2002 Legislation
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SENATE BILL NO. 1364 – Checks, dishonored, notice

SENATE BILL NO. 1364

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Daily Data Tracking History



S1364................................................by JUDICIARY AND RULES
CHECKS - DISHONORED - Amends existing law relating to dishonored checks to
provide that written demand may be sent by regular mail supported by an
affidavit; and to revise provisions for the notice of dishonor.
                                                                        
02/04    Senate intro - 1st rdg - to printing
02/05    Rpt prt - to Jud
02/21    Rpt out - rec d/p - to 2nd rdg
02/22    2nd rdg - to 3rd rdg
02/27    3rd rdg - PASSED - 35-0-0
      AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
      Burtenshaw, Cameron, Darrington, Davis, Deide, Dunklin, Frasure,
      Geddes, Goedde, Hawkins, Hill, Ingram, Ipsen, Keough, King-Barrutia,
      Little, Lodge, Marley, Noh, Richardson, Risch, Sandy, Schroeder,
      Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler, Williams
      NAYS -- None
      Absent and excused -- None
    Floor Sponsor - Stegner
    Title apvd - to House
02/28    House intro - 1st rdg - to Jud
03/14    Rpt out - rec d/p - to 2nd rdg
    Rls susp - PASSED - 64-1-5
      AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Block, Boe,
      Bolz, Bradford, Bruneel, Callister, Campbell, Clark, Collins, Crow,
      Cuddy, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20),
      Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Higgins, Hornbeck,
      Jaquet, Jones, Kendell, Kunz, Lake, Loertscher, Martinez, McKague,
      Meyer, Montgomery, Mortensen, Moyle, Pearce, Pomeroy, Raybould,
      Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd,
      Smith(33), Smith(23), Smylie, Stevenson, Stone, Tilman, Trail,
      Wheeler, Wood, Young, Mr. Speaker
      NAYS -- Langford
      Absent and excused -- Aikele, Deal, Kellogg, Mader, Pischner
    Floor Sponsor - Boe
    Title apvd - to Senate
03/14    To enrol
03/15    Rpt enrol - Pres signed - Sp signed
03/18    To Governor
03/26    Governor signed
         Session Law Chapter 288
         Effective: 07/01/02

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  Second Regular Session - 2002
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1364
                                                                        
                              BY JUDICIARY AND RULES COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO DISHONORED CHECKS; AMENDING SECTION 1-2301A, IDAHO CODE,  TO  PRO-
  3        VIDE  FOR  WRITTEN DEMAND BY REGULAR MAIL SUPPORTED BY AFFIDAVIT; AMENDING
  4        SECTION 28-22-105, IDAHO CODE, TO CLARIFY MAILING REQUIREMENTS FOR NOTICES
  5        OF DISHONOR AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 28-22-106,
  6        IDAHO CODE, TO REVISE PROVISIONS FOR NOTICE OF DISHONOR; AND AMENDING SEC-
  7        TION 28-22-107, IDAHO CODE, TO CLARIFY MAILING REQUIREMENTS FOR NOTICES OF
  8        DISHONOR AND TO MAKE TECHNICAL CORRECTIONS.
                                                                        
  9    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 10        SECTION 1.  That Section 1-2301A, Idaho Code, be, and the same  is  hereby
 11    amended to read as follows:
                                                                        
 12        1-2301A.  DRAWING  CHECK WITHOUT FUNDS OR INSUFFICIENT FUNDS -- CIVIL LIA-
 13    BILITY. In any action filed in the small claims department  against  a  person
 14    who  makes  any  check, draft or order for the payment of money which has been
 15    dishonored for lack of funds or credit to pay the same, or because  the  maker
 16    has  no  account with the drawee, the plaintiff, or a collection agency with a
 17    permit issued to it pursuant to section 26-2229, Idaho Code, which is attempt-
 18    ing to collect the dishonored check under a written agreement with  the  payee
 19    or  holder  of  the  check,  may  recover from the defendant the amount of the
 20    check, draft or order and, in addition thereto, the greater of the  amount  of
 21    one  hundred dollars ($100) or three (3) times the amount for which the check,
 22    draft or order is drawn. Except as provided in section 1-2304, Idaho Code, the
 23    plaintiff or collection agency may recover no other costs,  fees,  charges  or
 24    damages. However, damages recovered under the provisions of this section shall
 25    not  exceed  by  more than five hundred dollars ($500) the value of the check,
 26    draft or order and may be awarded only if the plaintiff made written demand of
 27    the defendant for payment of the amount of the check, draft or order not  less
 28    than  ten  (10) days before commencing the action, and if the defendant failed
 29    to tender to the plaintiff, prior to commencement of the action, an amount  of
 30    money  not  less than the amount demanded. The written demand required by this
 31    section shall be sent to the  maker  by  certified  mail  at  his  last  known
 32    address,  or by regular mail, supported by an affidavit of service by mailing,
 33    to the address printed  or  written  on  the  check  as  provided  in  section
 34    28-22-106,  Idaho  Code,  in  which case the demand shall be deemed conclusive
 35    three (3) days following the date  the  affidavit  is  executed.  The  written
 36    demand  and  shall fully advise the maker of the check, draft, or order of the
 37    consequences of failure to make prompt payment under this section. The  plain-
 38    tiff  or collection agency must show proof of service by producing a copy of a
 39    signed return receipt or affidavit of personal service.
                                                                        
