Florida Senate - 2013                              CS for SB 550
       By the Committee on Banking and Insurance; and Senator Simpson
       597-03467-13                                           2013550c1
    1                        A bill to be entitled                      
    2         An act relating to the collection of worthless payment
    3         instruments; amending s. 68.065, F.S.; defining the
    4         term “payment instrument”; applying certain provisions
    5         relating to civil actions brought to collect
    6         dishonored checks, drafts, and orders of payment to
    7         specified types of payment instruments to permit the
    8         award of triple damages, court costs, and reasonable
    9         attorney fees, the imposition of service charges, and
   10         requirements for written demands for payment that must
   11         be delivered before commencement of collection
   12         actions; authorizing the payee of a dishonored payment
   13         instrument to recover bank fees and a service charge
   14         without filing a civil action; conforming provisions
   15         to changes made by the act; providing an effective
   16         date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Section 68.065, Florida Statutes, is amended to
   21  read:
   22         68.065 Actions to collect worthless checks, drafts, or
   23  orders of payment instruments; attorney attorney’s fees and
   24  collection costs.—
   25         (1) As used in this section, the term “payment instrument”
   26  or “instrument” means a check, draft, order of payment, debit
   27  card order, or electronic funds transfer.
   28         (2) In lieu of a service charge authorized under subsection
   29  (3), s. 832.062(4)(a), or s. 832.07, the payee of a payment
   30  instrument, the payment of which is refused by the drawee
   31  because of lack of funds, lack of credit, or lack of an account,
   32  or where the maker or drawer stops payment on the instrument
   33  with intent to defraud, may lawfully collect bank fees actually
   34  incurred by the payee in the course of tendering the payment,
   35  plus a service charge of $25 if the face value does not exceed
   36  $50; $30 if the face value exceeds $50 but does not exceed $300;
   37  $40 if the face value exceeds $300; or 5 percent of the face
   38  value of the payment instrument, whichever is greater. The right
   39  to damages under this subsection may be claimed without the
   40  filing of a civil action.
   41         (3)(a)(1) In any civil action brought for the purpose of
   42  collecting a check, draft, or order of payment instrument, the
   43  payment of which is was refused by the drawee because of the
   44  lack of funds, lack of credit, or lack of an account, or where
   45  the maker or drawer stops payment on the instrument check,
   46  draft, or order of payment with intent to defraud, and where the
   47  maker or drawer fails to pay the amount owing, in cash, to the
   48  payee within 30 days after following a written demand therefor,
   49  as provided in subsection (4) (3), the maker or drawer is shall
   50  be liable to the payee, in addition to the amount owing upon
   51  such payment instrument check, draft, or order, for damages of
   52  triple the amount so owing. However, in no case shall the
   53  liability for damages be less than $50. The maker or drawer is
   54  shall also be liable for any court costs and reasonable attorney
   55  fees incurred by the payee in taking the action. Criminal
   56  sanctions, as provided in s. 832.07, may be applicable.
   57         (b)(2) The payee may also charge the maker or drawer of the
   58  check, draft, or order of payment instrument a service charge
   59  not to exceed the service fees authorized under s. 832.08(5) or
   60  5 percent of the face amount of the instrument, whichever is
   61  greater, when making written demand for payment. In the event
   62  that a judgment or decree is rendered, interest at the rate and
   63  in the manner described in s. 55.03 may be added toward the
   64  total amount due. Any bank fees incurred by the payee may be
   65  charged to the maker or drawer of the check, draft, or order of
   66  payment instrument.
   67         (4)(3) Before recovery under subsection (3) this section
   68  may be claimed, a written demand must be delivered by certified
   69  or registered mail, evidenced by return receipt, or by first
   70  class mail, evidenced by an affidavit of service of mail, to the
   71  maker or drawer of the check, draft, or order of payment
   72  instrument to the address on the check or other instrument, to
   73  the address given by the drawer at the time the instrument was
   74  issued, or to the drawer’s last known address. The form of such
   75  notice shall be substantially as follows:
   76         “You are hereby notified that a check, draft, order of
   77  payment, debit card order, or electronic funds transfer numbered
   78  .... in the face amount of $.... issued by you on ...(date)...,
   79  drawn upon ...(name of bank)..., and payable to ...., has been
   80  dishonored. Pursuant to Florida law, you have 30 days from
   81  receipt of this notice to tender payment in cash of the full
   82  amount of the dishonored payment instrument, check plus a
   83  service charge of $25, if the face value does not exceed $50,
   84  $30, if the face value exceeds $50 but does not exceed $300,
   85  $40, if the face value exceeds $300, or 5 percent of the face
   86  amount of the dishonored instrument check, whichever is greater,
   87  the total amount due being $.... and .... cents. Unless this
   88  amount is paid in full within the 30-day period, the holder of
   89  the dishonored payment check or instrument may file a civil
   90  action against you for three times the amount of the dishonored
   91  instrument check, but in no case less than $50, in addition to
   92  the payment of the dishonored instrument check plus any court
   93  costs, reasonable attorney fees, and any bank fees incurred by
   94  the payee in taking the action.”
   95         (5)(4) A subsequent person receiving a payment instrument
   96  check, draft, or order, from the original payee or a successor
   97  endorsee has the same rights that the original payee has against
   98  the maker of the instrument, if provided such subsequent person
   99  gives notice in a substantially similar form to that provided in
  100  subsection (4) above. A subsequent person providing such notice
  101  is shall be immune from civil liability for the giving of such
  102  notice and for proceeding under the forms of such notice, so
  103  long as the maker of the instrument has the same defenses
  104  against the subsequent person as against the original payee.
  105  However, the remedies available under this section may be
  106  exercised only by one party in interest.
  107         (6)(5)After Subsequent to the commencement of the action
  108  but before prior to the hearing, the maker or drawer may tender
  109  to the payee, as satisfaction of the claim, an amount of money
  110  equal to the sum of the payment instrument check, the service
  111  charge, court costs, and incurred bank fees. Other provisions
  112  notwithstanding, the maker or drawer is liable to the payee for
  113  all attorney fees and collection costs incurred by payee as a
  114  result of the payee’s claim.
  115         (7)(6) If the court or jury determines that the failure of
  116  the maker or drawer to satisfy the dishonored payment instrument
  117  check was due to economic hardship, the court or jury has the
  118  discretion to waive all or part of the statutory damages.
  119         Section 2. This act shall take effect July 1, 2013.