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Brian Don Levy, Attorney at Law

LEGAL FORMS

Mr. Levy has been practicing law continually since 1973, and during his career has developed an extensive collection of general California Legal Forms. The nature and number of these forms is simply too extensive to list here, and we continue to add to and improve our existing base of legal forms as laws change or are added.

Our supply of legal forms ranges from powers of attorney, to rental agreements, to simple wills. If you have a need for a general California Legal Form, contact Lawyer@CalAttorney.com. We will reply within 24 hours with the availability of the particular form that you request along with a price quote.

HAVING A PROBLEM WITH BAD CHECKS?

IF YOU ARE IN BUSINESS AND ACCEPT CHECKS, YOU NEED THIS FORM!

Do you accept checks in your business? Do you have problems with bad checks? Did you know that under California law, you may be entitled to additional damages if you are the recipient of a bad check?

The following form is based upon Civil Code Section 1719, which provides for penalties if you receive a bad check and it is not made good in a timely fashion. Copy the following and use it in your business!

NOTICE PURSUANT TO CIVIL CODE SECTION 1719

TO:

[YOUR NAME] is the payee of a check you wrote in the sum of $        . This check was not paid because of , and the payee hereby demands payment. You may have a good faith dispute as to whether you owe the full amount. If you do not have a good faith dispute with the payee and fail to pay the payee the full amount of the check in cash within thirty (30) days after this Notice was mailed, you could be sued and held responsible to pay at least all of the following:

1: The amount of the check;

2: Damages of at least $100.00 or, if higher, three times the amount of the check up to a maximum of $1,500.00;

3: The cost of mailing this Notice;

If the court determines that you do have a good faith dispute with the payee, you will not have to pay the damages and mailing cost mentioned herein. If you have stopped payment because you have a good faith dispute with the payee, you should try to work out your dispute with the payee. You can contact the payee as follows:

[YOUR NAME]

[YOUR ADDRESS]

, California

[YOUR TELEPHONE NUMBER]

You may wish to contact a lawyer to discuss your legal rights and responsibilities.

Civil Code Section 1719 states as follows:

1719. Passage of checks on insufficient funds; Liability for specified amounts including treble damages

(a) (1) Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for the amount of the check and a service charge payable to the payee for an amount not to exceed twenty-five dollars ($25) for the first check passed on insufficient funds and an amount not to exceed thirty-five dollars ($35) for each subsequent check to that payee passed on insufficient funds.

(2) Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for damages equal to treble the amount of the check if a written demand for payment is mailed by certified mail to the person who had passed a check on insufficient funds and the written demand informs this person of (A) the provisions of this section, (B) the amount of the check, and (C) the amount of the service charge payable to the payee. The person who had passed a check on insufficient funds shall have 30 days from the date the written demand was mailed to pay the amount of the check, the amount of the service charge payable to the payee, and the costs to mail the written demand for payment. If this person fails to pay in full the amount of the check, the service charge payable to the payee, and the costs to mail the written demand within this period, this person shall then be liable instead for the amount of the check, minus any partial payments made toward the amount of the check or the service charge within 30 days of the written demand, and damages equal to treble that amount, which shall not be less than one hundred dollars ($100) nor more than one thousand five hundred dollars ($1,500). When a person becomes liable for treble damages for a check that is the subject of a written demand, that person shall no longer be liable for any service charge for that check and any costs to mail the written demand.

(3) Notwithstanding paragraphs (1) and (2), a person shall not be liable for the service charge, costs to mail the written demand, or treble damages if he or she stops payment in order to resolve a good faith dispute with the payee. The payee is entitled to the service charge, costs to mail the written demand, or treble damages only upon proving by clear and convincing evidence that there was no good faith dispute, as defined in subdivision (b).

(4) Notwithstanding paragraph (1), a person shall not be liable under that paragraph for \softpage the service charge if, at any time, he or she presents the payee with written confirmation by his or her financial institution that the check was returned to the payee by the financial institution due to an error on the part of the financial institution.