 40        SECTION 2.  That Section 28-22-105, Idaho Code, be, and the same is hereby
 41    amended to read as follows:
                                                                        
                                           2
                                                                        
  1        28-22-105.  CHECKS DISHONORED BY NONACCEPTANCE OR NONPAYMENT --  LIABILITY
  2    FOR  INTEREST  --  COLLECTION COSTS AND ATTORNEY'S' FEES. Whenever a check, as
  3    defined in section 28-3-104, Idaho Code, has been dishonored by  nonacceptance
  4    or  nonpayment  and  has  not been paid within fifteen (15) days and after the
  5    holder of such check sends such notice of  dishonor  as  provided  in  section
  6    28-22-106,  Idaho  Code, to the drawer, at his last known address, then if the
  7    check does not provide for the payment of interest, or  collection  costs  and
  8    attorney's' fees, the drawer of such check shall also be liable for payment of
  9    interest  at  the rate of twelve percent (12%) per annum from the date of dis-
 10    honor and cost of collection not to exceed twenty dollars ($20.00) or the face
 11    amount of the check, whichever is the lesser; provided however,  that  if  the
 12    holder  of  the  dishonored  check  has the right to collect a set fee under a
 13    written agreement or has notified the drawer by a posted notice at  the  point
 14    of  sale  that  the drawer will be required to pay a set collection fee if the
 15    check is dishonored, the holder is not required to give the notice of dishonor
 16    as provided in section 28-22-106, Idaho Code, and may assess a collection cost
 17    of the notice amount regardless of the size of the check, but the set fee  may
 18    not  exceed twenty dollars ($20.00). In addition, in the event of court action
 19    on the check, the court, after such notice and the expiration of said  fifteen
 20    (15) days, shall award reasonable attorney's' fees as part of the damages pay-
 21    able  to the holder of the check. No attorney's' fees may be awarded to a col-
 22    lection agency in a proceeding pursuant to section 1-2301A,  Idaho  Code.  The
 23    provisions of this section shall not apply to any check which has been dishon-
 24    ored by reason of any justifiable stop payment order.
                                                                        
 25        SECTION 3.  That Section 28-22-106, Idaho Code, be, and the same is hereby
 26    amended to read as follows:
                                                                        
 27        28-22-106.  STATUTORY  FORM FOR NOTICE OF DISHONOR. The notice of dishonor
 28    shall be sent either:
 29        (1)  Bby certified mail to the drawer at his last known address, and  said
 30    or
 31        (2)  By  regular mail, supported by an affidavit of service by mailing, to
 32    the address printed or written on the check.
 33        (a)  The affidavit of service by mailing shall be retained by the payee or
 34        holder of the check.
 35        (b)  Notice shall be deemed conclusive three (3) days following  the  date
 36        the affidavit is executed.
 37        (c)  The  affidavit  of  service  shall  be substantially in the following
 38        form:
                                                                        
                                                                        
 39        STATE OF            )            AFFIDAVIT OF SERVICE
 40                            )                 BY MAIL
 41        COUNTY OF           )
                                                                        
 42        ...................., being first duly sworn  on  oath,  deposes  and
 43        states  that  he/she  is  of  legal age and that on (date)..........,
 44        ...., he/she served the attached Notice of  Dishonor,  by  placing  a
 45        true  and  correct  copy  thereof  securely  enclosed  in an envelope
 46        addressed as follows:
 47        ..............................
 48        ..............................
 49        ..............................
 50        ..............................
                                                                        
                                           3
                                                                        
  1        and deposited the same, with postage prepaid, in  the  United  States
  2        mail at ......................., ......................
                                                                        
