Dealing with a bad check

[Danceswithwires]

I guess I'm lucky, I've never had to deal with this before and I know nothing about the best way to deal with this, any and all information and advice is appreciated. I'll try to keep this short and simple, I did work for this guy (trusted as a buddy of mine usually does his work and never had trouble) invoiced him for $2634.24 He sends me a check for $2316.15 (the sum of 2 of the 3 invoice sheets I sent him) I deposited it and sent him a Email saying he was $306.09 short. He sends me a check for $201.15 Before I deposited that I find out his first check has bounced and I did not deposit the 2nd check. Both checks were cut from his company's account. In a phone conversation he tells me it's his fault, he screwed up, thought the "extra" money in his account was his and he spent it, he's semi retired, gets social security and he will pay me what he can after he makes the house payment. He tells me he has sent a check for $500, I'm not interested in waiting 5+ months to get paid. My buddy tells me he does have some assets, house, travel trailer, tools, welders. I just want to get paid what I'm owed but I would like to know about going after him for the bad check, mostly to use as a motivational tool but I may end up having to do it too. TIA

[davsel]

Small claims court - up to $7500.
Easy to file, no need for an attorney.

[Great-Kazoo]

Honest Hamid' s 25% recovery fee. $10K minimum, plus expenses. Any attorney fees are out of clients pocket.

J:K

[sniper7]

This guy I know, we will call him Jim, breaks kneecaps for a fee.

[rbeau30]

Send him a demand letter co law says they have 15 days from receipt of the letter to comply otherwise you can sue for 3 times the check amount.

Small claims court will ask if you sent a demand letter.

http://www.colorado.gov/cs/Satellite...&ssbinary=true

C.R.S. 13-21-109

COLORADO REVISED STATUTES
*** This document reflects changes current through all laws passed at the First Regular Session
of the Sixty-Ninth General Assembly of the State of Colorado (2013) ***
TITLE 13. COURTS AND COURT PROCEDURE
DAMAGES
ARTICLE 21.DAMAGES
PART 1. GENERAL PROVISIONS
C.R.S. 13-21-109 (2013)
13-21-109. Recovery of damages for checks, drafts, or orders not paid upon presentment



(1) Any person who obtains money, merchandise, property, or other thing of value, or who makes any payment of any obligation other than an obligation on a consumer credit transaction as defined in section 5-1-301, C.R.S., by means of making any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation which is not paid upon its presentment is liable to the holder of such check, draft, or order or any assignee for collection for one of the following amounts, at the option of the holder or such assignee:

(a) The face amount of the check, draft, or order plus actual damages determined in accordance with the provisions of the "Uniform Commercial Code", title 4, C.R.S.; or

(b) An amount equal to the face amount of the check, draft, or order and:

(I) The amount of any reasonable posted or contractual charge not exceeding twenty dollars; and

(II) If the check, draft, or order has been assigned for collection to a person licensed as a collection agency pursuant to article 14 of title 12, C.R.S., as costs of collection, twenty percent of the face amount of the check, draft, or order but not less than twenty dollars; or

(c) An amount as provided in subsection (2) of this section.

(2) (a) If notice of nonpayment on presentment of the check, draft, or order has been given in accordance with subsections (3) and (4) of this section and the total amount due as set forth in the notice has not been paid within fifteen days after such notice is given, instead of the amounts set forth in paragraph (a) or (b) of subsection (1) of this section, the person shall be liable to the holder or any assignee for collection for three times the face amount of the check but not less than one hundred dollars and, with regard to a paycheck, actual damages caused by the nonpayment, including associated late fees.

(b) The person, also referred to in this section as the "maker", shall not be liable in accordance with the provisions of paragraph (a) of this subsection (2) if he establishes any one of the following:

(I) That the account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was made, plus all other checks, drafts, and orders on the account then outstanding and unpaid;

(II) That the check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentment;

(III) That funds sufficient to cover the check, draft, or order were garnished, attached, or set off and the maker had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was made;

(IV) That the maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was made;

(V) That the making of the check, draft, or order was induced by fraud or duress;

(VI) That the transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.

(3) Notice that a check, draft, or order has not been paid upon presentment shall be in writing and given in person and receipted for, or by personal service, or by depositing the notice by certified mail, return receipt requested and postage prepaid, or by regular mail supported by an affidavit of mailing sworn and retained by the sender, in the United States mail and addressed to the recipient's most recent address known to the sender. If the notice is mailed and not returned as undeliverable by the United States postal service, notice shall be conclusively presumed to have been given on the date of mailing. For the purpose of this subsection (3), "undeliverable" does not include unclaimed or refused.

(4) The notice given pursuant to subsection (3) of this section shall include the following information regarding the unpaid check, draft, or order:

(a) The date the check, draft, or order was issued;

(b) The name of the bank, depository, person, firm, or corporation on which it was drawn;

(c) The name of the payee;

(d) The face amount;

(e) A statement of the total amount due, which shall be itemized and shall not exceed the amount permitted under paragraph (a) or (b) of subsection (1) of this section;

(f) A statement that the maker has fifteen days from the date notice was given to make payment in full of the total amount due; and

(g) A statement that, if the total amount due is not paid within fifteen days after the date notice was given, the maker may be liable in a civil action for three times the face amount of the check but not less than one hundred dollars and that, in such civil action, the court may award court costs and reasonable attorney fees to the prevailing party.

(5) No holder or assignee for collection shall assert that any maker has liability for any amount set forth under subsection (2) of this section unless such liability has been determined by entry of a final judgment by a court of competent jurisdiction.

