Florida Senate - 2013                        COMMITTEE AMENDMENT
       Bill No. SB 550
                                Barcode 580832                          
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/02/2013           .                                

       The Committee on Banking and Insurance (Hays) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 68.065, Florida Statutes, is amended to
    6  read:
    7         68.065 Actions to collect worthless checks, drafts, or
    8  orders of payment instruments; attorney attorney’s fees and
    9  collection costs.—
   10         (1) As used in this section, the term “payment instrument”
   11  or “instrument” means a check, draft, order of payment, debit
   12  card order, or electronic funds transfer.
   13         (2) In lieu of a service charge authorized under subsection
   14  (3), s. 832.062(4)(a), or s. 832.07, the payee of a payment
   15  instrument, the payment of which is refused by the drawee
   16  because of lack of funds, lack of credit, or lack of an account,
   17  or where the maker or drawer stops payment on the instrument
   18  with intent to defraud, may lawfully collect bank fees actually
   19  incurred by the payee in the course of tendering the payment,
   20  plus a service charge of $25 if the face value does not exceed
   21  $50; $30 if the face value exceeds $50 but does not exceed $300;
   22  $40 if the face value exceeds $300; or 5 percent of the face
   23  value of the payment instrument, whichever is greater. The right
   24  to damages under this subsection may be claimed without the
   25  filing of a civil action.
   26         (3)(a)(1) In any civil action brought for the purpose of
   27  collecting a check, draft, or order of payment instrument, the
   28  payment of which is was refused by the drawee because of the
   29  lack of funds, lack of credit, or lack of an account, or where
   30  the maker or drawer stops payment on the instrument check,
   31  draft, or order of payment with intent to defraud, and where the
   32  maker or drawer fails to pay the amount owing, in cash, to the
   33  payee within 30 days after following a written demand therefor,
   34  as provided in subsection (4) (3), the maker or drawer is shall
   35  be liable to the payee, in addition to the amount owing upon
   36  such payment instrument check, draft, or order, for damages of
   37  triple the amount so owing. However, in no case shall the
   38  liability for damages be less than $50. The maker or drawer is
   39  shall also be liable for any court costs and reasonable attorney
   40  fees incurred by the payee in taking the action. Criminal
   41  sanctions, as provided in s. 832.07, may be applicable.
   42         (b)(2) The payee may also charge the maker or drawer of the
   43  check, draft, or order of payment instrument a service charge
   44  not to exceed the service fees authorized under s. 832.08(5) or
   45  5 percent of the face amount of the instrument, whichever is
   46  greater, when making written demand for payment. In the event
   47  that a judgment or decree is rendered, interest at the rate and
   48  in the manner described in s. 55.03 may be added toward the
   49  total amount due. Any bank fees incurred by the payee may be
   50  charged to the maker or drawer of the check, draft, or order of
   51  payment instrument.
   52         (4)(3) Before recovery under subsection (3) this section
   53  may be claimed, a written demand must be delivered by certified
   54  or registered mail, evidenced by return receipt, or by first
   55  class mail, evidenced by an affidavit of service of mail, to the
   56  maker or drawer of the check, draft, or order of payment
   57  instrument to the address on the check or other instrument, to
   58  the address given by the drawer at the time the instrument was
   59  issued, or to the drawer’s last known address. The form of such
   60  notice shall be substantially as follows:
   61         “You are hereby notified that a check, draft, order of
   62  payment, debit card order, or electronic funds transfer numbered
   63  .... in the face amount of $.... issued by you on ...(date)...,
   64  drawn upon ...(name of bank)..., and payable to ...., has been
   65  dishonored. Pursuant to Florida law, you have 30 days from
   66  receipt of this notice to tender payment in cash of the full
   67  amount of the dishonored payment instrument, check plus a
   68  service charge of $25, if the face value does not exceed $50,
   69  $30, if the face value exceeds $50 but does not exceed $300,
   70  $40, if the face value exceeds $300, or 5 percent of the face
   71  amount of the dishonored instrument check, whichever is greater,
   72  the total amount due being $.... and .... cents. Unless this
   73  amount is paid in full within the 30-day period, the holder of
   74  the dishonored payment check or instrument may file a civil
   75  action against you for three times the amount of the dishonored
   76  instrument check, but in no case less than $50, in addition to
   77  the payment of the dishonored instrument check plus any court
   78  costs, reasonable attorney fees, and any bank fees incurred by
   79  the payee in taking the action.”
   80         (5)(4) A subsequent person receiving a payment instrument
   81  check, draft, or order, from the original payee or a successor
   82  endorsee has the same rights that the original payee has against
   83  the maker of the instrument, if provided such subsequent person
   84  gives notice in a substantially similar form to that provided in
   85  subsection (4) above. A subsequent person providing such notice
   86  is shall be immune from civil liability for the giving of such
   87  notice and for proceeding under the forms of such notice, so
   88  long as the maker of the instrument has the same defenses
   89  against the subsequent person as against the original payee.
   90  However, the remedies available under this section may be
   91  exercised only by one party in interest.
   92         (6)(5)After Subsequent to the commencement of the action
   93  but before prior to the hearing, the maker or drawer may tender
   94  to the payee, as satisfaction of the claim, an amount of money
   95  equal to the sum of the payment instrument check, the service
   96  charge, court costs, and incurred bank fees. Other provisions
   97  notwithstanding, the maker or drawer is liable to the payee for
   98  all attorney fees and collection costs incurred by payee as a
   99  result of the payee’s claim.
  100         (7)(6) If the court or jury determines that the failure of
  101  the maker or drawer to satisfy the dishonored payment instrument
  102  check was due to economic hardship, the court or jury has the
  103  discretion to waive all or part of the statutory damages.
  104         Section 2. This act shall take effect July 1, 2013.
  106  ================= T I T L E  A M E N D M E N T ================
  107         And the title is amended as follows:
  108         Delete everything before the enacting clause
  109  and insert:
  110                        A bill to be entitled                      
  111         An act relating to the collection of worthless payment
  112         instruments; amending s. 68.065, F.S.; defining the
  113         term “payment instrument”; applying certain provisions
  114         relating to civil actions brought to collect
  115         dishonored checks, drafts, and orders of payment to
  116         specified types of payment instruments to permit the
  117         award of triple damages, court costs, and reasonable
  118         attorney fees, the imposition of service charges, and
  119         requirements for written demands for payment that must
  120         be delivered before commencement of collection
  121         actions; authorizing the payee of a dishonored payment
  122         instrument to recover bank fees and a service charge
  123         without filing a civil action; conforming provisions
  124         to changes made by the act; providing an effective
  125         date.