Florida Senate - 2013                                     SB 550
       By Senator Simpson
       18-00977-13                                            2013550__
    1                        A bill to be entitled                      
    2         An act relating to worthless checks, drafts, or orders
    3         of payment; amending s. 68.065, F.S.; permitting
    4         recovery of worthless checks, drafts, or orders of
    5         payment without the sending of a specified written
    6         demand if the payee has a specified notice posted at
    7         the point of sale or on an invoice; providing an
    8         effective date.
   10  Be It Enacted by the Legislature of the State of Florida:
   12         Section 1. Section 68.065, Florida Statutes, is amended to
   13  read:
   14         68.065 Actions to collect worthless checks, drafts, or
   15  orders of payment; attorney attorney’s fees and collection
   16  costs.—
   17         (1) In any civil action brought for the purpose of
   18  collecting a check, draft, or order of payment, the payment of
   19  which was refused by the drawee because of the lack of funds,
   20  credit, or an account, or where the maker or drawer stops
   21  payment on the check, draft, or order of payment with intent to
   22  defraud, and where the maker or drawer fails to pay the amount
   23  owing, in cash, to the payee within 30 days following a written
   24  demand therefor, as provided in subsection (3), the maker or
   25  drawer shall be liable to the payee, in addition to the amount
   26  owing upon such check, draft, or order, for damages of triple
   27  the amount so owing. However, in no case shall the liability for
   28  damages be less than $50. The maker or drawer shall also be
   29  liable for any court costs and reasonable attorney fees incurred
   30  by the payee in taking the action. Criminal sanctions, as
   31  provided in s. 832.07, may be applicable.
   32         (2) The payee may also charge the maker or drawer of the
   33  check, draft, or order of payment a service charge not to exceed
   34  the service fees authorized under s. 832.08(5) or 5 percent of
   35  the face amount of the instrument, whichever is greater, when
   36  making written demand for payment. In the event that a judgment
   37  or decree is rendered, interest at the rate and in the manner
   38  described in s. 55.03 may be added toward the total amount due.
   39  Any bank fees incurred by the payee may be charged to the maker
   40  or drawer of the check, draft, or order of payment.
   41         (3) Before recovery under this section may be claimed,
   42  either:
   43         (a) A written demand must be delivered by certified or
   44  registered mail, evidenced by return receipt, or by first-class
   45  mail, evidenced by an affidavit of service of mail, to the maker
   46  or drawer of the check, draft, or order of payment to the
   47  address on the check or other instrument, to the address given
   48  by the drawer at the time the instrument was issued, or to the
   49  drawer’s last known address. The form of such notice shall be
   50  substantially as follows:
   51         “You are hereby notified that a check numbered .... in the
   52  face amount of $.... issued by you on ...(date)..., drawn upon
   53  ...(name of bank)..., and payable to ...., has been dishonored.
   54  Pursuant to Florida law, you have 30 days from receipt of this
   55  notice to tender payment in cash of the full amount of the
   56  check, plus a service charge of $25, if the face value does not
   57  exceed $50, $30, if the face value exceeds $50 but does not
   58  exceed $300, $40, if the face value exceeds $300, or 5 percent
   59  of the face amount of the check, whichever is greater, the total
   60  amount due being $.... and .... cents. Unless this amount is
   61  paid in full within the 30-day period, the holder of the check
   62  or instrument may file a civil action against you for three
   63  times the amount of the check, but in no case less than $50, in
   64  addition to the payment of the check plus any court costs,
   65  reasonable attorney fees, and any bank fees incurred by the
   66  payee in taking the action.; or
   67         (b) The payee must have posted at the point of sale or have
   68  printed on an invoice sent before payment for goods or services
   69  a notice in substantially the following form:
   71         “If your check or debit card transaction is returned by
   72  your bank for insufficient funds, you authorize the collection
   73  of the amount of the check, as well as a return fee as provided
   74  in section 832.08(5), Florida Statutes.”
   76         (4) A subsequent person receiving a check, draft, or order,
   77  from the original payee or a successor endorsee has the same
   78  rights that the original payee has against the maker of the
   79  instrument, provided such subsequent person gives notice in a
   80  substantially similar form to that provided in subsection (3)
   81  above. A subsequent person providing such notice shall be immune
   82  from civil liability for the giving of such notice and for
   83  proceeding under the forms of such notice, so long as the maker
   84  of the instrument has the same defenses against the subsequent
   85  person as against the original payee. However, the remedies
   86  available under this section may be exercised only by one party
   87  in interest.
   88         (5) After Subsequent to the commencement of the action but
   89  before prior to the hearing, the maker or drawer may tender to
   90  the payee, as satisfaction of the claim, an amount of money
   91  equal to the sum of the check, the service charge, court costs,
   92  and incurred bank fees. Other provisions notwithstanding, the
   93  maker or drawer is liable to the payee for all attorney fees and
   94  collection costs incurred by payee as a result of the payee’s
   95  claim.
   96         (6) If the court or jury determines that the failure of the
   97  maker or drawer to satisfy the dishonored check was due to
   98  economic hardship, the court or jury has the discretion to waive
   99  all or part of the statutory damages.
  100         Section 2. This act shall take effect July 1, 2013.