How Do I Recover Money from a Bad Check in Florida?
Full Question:
Answer:
Bad checks are covered by both criminal and civil law. To be prosecuted criminally, knowledge of insufficient funds is required. Money damages may be recovered in a civil case. In a civil claim, in event of failure to make payment after demand, the amount owed, together penalties, bank and court costs and reasonable attorneys' fees, may be ordered. A breach of contract suit may also be possible. After a judgment remains unpaid, the unpaid judgment may be used to create a lien on property of the judgment debtor.
Please see the information at the following link for further discussion:
http://www.sao10.com/worthless_checks.asp
Please see the following FL statutes:
832.05 Giving worthless checks, drafts, and debit card orders; penalty;
duty of drawee; evidence; costs; complaint form. —
(1) PURPOSE. — The purpose of this section is to remedy the evil of
giving checks, drafts, bills of exchange, debit card orders, and other
orders on banks without first providing funds in or credit with the
depositories on which the same are made or drawn to pay and satisfy the
same, which tends to create the circulation of worthless checks, drafts,
bills of exchange, debit card orders, and other orders on banks, bad
banking, check kiting, and a mischief to trade and commerce.
(2) WORTHLESS CHECKS, DRAFTS, OR DEBIT CARD ORDERS; PENALTY. —
(a) It is unlawful for any person, firm, or corporation to draw, make,
utter, issue, or deliver to another any check, draft, or other written
order on any bank or depository, or to use a debit card, for the payment of
money or its equivalent, knowing at the time of the drawing, making,
uttering, issuing, or delivering such check or draft, or at the time of
using such debit card, that the maker or drawer thereof has not sufficient
funds on deposit in or credit with such bank or depository with which to
pay the same on presentation; except that this section does not apply to
any check when the payee or holder knows or has been expressly notified
prior to the drawing or uttering of the check, or has reason to believe,
that the drawer did not have on deposit or to the drawer's credit with the
drawee sufficient funds to ensure payment as aforesaid, nor does this
section apply to any postdated check.
(b) A violation of the provisions of this subsection constitutes a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s.
775.083, unless the check, draft, debit card order, or other written order
drawn, made, uttered, issued, or delivered is in the amount of $150, or its
equivalent, or more and the payee or a subsequent holder thereof receives
something of value therefor. In that event, the violation constitutes a
felony of the third degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.
(3) CASHING OR DEPOSITING ITEM WITH INTENT TO DEFRAUD; PENALTY. —
(a) It is unlawful for any person, by act or common scheme, to cash or
deposit any item, as defined in s. 674.104(1)(i), in any bank or depository
with intent to defraud.
(b) A violation of the provisions of this subsection constitutes a felony
of the third degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084.
(4) OBTAINING PROPERTY OR SERVICES IN RETURN FOR WORTHLESS CHECKS,
DRAFTS, OR DEBIT CARD ORDERS; PENALTY. —
(a) It is unlawful for any person, firm, or corporation to obtain any
services, goods, wares, or other things of value by means of a check,
draft, or other written order upon any bank, person, firm, or corporation,
knowing at the time of the making, drawing, uttering, issuing, or
delivering of such check or draft that the maker thereof has not sufficient
funds on deposit in or credit with such bank or depository with which to
pay the same upon presentation. However, no crime may be charged in respect
to the giving of any such check or draft or other written order when the
payee knows, has been expressly notified, or has reason to believe that the
drawer did not have on deposit or to the drawer's credit with the drawee
sufficient funds to ensure payment thereof. A payee does not have reason to
believe a payor does not have sufficient funds to ensure payment of a check
solely because the payor has previously issued a worthless check to him or
her.
(b) It is unlawful for any person to use a debit card to obtain money,
goods, services, or anything else of value knowing at the time of such use
that he or she does not have sufficient funds on deposit with which to pay
for the same or that the value thereof exceeds the amount of credit which
is available to him or her through an overdraft financing agreement or
prearranged line of credit which is accessible by the use of the card.
(c) A violation of the provisions of this subsection, if the check,
draft, other written order, or debit card order is for an amount less than
$150 or its equivalent, constitutes a misdemeanor of the first degree,
punishable as provided in s. 775.082 or s. 775.083. A violation of the
provisions of this subsection, if the check, draft, other written order, or
debit card order is in the amount of $150, or its equivalent, or more,
constitutes a felony of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(5) PAYMENT NO DEFENSE. — Payment of a dishonored check, draft, bill of
exchange, or other order does not constitute a defense or ground for
dismissal of charges brought under this section.
(6) "CREDIT," "DEBIT CARD" DEFINED. —
(a) The word "credit" as used herein shall be construed to mean an
arrangement or understanding with the drawee for the payment of such check,
draft, or other written order.
(b) As used in this section, the term "debit card" means a card, code, or
other device, other than a check, draft, or similar paper instrument, by
the use of which a person may order, instruct, or authorize a financial
institution to debit a demand deposit, savings deposit, or other asset
account.
(7) REASON FOR DISHONOR, DUTY OF DRAWEE. — It is the duty of the drawee
of any check, draft, or other written order, before refusing to pay the
same to the holder thereof upon presentation, to cause to be written,
printed, or stamped in plain language thereon or attached thereto the
reason for the drawee's dishonor or refusal to pay it. In any prosecution
under this section, the introduction in evidence of any unpaid and
dishonored check, draft, or other written order having the drawee's refusal
to pay stamped or written thereon or attached thereto, with the reason
therefor as aforesaid, is prima facie evidence of the making or uttering of
such check, draft, or other written order, of the due presentation to the
drawee for payment and the dishonor thereof, and that the same was properly
dishonored for the reasons written, stamped, or attached by the drawee on
such dishonored check, draft, or other written order. As against the maker
or drawer thereof, the withdrawing from deposit with the drawee named in
the check, draft, or other written order of the funds on deposit with such
drawee necessary to ensure payment of such check, draft, or other written
order upon presentation within a reasonable time after negotiation or the
drawing, making, uttering, or delivering of a check, draft, or written
order, payment of which is refused by the drawee, is prima facie evidence
of knowledge of insufficient funds in or credit with such drawee. However,
if it is determined at the trial in a prosecution hereunder that the payee
of any such check, draft, or written order, at the time of accepting such
check, draft, or written order, had knowledge of or reason to believe that
the drawer of such check, draft, or other written order did not have
sufficient funds on deposit in or credit with such drawee, then the payee
instituting such criminal prosecution shall be assessed all costs of court
incurred in connection with such prosecution.
(8) COSTS. — When a prosecution is initiated under this section before
any committing trial court judge, the party applying for the warrant shall
be held liable for costs accruing in the event the case is dismissed for
want of prosecution. No costs shall be charged to the county in such
dismissed cases.
(9) STATE ATTORNEYS; WORTHLESS CHECKS; FORM OF COMPLAINT. — The state
attorneys of Florida shall collectively promulgate a single form to be used
in all judicial circuits by persons reporting a violation of this chapter.
(10) CONSTRUCTION; PAYEE OR HOLDER; INSUFFICIENT FUNDS. — For the
purposes of construction of this section, a payee or holder does not have
knowledge, express notification, or reason to believe that the maker or
drawer has insufficient funds to ensure payment of a check, draft, or debit
card solely because the maker or drawer has previously drawn or issued a
worthless check, draft, or debit card order to the payee or holder.
