BILL REQ. #:  H-3857.1 



_____________________________________________ 

HOUSE BILL 2491
_____________________________________________
State of Washington58th Legislature2004 Regular Session

By Representatives Lantz, Carrell and Holmquist

Read first time 01/15/2004.   Referred to Committee on Judiciary.



     AN ACT Relating to dishonored checks; and amending RCW 62A.3-515, 62A.3-520, 62A.3-522, and 62A.3-525.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 62A.3-515 and 2000 c 215 s 1 are each amended to read as follows:
     (a) If a check as defined in RCW 62A.3-104 is dishonored by nonacceptance or nonpayment, the payee or person entitled to enforce the check under RCW 62A.3-301 may collect a reasonable handling fee of forty-five dollars for each instrument. If the check is not paid within ((fifteen)) thirty-five days ((and)) after the person entitled to enforce the check or the person's agent sends a notice of dishonor as provided by RCW 62A.3-520 to the drawer at the drawer's last known address, and ((if the instrument does not provide)) unless the instrument otherwise provides for the payment of interest or collection costs and attorneys' fees, the drawer of the instrument is liable for payment of interest at the rate of twelve percent per annum from the date of dishonor, and a cost of collection ((not to exceed)) of forty dollars or the face amount of the check, whichever is less, payable to the person entitled to enforce the check. In addition, in the event of court action on the check, the court, after notice and the expiration of the fifteen days, shall award reasonable attorneys' fees, and three times the face amount of the check or three hundred dollars, whichever is less, as part of the damages payable to the person enforcing the check. This section does not apply to an instrument that is dishonored by reason of a justifiable stop payment order.
     (b)(1) Subsequent to the commencement of an action on the check (subsection (a)) but prior to the hearing, the defendant may tender to the plaintiff as satisfaction of the claim, an amount of money equal to the face amount of the check, a reasonable handling fee of forty-five dollars, accrued interest, collection costs equal to the lesser of the face amount of the check ((not to exceed)) or forty dollars, and the incurred court costs, service costs, and statutory attorneys' fees.
     (2) Nothing in this section precludes the right to commence action in a court under chapter 12.40 RCW for small claims. Nothing in this section prevents a person entitled to enforce a check or that person's agent from charging the drawer lesser amounts than the amounts provided for in this section.

Sec. 2   RCW 62A.3-520 and 1993 c 229 s 68 are each amended to read as follows:
     (a) The notice of dishonor shall be sent by mail to the drawer at the drawer's last known address((, and)). The drawer will conclusively be presumed to have received the notice of dishonor not more than five days from the date it is mailed. The notice shall be substantially in the following form:


     NOTICE OF DISHONOR OF CHECK


     A check drawn by you and made payable by you to . . . . . . in the amount of . . . . . . has not been accepted for payment by . . . . . ., which is the drawee bank designated on your check. This check is dated . . . . . ., and it is numbered, No. . . . . . ..
     You are CAUTIONED that unless you pay the amount of this check and a handling fee of forty-five dollars within ((fifteen)) thirty-five days after the date this letter is postmarked, you may very well have to pay the following additional amounts:
     (1) Costs of collecting the amount of the check((, including an attorney's fee)) in the lesser of the check amount or forty dollars, plus, in the event of legal action, court costs and attorneys' fees which will be set by the court;
     (2) Interest on the amount of the check which shall accrue at the rate of twelve percent per annum from the date of dishonor; and
     (3) Three hundred dollars or three times the face amount of the check, whichever is less, by award of the court.
     You are also CAUTIONED that law enforcement agencies may be provided with a copy of this notice of dishonor and the check drawn by you for the possibility of proceeding with criminal charges if you do not pay the amount of this check within ((fifteen)) thirty-five days after the date this letter is postmarked.
     You are advised to make your payment to . . . . . . at the following address: . . . . . . . . . .
     (b) The cautionary statement regarding law enforcement need not be included in a notice of dishonor. However, the policy of this state is to encourage providing notice to the drawers of dishonored checks of the possibility of criminal action, whether or not the creditor or collector of the check intends to refer a specific check to law enforcement at the time the notice of dishonor is sent, or whether or not the creditor or collector regularly refers dishonored checks to law enforcement. Therefore, including the cautionary statement shall not be construed to be a threat to refer the check to law enforcement, to take any action not intended to be taken or to take any action that cannot legally be taken; nor shall it be construed to be harassing, oppressive, or abusive conduct; nor shall it be construed to be a false, deceptive, or misleading representation; nor shall it be construed to be an unfair or unconscionable means of collecting the dishonored check; nor shall it be construed to be a violation of any state, federal, or other law, including but not limited to the common law, the Washington consumer protection act (chapter 19.86 RCW) and the federal Fair Debt Collection Practices Act (15 U.S.C. Sec. 1692 et seq.).

Sec. 3   RCW 62A.3-522 and 2000 c 215 s 2 are each amended to read as follows:
     In addition to sending a notice of dishonor to the drawer of the check under RCW 62A.3-520, the person sending notice shall execute an affidavit certifying service of the notice by mail. The affidavit of service by mail must be attached to a copy of the notice of dishonor and must be substantially in the following form:


     AFFIDAVIT OF SERVICE BY MAIL


     I, . . . . . ., hereby certify that on the . . . . . . day of . . . . . ., 20. . ., a copy of the foregoing Notice was served on . . . . . . by mailing via the United States Postal Service, postage prepaid, at . . . . . ., Washington.
          Dated:               . . . . . . . . . . . . . . . .
                                   (Signature)

     ((The person enforcing the check shall retain the affidavit with the check but shall file a copy of the affidavit with the clerk of the court in which an action on the check is commenced.))

Sec. 4   RCW 62A.3-525 and 2000 c 215 s 3 are each amended to read as follows:
     No interest, collection costs, and attorneys' fees, except handling fees, are recoverable on any dishonored check under the provisions of RCW 62A.3-515 where a person entitled to such recovery or any agent, employee, or assign has demanded:
     (1) Interest or collection costs in excess of that provided by RCW 62A.3-515; or
     (2) Interest or collection costs prior to the expiration of ((fifteen)) thirty-five days after the mailing of notice of dishonor, as provided by RCW 62A.3-515 and 62A.3-520; or
     (3) Attorneys' fees ((either)) other than statutory attorneys' fees without having the fees set by the court, or any attorneys' fees prior to the expiration of ((fifteen)) thirty-five days after the mailing of notice of dishonor, as provided by RCW 62A.3-515 and 62A.3-520.

--- END ---