 68.065(4)
Of note, subsection (6) of the statute provides that “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.” This subsection has been interpreted to mean that while the drawer of the check may escape paying triple the face amount of the check due to economic hardship, the drawer is still liable on the face amount of the dishonored check. C & S Computers, Inc. v. Bodensiek, 662 So. 2d 1383 (Fla. 4th DCA