Session of 2000
SENATE BILL No. 589
By Committee on Judiciary
2-8
9 AN ACT
concerning civil procedure; relating to worthless checks;
10 amending K.S.A.
60-2611 and K.S.A. 1999 Supp. 60-2610 and repeal-
11 ing the existing
sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 1999 Supp. 60-2610 is hereby amended to read as
15 follows: 60-2610. (a) If a person gives a
worthless check, as defined by
16 subsection (g), the person shall be liable
to the holder of the check for
17 the amount of the check, the incurred court
costs, the costs of restricted
18 mail and the service
charge and the costs of collection, including but not
19 limited to reasonable attorney fees, plus
an amount equal to the greater
20 of the following:
21 (1) Damages equal
to three times the amount of the check but not
22 exceeding the amount of the check by more
than $500; or
23 (2) $100.
24 The court may waive
all or part of the attorney fees provided for by
25 this subsection, if the court finds that
the damages and other amounts
26 awarded are sufficient to adequately
compensate the holder of the check.
27 In the event the court waives all or part
of the attorney fees, the court
28 shall make written findings of fact as to
the specific reasons that the
29 amounts awarded are sufficient to
adequately compensate the holder of
30 the check.
31 (b) The amounts
specified by subsection (a) shall be recoverable in a
32 civil action brought by or on behalf of the
holder of the check only if: (1)
33 Not less than 14 days before filing the
civil action, the holder of the check
34 made written demand on the maker or drawer
for payment of the amount
35 of the check, and
the incurred service charge and the costs of
restricted
36 mail; and (2) the maker or
drawer failed to tender to the holder, prior to
37 the filing of the action, an amount not
less than the amount demanded.
38 The written demand shall be sent by
restricted mail, as defined by sub-
39 section (g),
first-class mail to the person to be given notice at such
per-
40 son's address as it appears on such check,
draft or order or to the last
41 known address of the maker or drawer and
shall include notice that, if
42 the money is not paid within 14 days,
triple damages in addition to an
43 amount of money equal to the sum of the
amount of the check, the
2
1 incurred court costs, service
charge, costs of restricted mail and the costs
2 of collection including but not
limited to reasonable attorney fees unless
3 the court otherwise orders, may be
incurred by the maker or drawer of
4 the check. Notice required by
subsection (b)(1) shall state the exact
5 amount and date due, as well as an
estimate of the amount that may be
6 incurred if the amount demanded is
not paid by the specified date.
7
(c) Subsequent to the filing of an action under this section
but prior
8 to the hearing of
commencement of a dispositional hearing by the court,
9 the defendant may tender to the
plaintiff as satisfaction of the claim, an
10 amount of money equal to the sum of the
amount of the check, the
11 incurred court costs, service
charge, costs of restricted mail and the costs
12 of collection, including but not limited to
reasonable attorney fees. The
13 plaintiff shall include in the petition
a statement alleging the amount that
14 the defendant may tender as satisfaction
of the claim as provided in this
15 subsection. If the amount alleged in the
petition is tendered to the plaintiff
16 in full satisfaction of the debt prior
to the commencement of the disposi-
17 tional hearing by the court, the case
shall be dismissed by the plaintiff.
18 For purposes of this subsection only,
the amount tendered as satisfaction
19 of the claim shall not include triple
damages or damages of $100 as pro-
20 vided in subsections (a)(1) and (2). For
purposes of this subsection, a
21 dispositional hearing means a trial or
other hearing by the court in which
22 the plaintiff is seeking the entry of
judgment against the defendant. The
23 court may waive all or part of the attorney
fees provided for by this sub-
24 section, if the court finds that the
damages and other amounts awarded
25 are sufficient to adequately compensate the
holder of the check. In the
26 event the court waives all or part of the
attorney fees, the court shall make
27 written findings of fact as to the specific
reasons that the amounts awarded
28 are sufficient to adequately compensate the
holder of the check.
29 (d) If the trier
of fact determines that the failure of the defendant to
30 satisfy the dishonored check was due to
economic hardship, the court
31 may waive all or part of the damages
provided for by this section, but the
32 court shall render judgment against
defendant for not less than the
33 amount of the dishonored check, the
incurred court costs, service charge,
34 costs of restricted mail
and the costs of collection, including but not lim-
35 ited to reasonable attorney fees, unless
otherwise provided in this sub-
36 section. The court may waive all or part of
the attorney fees provided for
37 by this subsection, if the court finds that
the damages and other amounts
38 awarded are sufficient to adequately
compensate the holder of the check.
39 In the event the court waives all or part
of the attorney fees, the court
40 shall make written findings of fact as to
the specific reasons that the
41 amounts awarded are sufficient to
adequately compensate the holder of
42 the check.
43 (e) Any amount
previously paid as restitution or reparations to the
3
1 holder of the check by its maker or
drawer shall be credited against the
2 amount for which the maker or drawer
is liable under subsection (a).
3
(f) Conviction of giving a worthless check or habitually
giving a worth-
4 less check, as defined by K.S.A.
21-3707 and 21-3708 and amendments
5 thereto, shall not be a prerequisite
or bar to recovery pursuant to this
6 section.
7 (g) As used
in this section:
8 (1) "Giving
a worthless check" means the making, drawing, issuing
9 or delivering or causing or directing
the making, drawing, issuing or de-
10 livering of any check, order or draft on
any bank, credit union, savings
11 and loan association or depository for the
payment of money or its
12 equivalent:
13 (A) With intent
to defraud or in payment for a preexisting debt; and
14 (B) which is
dishonored by the drawee because the maker or drawer
15 had no deposits in or credits with the
drawee or has not sufficient funds
16 in, or credits with, the drawee for the
payment of such check, order or
17 draft in full upon its presentation.
18
(2) "Restricted mail" means mail which carries on its
face the en-
19 dorsements "restricted mail" and
"deliver to addressee only."
20
(3) "Service charge" means $10, or subject to
limitations contained
21 in this subsection, if a larger amount is
posted conspicuously, the larger
22 amount. In no event shall the amount of
such insufficient check service
23 charge exceed $30.
24 Sec.
2. K.S.A. 60-2611 is hereby amended to read as follows:
60-
25 2611. In any civil action to enforce
payment of or to collect upon a check,
26 order or draft on any bank, credit union,
savings and loan association or
27 depository for the payment of money or its
equivalent, payment upon
28 which such instrument has been refused
because of insufficient funds or
29 no account, the party prevailing on such
cause of action shall be awarded
30 reasonable attorney
fees,. Such fees to
shall be assessed by the court as
31 costs against the losing party. The fees
shall not be allowed unless the
32 plaintiff offers proof during the trial of
such action that prior to the filing
33 of the petition in the action demand for
payment of the check, order or
34 draft had been made upon the defendant by
registered first-class mail
35 not less than 14 days prior to the filing
of such suit.
36 Sec. 3. K.S.A. 60-2611 and
K.S.A. 1999 Supp. 60-2610 are hereby
37 repealed.
38 Sec. 4. This act shall
take effect and be in force from and after its
39 publication in the statute book.