Other Debt How to deal with a witheld check

[timbo59]

We recently had a situation where we decided not to renew a lease with a troublesome tenant in one of our properties, and the situation has become somewhat ugly unfortunately, as the tenant has not taken kindly to having his family 'evicted' from his perspective.

We received a call from our bank a few days ago that the check for the last month's rent has been cancelled by the tenant, and my wife is of the opinion that we now have legal grounds to pursue legal action on the basis of fraud - I think the legalities she referred to are that we can now issue a request that the check be honored within 30 days, and that we can then follow the requisite legal course to take action over the matter should he refuse to do so, with a triple amount as penalty. Oddly enough, even though we've owned rental properties for 6 years this is the first time a tenant has actually bounced a check on us going out - we've had another tenant leave before owing money, but she never wrote us a dud check prior to breaking the lease and absconding.

It's kind of confusing for us, as we seem to have two angles to pursuing the individual. First via the check, and secondly through the more normal channel of seeking restitution for lost rent, damages to the property, cleaning, etc, which is a path we've successfully taken once before.

It doesn't seem logical to us why the tenant would have taken this line of thought, because had he honored the check on his way out, we would have had our month's rent and he in turn would have received his one-month deposit in return, less any charges for the aforementioned repairs and cleaning. Now he stands to lose considerably more - at least on paper - and ruin what was already a shaky financial record. Our one thought is that they may have done considerably more harm to the property than we discovered.

 

[army judge]

You have a couple of options as to how you address the "NSF" check.

We recently had a situation where we decided not to renew a lease with a troublesome tenant in one of our properties, and the situation has become somewhat ugly unfortunately, as the tenant has not taken kindly to having his family 'evicted' from his perspective.

We received a call from our bank a few days ago that the check for the last month's rent has been cancelled by the tenant, and my wife is of the opinion that we now have legal grounds to pursue legal action on the basis of fraud - I think the legalities she referred to are that we can now issue a request that the check be honored within 30 days, and that we can then follow the requisite legal course to take action over the matter should he refuse to do so, with a triple amount as penalty. Oddly enough, even though we've owned rental properties for 6 years this is the first time a tenant has actually bounced a check on us going out - we've had another tenant leave before owing money, but she never wrote us a dud check prior to breaking the lease and absconding.

It's kind of confusing for us, as we seem to have two angles to pursuing the individual. First via the check, and secondly through the more normal channel of seeking restitution for lost rent, damages to the property, cleaning, etc, which is a path we've successfully taken once before.

It doesn't seem logical to us why the tenant would have taken this line of thought, because had he honored the check on his way out, we would have had our month's rent and he in turn would have received his one-month deposit in return, less any charges for the aforementioned repairs and cleaning. Now he stands to lose considerably more - at least on paper - and ruin what was already a shaky financial record. Our one thought is that they may have done considerably more harm to the property than we discovered.

You can add the now worthless check to your existing eviction action as additional damages you suffered, using the value of the check to allow you to offset the check against her deposit, or violating the lease agreement (assuming the lease is written and has such a standard provision).


You can also contact your local state attorney.
The state attorney's office will then pursue criminal charges, as well as reimbursement for the amount of your loss (face value of the check and bank fees) only).

I've provided you with information on the above process for the 10th Judicial Circuit, operating across Polk, Highlands, and Hardee Counties.
That will get you started on ow the program works, and then you can search for a similar one in serving your county.

What Should I Do When I Receive a Worthless Check?

Send the required 15-day statutory notice letter to the person who gave you the worthless check. This gives the person passing the bad check seven(7) days from the receipt of your letter a notice to pay you the face amount of the check, plus a service charge which should not exceed the following amounts:
Amount of Check $50.00 or Less........................... Fee = $25 per Check
Amount of Check $50.01 - $300.00....................... Fee = $30.00 per Check
Amount of Check $300.01 or More....................... Fee = $40.00 per Check

Or an amount equal to 5% on the face Value of the Check, whichever is greater.




