By: Clark, Campbell, Lancaster & Munson, P.A.
Q: My customer’s check bounced, and he won’t return my calls. What can I do to recover?
A Every day in Florida individuals and businesses receive payments for goods or services in the form of “payment instruments”, which include checks, debit card orders and electronic funds transfers. Unfortunately, many of these payments are “worthless”, because they have been dishonored by the drawee banks or credit unions for lack of funds, lack of credit, lack of account, or the maker has stopped payment. When a worthless payment is issued, and the maker refuses to issue a good check or make payment in another form, Florida law provides the payee with civil remedies that allow the payee to recover from the maker the amount of payment, bank fees and service charges. This article focuses on worthless checks, although the civil remedies discussed also apply to other “payment instruments”.
The payee of a worthless or “bounced” check is entitled to demand and receive from the maker the full amount (i.e., the face amount) of the worthless check, along with any bank fees incurred and a service charge. The payee must first send a written demand by certified mail that notifies the maker that the check was dishonored, lists the full amount owed, and that states the maker must pay the full amount owed in cash within 30 days from the date of receipt of the letter. If, after 30 days, the maker has not paid the payee the entire amount owed, the payee then may file a civil suit against the maker and seek three times the amount of the worthless check, plus bank fees and service charges, court costs, and reasonable attorney fees.
Because of the expense, and uncertain outcome of civil actions, including the possibility of an uncollectable judgment, payees should take the following precautions when issued a check, not only to ensure the check is valid, but also to ensure recovery from the maker if the check is dishonored. First, the payee should always confirm the full legal name and home address of the maker of the check through a government issued form of identification. Second, a payee should never accept a check that is post-dated or has no date on it since that may prevent criminal prosecution if the check is dishonored. Finally, a payee should never accept checks from third parties if the identity of the maker or whether the check was stolen or forged cannot be immediately confirmed.
The December 18th edition of “The Law” will discuss end-of-year tax issues. Questions may be submitted online to firstname.lastname@example.org.
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