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BAD CHECK DEMANDS

First and foremost, giving a check that does not clear the bank could be a crime in Florida. It may also be a crime to provide a debit card that does not provide for clear funds. Florida Statute 832.05 explains more details about when it could be a crime for a tenant to give a bad check to the Landlord, Investor or Property Manager. That statute says:

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.

SENDING TENANTS A WORTHLESS CHECK DEMAND LETTER TO GET MONEY. While it is a crime to intentionally give a Landlord a check that knowingly does not clear the bank for insufficient funds, most Landlords, Investors & Property Managers are more concerned with just collecting the money owed. Florida Statute §68.065 offers a way to resolve the worthless check or uncleaned debit card situation.

MONEY A LANDLORD, INVESTOR OR PROPERTY MANAGER MAY BE ENTITLED TO: in addition to the amount of the original payment due, the tenant would also be entitled to “plus a service charge of $25 if the face value does not exceed $50; $30 if the face value exceeds $50 but does not exceed $300; $40 if the face value exceeds $300; or 5 percent of the face value of the payment instrument, whichever is greater.”

AND

In the event a lawsuit is brought to collect the amount unpaid, the Landlord, Investor or Property Manager will be entitled to triple the amount of the amount unpaid. Plus, the tenant will be obligated to prepay the legal fees incurred by the Landlord, Investor or Property Manager.

DEMAND LETTER TO TENANT: Before starting a lawsuit, the Landlord, Investor or Property Manager must send a demand letter to the tenant that states:

“You are hereby notified that a check, draft, order of payment, debit card order, or electronic funds transfer numbered in the face amount of $ issued by you on (date) , drawn upon (name of bank) , and payable to , has been dishonored. Pursuant to Florida law, you have 30 days from receipt of this notice to tender payment in cash of the full amount of the dishonored payment instrument, plus a service charge of $25 if the face value does not exceed $50, $30 if the face value exceeds $50 but does not exceed $300, $40 if the face value exceeds $300, or 5 percent of the face amount of the dishonored instrument, whichever is greater, the total amount due being $ and cents. Unless this amount is paid in full within the 30-day period, the holder of the dishonored payment instrument may file a civil action against you for three times the amount of the dishonored instrument, but in no case less than $50, in addition to the payment of the dishonored instrument plus any court costs, reasonable attorney fees, and any bank fees incurred by the payee in taking the action.”

The Eviction Law Firm can assist the client with collecting
debts owed by tenants, including recovery for uncleared checks.

Bad Check Claims to the State Attorney’s Office:

Miami-Dade County State Attorney’s Office Bad Check Complaint
http://miamisao.com/services/badcheck/

Broward County State Attorney’s Office Bad Check Complaint
http://www.checkprogram.com/staticwebsites/browardcountyfl/

Palm Beach County State Attorney’s Office Bad Check Complaint
http://www.checkprogram.com/staticwebsites/15thjudicialfl/

Monrow County State Attorney’s Office Bad Check Complaint
http://www.co.monroe.mi.us/government/departments_offices/prosecuting_attorney/bad_check_program.html

Lee County and Collier County State Attorney’s Office Bad Check Complaint
http://sao.cjis20.org/worthless_checks.htm

Pinellas County State Attorney’s Office Bad Check Complaint
http://www.sao6.org/bad_checks.htm

Hillsborough County State Attorney’s Office Bad Check Complaint
http://www.sao13th.com/worthlesscheck.htm

Polk County, Highlands County, Hardee County State Attorney’s Office Bad Check Complaint
http://www.sao10.com/worthless_checks.asp

St. Lucie County State Attorney’s Office Bad Check Complaint
http://www.stluciesheriff.com/worthless_checks.php

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