S-951                 _______________________________________________

 

                                                   SENATE BILL NO. 3404

                        _______________________________________________

 

State of Washington                              49th Legislature                              1985 Regular Session

 

By Senator Moore

 

 

Read first time 1/29/85 and referred to Committee on Financial Institutions.

 

 


AN ACT Relating to negotiable instruments; amending RCW 9A.56.060 and 62A.3-515; and providing penalties.

 

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

 

        Sec. 1.  Section 9A.56.060, chapter 260, Laws of 1975 1st ex. sess. as last amended by section 1, chapter 138, Laws of 1982 and RCW 9A.56.060 are each amended to read as follows:

          (1) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft, on a bank or other depository for the payment of money, knowing at the time of such drawing, or delivery, that he has not sufficient funds in, or credit with said bank or other depository, to meet said check or draft, in full upon its presentation, shall be guilty of unlawful issuance of bank check.  The word "credit" as used herein shall be construed to mean an arrangement or understanding with the bank or other depository for the payment of such check or draft, and the uttering or delivery of such a check or draft to another person without such fund or credit to meet the same shall be prima facie evidence of an intent to defraud.

          (2) Any person who shall with intent to defraud, make, or draw, or utter, or deliver to another person any check, or draft on a bank or other depository for the payment of money and who issues a stop-payment order directing the bank or depository on which the check is drawn not to honor said check, and who fails to make payment of money in the amount of the check or draft or otherwise arrange a settlement agreed upon by the holder of the check within twenty days of issuing said check or draft shall be guilty of unlawful issuance of a bank check.

          (3) When any series of transactions which constitute unlawful issuance of a bank check would, when considered separately, constitute unlawful issuance of a bank check in an amount of two hundred fifty dollars or less because of value, ((and the series of transactions are a part of a common scheme or plan,)) the transactions may be aggregated in one count and the sum of the value of all of the transactions shall be the value considered in determining whether the unlawful issuance of a bank check is to be punished as a class C felony or a gross misdemeanor.

          (4) Unlawful issuance of a bank check in an amount greater than two hundred fifty dollars is a class C felony.

          (5) Unlawful issuance of a bank check in an amount of two hundred fifty dollars or less is a gross misdemeanor and shall be punished as follows:

          (a) The court shall order the defendant to make full restitution within six months of the date of sentencing;

          (b) The defendant need not be imprisoned, but the court shall impose a minimum fine of five hundred dollars.  Of the fine imposed, at least fifty dollars shall not be suspended or deferred.  Upon conviction for a second offense within any twelve-month period, the court may suspend or defer only that portion of the fine which is in excess of five hundred dollars.

 

        Sec. 2.  Section 1, chapter 23, Laws of 1967 ex. sess. as last amended by section 1, chapter 254, Laws of 1981 and RCW 62A.3-515 are each amended to read as follows:

          (1) Whenever a check or draft as defined in RCW  62A.3-104 has been dishonored by nonacceptance or nonpayment the payee or holder of the check or draft is entitled to collect a reasonable handling fee for each such instrument.  When such check or draft has not been paid within fifteen days and after the holder of such check or draft sends such notice of dishonor as provided by RCW  62A.3-520 to the drawer at his last known address, then if the instrument does not provide for the payment of interest, or collection costs and attorneys fees, the drawer of such instrument shall also be liable for payment of interest at the rate of twelve percent per annum from the date of dishonor and cost of collection not to exceed forty dollars or the face amount of the check or draft, whichever is the lesser.  In addition, in the event of court action on the check or draft the court, after such notice and the expiration of said fifteen days, shall award a reasonable attorneys fee as part of the damages payable to the holder of the check or draft.  This section shall not apply to any instrument which has been dishonored by reason of any justifiable stop payment order.

          (2) Notwithstanding any criminal penalties which may apply, in any action against a person who makes any check or draft as defined in RCW 62A.3-104 for the payment of money which has been dishonored for lack of funds or credit to pay the same, or because the maker has no account with the drawee, the payee or holder may recover from the defendant a civil penalty in an amount equal to one hundred dollars or triple the amount for which the check or draft is drawn, whichever is greater.  However, a penalty recovered under this subsection shall not exceed by more than five hundred dollars the amount of the check or draft and may be awarded only if the plaintiff mails a written demand of the defendant for payment of the amount of the check or draft not less than twenty-one days before commencing the action and if the defendant failed to tender to the plaintiff, prior to commencement of the action, an amount of money not less than the amount demanded.  Subsequent to the commencement of the action but prior to the hearing, the defendant may tender to the plaintiff as satisfaction of the claim, an amount of money equal to the sum of the amount of the check or draft, the incurred court and service costs, and statutory interest from the date of the check or draft.  If the court or jury determines that the failure of the defendant to satisfy the dishonored check or draft was due to economic hardship, the court or jury may waive all or part of the statutory penalty.  However, if the court or jury waives all or part of the statutory penalty, the court or jury shall render judgment against the defendant in the amount of the dishonored check or draft, incurred court and service costs, and statutory interest from the date of the check or draft.  Nothing in this section precludes the right to commence action in any court under chapter 12.40 RCW for small claims.  The remedies in this subsection are in addition to any other rights granted in subsection (1) of this section.