(6) In any civil action brought under this section, the prevailing party may recover court costs and reasonable attorney fees. In addition, in an action brought under paragraph (b) of subsection (1) of this section, if the holder or assignee for collection prevails, actual costs of collection may be recovered by the holder or assignee for collection if such actual costs of collection are greater than the costs of collection provided under such paragraph (b).

(7) Nothing in this section shall be deemed to apply to any check, draft, or order on which payment has been stopped by the maker by reason of a dispute relating to the money, merchandise, property, or other thing of value obtained by the maker.

(8) Nothing in this section applies to any criminal case or affects eligibility or terms of probation.

(9) Any limitation on a cause of action under this section, except a cause of action under subsection (2) of this section, shall be governed by the provisions of section 13-80-103.5. Any limitation on a cause of action under subsection (2) of this section shall be governed by the provisions ofsection 13-80-102.

HISTORY: Source: L. 67: pp. 827, 828, § § 1, 3. C.R.S. 1963: § 41-2-9.L. 84: (1) amended, p. 463, § 1, effective July 1.L. 89: Entire section R&RE, p. 754, § 1, effective July 1.L. 2002: (3) amended, p. 310, § 1, effective August 7.L. 2009: (2)(a) amended, (HB 09-1108), ch. 161, p. 696, § 2, effective August 5.


ANNOTATION

The commonly understood meaning of the term "any person", which is not defined in this section, could include either an individual or a corporation, as well as a person signing on behalf of a corporation. Mountain States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996).

If the general assembly had intended to limit the liability of a person signing a check in a representative capacity, it could have so stated. This section provides no such exception, however. Thus, a corporate officer could be found individually liable under this section. Mountain States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996) (decided under § 13-21-109 prior to enactment of § 4-3-402 (c)).

The general assembly's enactment of § 4-3-402 (c) directs that an authorized corporate officer who signs his or her name to a check issued on an account of a corporation is not liable for that check so long as the corporation is identified as the owner of the account on the check, and it would be incongruous for a corporate officer to be relieved of personal liability on a check pursuant to § 4-3-402 (c), but still be liable for three times the face amount of the check pursuant to subsection (2) of this section. Kunz v. Cycles West, Inc., 969 P.2d 781 (Colo. App. 1998).

The general assembly intended the phrases "any person", "the person", and "the maker" in this section to refer to the corporation when the owner of the account is a corporation and the signature on the check is that of an authorized corporate officer. Kunz v. Cycles West, Inc., 969 P.2d 781 (Colo. App. 1998).

The general assembly intended the word "made" to mean when a check is written, not when the check was delivered, mailed, or drawn. Suncor Energy (USA) v. Aspen Petroleum, 178 P.3d 1263 (Colo. App. 2007).

The maker's liability for damages under subsection (2) is not affected by subsection (5) nor by the doctrine of election of remedies. Where the maker satisfies the underlying debt after the 15-day deadline, liability for the statutory penalty is partially offset but is not negated. Singer v. Strauss, 851 P.2d 256 (Colo. App. 1993).

Trial court erred in finding that a letter returned as "unknown" was not "returned as undeliverable" under subsection (3). Stadler v. DeVito, 931 P.2d 573 (Colo. App. 1996).

Even assuming that markings of "attempted, unknown" and "moved" on notice of presentment means that notice was undeliverable, the only consequence of assumption is that assignee of debt cannot avail itself of conclusive presumption under subsection (3) that notice was given on the date of mailing. Mountain States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996).

Strict compliance with notice requirements in this section is necessary. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).

Failure to comply with notice provisions precludes the collection of treble damages. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).

Attorney fees are not "collection costs" under this section. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).

Applied in Berckefeldt v. Hammer, 44 Colo. App. 320, 616 P.2d 183 (1980).

[CO Hugh]

Send him a demand letter co law says they have 15 days from receipt of the letter to comply otherwise you can sue for 3 times the check amount.

Small claims court will ask if you sent a demand letter.

http://www.colorado.gov/cs/Satellite...&ssbinary=true

This: the link also provides a form demand letter. You must include everything required by statute in the letter. Then sue him. Good luck collecting.

If the work was construction then also lien him. It is probably not worth foreclosing for $3,000 but it can create a lot of pain for this guy.

PM me if you have questions, I am an attorney.

[hghclsswhitetrsh]

Sorry I have no advice and can't help. I just want to say people are turds. How in the hell are you going have someone do work for you when you KNOW you don't have the funds. Stupid fucking people.

[Great-Kazoo]

Sorry I have no advice and can't help. I just want to say people are turds. How in the hell are you going have someone do work for you when you KNOW you don't have the funds. Stupid fucking people.

You'd be surprised how many folks think or feel, they can get away with it. The one's i've ran in to were the monied type. They became very upset when funds were extracted, legally, through the system.

[hghclsswhitetrsh]

That's why some people require 1/2 down with a check and when it clears They order the equipment. The day of the work performed they take cash only.

[Wulf202]

That's why some people require 1/2 down with a check and when it clears They order the equipment. The day of the work performed they take cash only.

Then you run the risk of the contractor running off. Like I've had.


Send him the proper due notice for a bad check. Wait the appropriate amount of time
file small claims. Wait for court date
use the judgement to put a lein on something with a title and get paid when that gets sold or the amount of time goes by you can file to take it.
or garnish wages and seize the bank accounts.

Or work it out in trade and save a bunch of time