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12  AN ACT concerning civil procedure; relating to worthless checks; amend-
13    ing K.S.A. 1996 Supp. 60-2610 and repealing the existing section.
14
15  Be it enacted by the Legislature of the State of Kansas:
16    Section 1.  K.S.A. 1996 Supp. 60-2610 is hereby amended to read as
17  follows: 60-2610. (a) If a person gives a worthless check, as defined by
18  subsection (g), the person shall be liable to the holder of the check for
19  the amount of the check, the incurred court costs, the costs of restricted
20  mail and the service charge and the costs of collection, including but not
21  limited to reasonable attorney fees, plus an amount equal to the greater
22  of the following:
23    (1)  Damages equal to three times the amount of the check but not
24  exceeding the amount of the check by more than $500; or
25    (2)  $100.
26    The court may waive all or part of the attorney fees provided for by
27  this subsection, if the court finds that the damages and other amounts
28  awarded are sufficient to adequately compensate the holder of the check.
29  In the event the court waives all or part of the attorney fees, the court
30  shall make written findings of fact as to the specific reasons that the
31  amounts awarded are sufficient to adequately compensate the holder of
32  the check.
33    (b)  The amounts specified by subsection (a) shall be recoverable in a
34  civil action brought by or on behalf of the holder of the check only if: (1)
35  Not less than 14 days before filing the action, the holder of the check
36  made written demand on the maker or drawer for payment of the amount
37  of the check, the incurred service charge and the costs of restricted mail;
38  and (2) the maker or drawer failed to tender to the holder, prior to the
39  filing of the action, an amount not less than the amount demanded. The
40  written demand shall be sent by restricted mail, as defined by subsection
41    (g), to the person to be given notice at such person's address as it appears
42  on such check, draft or order or to the last known address of the maker
43  or drawer and shall include notice that, if the money is not paid within
HB 2205--Am.
                                     

 1  14 days, triple damages in addition to an amount of money equal to the
 2  sum of the amount of the check, the incurred court costs, service charge,
 3  costs of restricted mail and the costs of collection including but not limited
 4  to reasonable attorney fees unless the court otherwise orders, may be
 5  incurred by the maker or drawer of the check.
 6    (c)  Subsequent to the filing of an action under this section but prior
 7  to the hearing of the court, the defendant may tender to the plaintiff as
 8  satisfaction of the claim, an amount of money equal to the sum of the
 9  amount of the check, the incurred court costs, service charge, costs of
10  restricted mail and the costs of collection, including but not limited to
11  reasonable attorney fees. The court may waive all or part of the attorney
12  fees provided for by this subsection, if the court finds that the damages
13  and other amounts awarded are sufficient to adequately compensate the
14  holder of the check. In the event the court waives all or part of the
15  attorney fees, the court shall make written findings of fact as to the spe-
16  cific reasons that the amounts awarded are sufficient to adequately com-
17  pensate the holder of the check.
18    (d)  If the trier of fact determines that the failure of the defendant to
19  satisfy the dishonored check was due to economic hardship, the court
20  may waive all or part of the damages provided for by this section, but the
21  court shall render judgment against defendant for not less than the
22  amount of the dishonored check, the incurred court costs, service charge,
23  costs of restricted mail and the costs of collection, including but not lim-
24  ited to reasonable attorney fees, unless otherwise provided in this sub-
25  section. The court may waive all or part of the attorney fees provided for
26  by this subsection, if the court finds that the damages and other amounts
27  awarded are sufficient to adequately compensate the holder of the check.
28  In the event the court waives all or part of the attorney fees, the court
29  shall make written findings of fact as to the specific reasons that the
30  amounts awarded are sufficient to adequately compensate the holder of
31  the check.
32    (e)  Any amount previously paid as restitution or reparations to the
33  holder of the check by its maker or drawer shall be credited against the
34  amount for which the maker or drawer is liable under subsection (a).
35    (f)  Conviction of giving a worthless check or habitually giving a worth-
36  less check, as defined by K.S.A. 21-3707 and 21-3708 and amendments
37  thereto, shall not be a prerequisite or bar to recovery pursuant to this
38  section.
39    (g)  As used in this section:
40    (1)  ``Giving a worthless check'' means the making, drawing, issuing
41  or delivering or causing or directing the making, drawing, issuing or de-
42  livering of any check, order or draft on any bank, credit union, savings
43  and loan association or depository for the payment of money or its equiv-
HB 2205--Am.
                                     

 1  alent:
 2    (A)  With intent to defraud or in payment for a preexisting debt; and
 3    (B)  which is dishonored by the drawee because the maker or drawer
 4  had no deposits in or credits with the drawee or has not sufficient funds
 5  in, or credits with, the drawee for the payment of such check, order or
 6  draft in full upon its presentation.
 7    (2)  ``Restricted mail'' means mail which carries on its face the en-
 8  dorsements ``restricted mail'' and ``deliver to addressee only.''
 9    (3)  ``Service charge'' means $10, or subject to limitations contained
10  in this subsection, if a larger amount is posted conspicuously, the larger
11  amount. In no event shall the amount of such insufficient check service
12  charge exceed $30.
13    (4)  ``Intent to defraud'' means:
14    (A)  The maker, drawer or insurer of such check, order or draft, knew
15  or should have known that there were insufficient funds in, or on deposit
16  with, the drawee at the time the check, order or draft was given, drawn
17  or issued; or
18    (B)  the maker, drawer or insurer has failed to pay the holder of the
19  check, order or draft the amount due thereon, including the face value,
20  service charge and costs of restricted mail, within 14 days after the maker,
21  drawer or insurer knew or should have known that the check, order or
22  draft was dishonored or was not paid by the drawee.
23    (5)  ``Reasonable attorney fees'' means an amount equal to three times
24  hours of the hourly rate for an experienced attorney within the com-
25  munity in which the check, order or draft was made, drawn, issued or
26  given judicial district in which the case is heard.
27    Sec. 2.  K.S.A. 1996 Supp. 60-2610 is hereby repealed.
28    Sec. 3.  This act shall take effect and be in force from and after its
29  publication in the statute book.