  3                                                    .........................
  4                                                    (Signature)
  5        Subscribed  and  sworn  to  before  me this .... day of ............,
  6        .....
                                                                        
  7                                                    .........................
  8                                                    Notary Public
                                                                        
  9                                                    ........County,..........
                                                                        
 10        (SEAL)
                                                                        
 11        (3)  The notice of dishonor shall be substantially in the following form:
                                                                        
 12                           NOTICE OF DISHONOR OF CHECK
 13             A check drawn by you and made payable by you  to  ..........  in
 14        the  amount  of  ..........  has  not  been  accepted  for payment by
 15        .........., which is the drawee bank designated on your  check.  This
 16        check is dated .........., and it is numbered, No. .........
 17             You  are  CAUTIONED that unless you pay the amount of this check
 18        within fifteen (15) days after the date this  letter  is  postmarked,
 19        you may very well have to pay the following additional amounts:
 20             (1)  Costs  of  collecting the amount of the check, including an
 21        attorney fee  which will be set by the court; and
 22             (2)  Interest on the amount of the check which shall  accrue  at
 23        the rate of twelve percent (12%) per annum from the date of dishonor.
 24             You  are  advised to make your payment to .......... at the fol-
 25        lowing address: ...........
                                                                        
 26        (4)  The issuance of a check with an address printed or written on it is a
 27    representation by the drawer that the  address  is  the  correct  address  for
 28    receipt of mail concerning the check. Failure of the drawer to receive a regu-
 29    lar  or certified mail notice sent to that address is not a defense to liabil-
 30    ity under this section provided the drawer has had actual notice  for  fifteen
 31    (15) days that the check has been dishonored.
 32        (5)  The  check  is  prima facie evidence of the identity of the drawer if
 33    the name, home or work address, and home  or  work  telephone  number  of  the
 34    drawer are either recorded by the person receiving the check or printed on the
 35    face of the check.
                                                                        
 36        SECTION 4.  That Section 28-22-107, Idaho Code, be, and the same is hereby
 37    amended to read as follows:
                                                                        
 38        28-22-107.  CONSEQUENCES  FOR  FAILING  TO  COMPLY  WITH  REQUIREMENTS. No
 39    interest, collection costs and attorney's' fees shall be recovered on any dis-
 40    honored check under the provisions of section 28-22-105, Idaho Code, where the
 41    holder of such check or any agent, employee or  assignee  of  the  holder  has
 42    demanded:
 43        (1)  Interest  or  collection  costs in excess of that provided in section
 44    28-22-105, Idaho Code; or
 45        (2)  Interest or collection costs prior to the expiration of fifteen  (15)
 46    days  after  the  certified mailing of notice of dishonor, as provided in sec-
                                                                        
                                           4
                                                                        
  1    tions 28-22-105 and 28-22-106, Idaho Code; or
  2        (3)  Attorney's' fees, either without having such fees set by  the  court,
  3    or prior to the expiration of fifteen (15) days after the certified mailing of
  4    notice  of  dishonor,  as  provided in sections 28-22-105 and 28-22-106, Idaho
  5    Code.
  6        The provisions of this section shall not prohibit the collection of a  set
  7    collection  fee  which  does not exceed twenty dollars ($20.00), if the holder
  8    has the right to collect a set fee under a written agreement or  has  notified
  9    the  drawer  at  the point of sale that the drawer will be required to pay the
 10    set collection fee in the event a check is dishonored.

Statement of Purpose / Fiscal Impact


                       STATEMENT OF PURPOSE

                        RS ll773Cl

This legislation changes the mailing requirements and provisions 
of notice for dishonored checks to simplify and update the current 
statutes, alleviating some of the escalating costs usually absorbed 
by the holder of the check.


Under current statute, the holder of a dishonored check cannot take 
action to recover the value of the check until a written demand or 
notice of dishonor is sent by certified mail with return receipt. 
This practice currently costs $3.60 in postage per notice, and more 
than 60 percent of the notices mailed are returned as undeliverable 
or refused. Thus, the holder cannot continue with the collection 
process.


This legislation will allow the notice of dishonor to be sent by 
first class or regular mail supported by a sworn statement that the 
notice was mailed on a specific date. After mailing the notice to 
the address printed or written on the check, the holder can continue 
with the collection process.


                            FISCAL IMPACT

There will be no impact on the General Fund, and no additional cost 
to the state or local governments.


CONTACT: Pam Eaton, Idaho Retailers Association
         (208) -342-0010


STATEMENT OF PURPOSE/FISCAL NOTE		S 1364