(5) Notwithstanding paragraph (1), a person shall not be liable under that paragraph for the service charge if the person presents the payee with written confirmation that his or her account had insufficient funds as a result of a delay in the regularly scheduled transfer of, or the posting of, a direct deposit of a social security or government benefit assistance payment.

(6) As used in this subdivision, to "pass a check on insufficient funds" means to make, utter, draw, or deliver any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation that refuses to honor the check, draft, or order for any of the following reasons:

(A) Lack of funds or credit in the account to pay the check.

(B) The person who wrote the check does not have an account with the drawee.

(C) The person who wrote the check instructed the drawee to stop payment on the check.

(b) For purposes of this section, in the case of a stop payment, the existence of a "good faith dispute" shall be determined by the trier of fact. A "good faith dispute" is one in which the court finds that the drawer had a reasonable belief of his or her legal entitlement to withhold payment. Grounds for the entitlement include, but are not limited to, the following: services were not rendered, goods were not delivered, goods or services purchased are faulty, not as promised, or otherwise unsatisfactory, or there was an overcharge.

(c) In the case of a stop payment, the notice to the drawer required by this section shall be in substantially the following form: [For tabular material, see Deering's Tables and Graphics Reference.]

(d) In the case of a stop payment, a court may not award damages or costs under this section unless the court receives into evidence a copy of the written demand which, in that case, shall have been sent to the drawer and a signed certified mail receipt showing delivery, or attempted delivery if refused, of the written demand to the drawer's last known address.

(e) A cause of action under this section may be brought in small claims court by the original payee, if it does not exceed the jurisdiction of that court, or in any other appropriate court. The payee shall, in order to recover damages because the drawer instructed the drawee to stop payment, show to the satisfaction of the trier of fact that there was a reasonable effort on the part of the payee to reconcile and resolve the dispute prior to pursuing the dispute through the courts.

(f) A cause of action under this section may be brought in municipal court by a holder of the check or an assignee of the payee. However, if the assignee is acting on behalf of the payee, for a flat fee or a percentage fee, the assignee may not charge the payee a greater flat fee or percentage fee for that portion of the amount collected that represents treble damages than is charged the payee for collecting the face amount of the check, draft, or order. This subdivision shall not apply to an action brought in small claims court.

(g) Notwithstanding subdivision (a), if the payee is a municipal court, the written demand for payment described in subdivision (a) may be mailed to the drawer by a municipal court clerk. Notwithstanding subdivision (d), in the case of a stop payment where the \softpage demand is mailed by a municipal court clerk, a court may not award damages or costs pursuant to subdivision (d), unless the court receives into evidence a copy of the written demand, and a certificate of mailing by a municipal court clerk in the form provided for in subdivision (4) of Section 1013a of the Code of Civil Procedure for service in civil actions. For purposes of this subdivision, in courts where a single court clerk serves more than one court, the clerk shall be deemed the court clerk of each court.

(h) The requirements of this section in regard to remedies are mandatory upon a court.

(i) The assignee of the payee or a holder of the check may demand, recover, or enforce the service charge, damages, and costs specified in this section to the same extent as the original payee.

(j) (1) A drawer is liable for damages and costs only if all of the requirements of this section have been satisfied.

(2) The drawer shall in no event be liable more than once under this section on each check for a service charge, damages, or costs.

(k) Nothing in this section is intended to condition, curtail, or otherwise prejudice the rights, claims, remedies, and defenses under Division 3 (commencing with Section 3101) of the Commercial Code of a drawer, payee, assignee, or holder, including a holder in due course as defined in Section 3302 of the Commercial Code, in connection with the enforcement of this section.

DATED:

[YOUR NAME]

Our supply of legal forms ranges from powers of attorney, to rental agreements, to simple wills. If you have a need for a California Legal Form, contact Lawyer@CalAttorney.com. We will reply same day or next day with the availability of the particular form that you request along with a price quote. We accept Visa, Mastercard and Discover Card.

 

THE LAW OFFICE OF BRIAN DON LEVY
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