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It's The Law: Violations Involving Checks And Drafts

Q: I sold some used furniture and the buyer gave me a bad check. What can I do to collect?

A: Passing a bad check in Florida is a criminal action which also gives rise to civil liability. Your first step should be reporting the offence to local police or sheriff.

Under Section 832.05 of Florida Statutes, a person who knowingly gives a bad check without notifying the payee may be guilty of a misdemeanor of the first degree or, if the check is for $150.00 or more, a third degree felony. Section 832.041 of Florida Statutes makes stopping payment with intent to a fraud a criminal act, with punishment similar to that for giving a worthless check.

If probable cause for prosecution is found, the case will be referred to the State Attorney's office for review. If the State Attorney's office prosecutes it, will generally ask that the wrongdoer be ordered to make good on the check as part of any penalty imposed by the Court. However, because of limited resources, the State Attorney's office might not prosecute and isolated bad check case.

Florida also has a statute creating a civil cause of action for worthless checks. Section 68.065 of Florida Statutes provides for recovery of the amount of the check plus 3 times the amount of the check, if a procedure is set forth and the statute is followed.

To qualify for treble damages, you must first send a written demand by certified or registered mail or by first class mail evidenced by an affidavit of service of mail, to the person who wrote the check. The demand must be sent to the address given by the check writer at the time the check was issued, or if no address was given, to that person's last known address.

The notice must be in substantially the form required by the statute. It must include specifics concerning the dishonored check and advise that the check writer has 30 days to make the check good plus pay a service charge, which varies based upon the face amount of the check.

If the check writer does not pay within 30 days and you file suit, you are entitled to treble damages plus your attorney fees and costs of suit. After suit is filed if the check writer pays you an amount equal to the amount of the check, service charge, court costs and incurred bank fees before a judgment is entered, he is released from liability for treble damages. The check writer, is still obligated to pay your attorney fees and collection costs.

The statute also applies where a person stops payment on a check with intent to defraud and fails to make it good within 30 days following written demand. However, the statute does not apply where payment is stopped due to a dispute over performance or the matters involved with the transaction.

The statute has a savings provision for those in bad financial shape. If the court or jury determines that failure of the maker to satisfy the dishonored check was due to economic hardship, the court or jury has discretion to waive all or part of the statutory damages.

The statute is not particularly difficult to understand but it is technical. As with most legal matters, you would be well advised to discuss the facts of your case with an experienced attorney before proceeding. Since the statute provides for recovery of attorney fees, you should certainly retain an attorney before filing suit.

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