Why Should a Registered or Certified Letter Be Sent?
It generates restitution and allows you to collect service charges which should more than offset the cost of sending registered or certified mail.
It strengthens our prosecution case if the defendant goes to trial because it increases the presumption of guilt plus it gives us a physical piece of evidence to support your testimony as to the transaction.
The letter gives you immunity from civil liability under Florida Statute 832.07. Liability insurance coverage to protect you from civil suits for false arrest, malicious prosecution, or slander would cost you far more than costs of mailing registered or certified notices.
If the check is returned "NO ACCOUNT" or "ACCOUNT CLOSED", you do not need to send a statutory notice letter.
Once you have either received the return receipt or the unclaimed letter and have waited the required seven days from the date the check writer would have received the letter, criminal prosecution may begin.
Filing Criminal Charges - To file a criminal charge, go to the law enforcement agency which has jurisdiction over the location where the check was issued. The following documents must be presented when charges are filed on worthless checks: a. The original check(s) and the original certified/registered mail receipt (green card) from the notice, or the returned unopened envelope containing the notice. b. Names of witnesses who know something about the check. c. The complaint affidavit fully completed and notarized. d. Contracts, receipts or other supporting documents.
Do not delay filing your complaint after the seven days have passed or the certified letter has been returned. Promises made by the maker are, for the most part, of no more value that the check itself.
Do make sure that the check is stamped by the bank indicating the reason it was dishonored. Without the stamp, prosecution is not possible.



Florida Statutes. Section 832.041, indicates that stopping payment on a check, draft, or other written payment order can be charged as a criminal offense if the check was issued and payment was stopped with the intent to defraud the payee named on the instrument.

In order for the state to prove the crime of Stopping Payment on a Check in Florida, the prosecution must establish five factual elements beyond a reasonable doubt:

1. The defendant issued, made, drew, delivered, or gave a check or other written payment order (with the check or other payment order being made upon a bank, person, or corporation);
   [*] The defendant did so with the intent to defraud;
   [*] The defendant obtained goods or services for or on account of the check or other payment order;
   [*] The defendant stopped payment on the check or other payment order;
   [*] The defendant stopped payment pursuant to the intent to defraud.

Office of the State Attorney for the 10th Judicial Circuit, State Attorney Jerry Hill, serving Polk, Highlands, and Hardee Counties explains the statute and its consequences on his website:

http://www.sao10.com/worthless_checks.asp

You can search the 'net for your county, and see how the law is enforced in your area.



What Should I Do When I Receive a Worthless Check?

Send the required 15-day statutory notice letter to the person who gave you the worthless check. This gives the person passing the bad check seven(7) days from the receipt of your letter a notice to pay you the face amount of the check, plus a service charge which should not exceed the following amounts:
Amount of Check $50.00 or Less........................... Fee = $25 per Check
Amount of Check $50.01 - $300.00....................... Fee = $30.00 per Check
Amount of Check $300.01 or More....................... Fee = $40.00 per Check

Or an amount equal to 5% on the face Value of the Check, whichever is greater.




Why Should a Registered or Certified Letter Be Sent?
It generates restitution and allows you to collect service charges which should more than offset the cost of sending registered or certified mail.
It strengthens our prosecution case if the defendant goes to trial because it increases the presumption of guilt plus it gives us a physical piece of evidence to support your testimony as to the transaction.
The letter gives you immunity from civil liability under Florida Statute 832.07. Liability insurance coverage to protect you from civil suits for false arrest, malicious prosecution, or slander would cost you far more than costs of mailing registered or certified notices.
If the check is returned "NO ACCOUNT" or "ACCOUNT CLOSED", you do not need to send a statutory notice letter.
Once you have either received the return receipt or the unclaimed letter and have waited the required seven days from the date the check writer would have received the letter, criminal prosecution may begin.
Filing Criminal Charges - To file a criminal charge, go to the law enforcement agency which has jurisdiction over the location where the check was issued. The following documents must be presented when charges are filed on worthless checks: a. The original check(s) and the original certified/registered mail receipt (green card) from the notice, or the returned unopened envelope containing the notice. b. Names of witnesses who know something about the check. c. The complaint affidavit fully completed and notarized. d. Contracts, receipts or other supporting documents.
Do not delay filing your complaint after the seven days have passed or the certified letter has been returned. Promises made by the maker are, for the most part, of no more value that the check itself.
Do make sure that the check is stamped by the bank indicating the reason it was dishonored. Without the stamp, prosecution is not possible.





What are the Penalties for Passing a Worthless Check?
Worthless checks are either 1st-degree Misdemeanors or 3rd-degree Felonies under Florida law. A 1st-degree Misdemeanor can mean up to one year in a County Jail and a $1,000 fine, while a 3rd-degree Felony can mean up to five years in a State Prison and a $5,000 fine. Sentences may also include probation, payment of supervision costs(probationary fees),payment of restitution, merchant fees(based on the value of the check), community service work, and court costs.





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