Text: SF00451 Text: SF00453 Text: SF00400 - SF00499 Text: SF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 537.2501, subsection 1, paragraph g, 1 2 Code 1995, is amended to read as follows: 1 3 g. A surcharge of not more thantenfive percent of the 1 4 amount of the face value of the payment instrument or twenty 1 5 dollars, whichever is greater, for each dishonored payment 1 6 instrument provided that the fee is clearly and conspicuously 1 7 disclosed in the cardholder agreement. However, the amount of 1 8 the surcharge shall not exceed twenty dollars unless the 1 9 check, draft, or order was presented twice or the maker does 1 10 not have an account with the drawee. The surcharge shall not 1 11 be assessed against the maker if the reason for the dishonor 1 12 of the instrument is that the maker has stopped payment 1 13 pursuant to section 554.4403. 1 14 Sec. 2. NEW SECTION. 554.3512 HOLDER'S RECOURSE FOR 1 15 DISHONOR. 1 16 1. The holder of a dishonored check, draft, or order may 1 17 assess against the maker of that check, draft, or order a 1 18 surcharge of not more than the greater of twenty dollars or 1 19 five percent of the face value of the check. However, the 1 20 amount of the surcharge shall not exceed twenty dollars unless 1 21 the check, draft, or order was presented twice or the maker 1 22 does not have an account with the drawee. 1 23 2. The surcharge authorized by this section shall not be 1 24 assessed unless the holder clearly and conspicuously posts a 1 25 notice at the usual place of payment, or in the billing 1 26 statement of the holder, stating that a surcharge will be 1 27 assessed and the amount of the surcharge. However, the 1 28 surcharge shall not be assessed against the maker if the 1 29 reason for the dishonor of the check, draft, or order is that 1 30 the maker has stopped payment pursuant to section 554.4403. 1 31 Sec. 3. NEW SECTION. 554.3513 CIVIL REMEDY FOR DISHONOR. 1 32 1. In a civil action against a person who makes a check, 1 33 draft, or order, which has been dishonored for lack of funds 1 34 or credit, after having been presented twice, or because the 1 35 maker has no account with the drawee, the plaintiff shall 2 1 recover from the defendant total damages equaling three times 2 2 the face value of the dishonored check, draft, or order, which 2 3 sum shall include the face value of the check, draft, or 2 4 order. However, total recovery under this section shall not 2 5 exceed by more than five hundred dollars the amount of the 2 6 check, draft, or order and may be awarded only if all of the 2 7 following apply: 2 8 a. The plaintiff made written demand of the defendant for 2 9 payment of the amount of the check, draft, or order not less 2 10 than thirty days before commencing the action. 2 11 b. The written demand notified the defendant that treble 2 12 damages would be sought if the face value of the dishonored 2 13 check was not paid within thirty days of receipt, and was 2 14 received by the defendant through personal service or 2 15 restricted certified mail. 2 16 c. The defendant has failed to tender to the plaintiff, 2 17 prior to commencement of the action, an amount of money not 2 18 less than the face value of the dishonored check, draft, or 2 19 order. 2 20 d. The plaintiff clearly and conspicuously posted a notice 2 21 at the usual place of payment, or in a billing statement of 2 22 the plaintiff, stating that civil damages pursuant to this 2 23 section would be sought upon dishonorment. 2 24 2. In an action for damages pursuant to subsection 1, if 2 25 the court or jury determines that the failure of the defendant 2 26 to satisfy the dishonored check, draft, or order is due to 2 27 economic hardship, the court or jury may waive all or part of 2 28 the allowable civil damages. However, if the court or jury 2 29 waives all or part of the civil damages, the court or jury 2 30 shall render judgment against the defendant in the amount of 2 31 the dishonored check, draft, or order and the actual costs 2 32 incurred by the plaintiff in bringing the action. 2 33 3. This section does not apply if the reason for the 2 34 dishonor of the check, draft, or order is that the maker has 2 35 stopped payment pursuant to section 554.4403 because of a bona 3 1 fide dispute between the maker and the holder relating to the 3 2 consideration for which the check, draft, or order was given. 3 3 4. In actions brought pursuant to this section, no 3 4 additional award pursuant to section 554.3512 or 625.22 shall 3 5 be made. 3 6 5. The plaintiff in a civil action to collect a dishonored 3 7 check, draft, or order brought before the district court 3 8 sitting in small claims shall not request or recover punitive 3 9 or exemplary damages, but may seek the civil damages allowed 3 10 under this section. The plaintiff in a civil action to 3 11 collect a dishonored check, draft, or order in the district 3 12 court not sitting in small claims, may seek punitive or 3 13 exemplary damages if appropriate under chapter 668A, or civil 3 14 damages allowed under this section, but not both. 3 15 6. A violation of this section is an unlawful practice as 3 16 provided in section 714.16, subsection 2, paragraph "a". 3 17 EXPLANATION 3 18 This bill provides for remedies of a holder of a financial 3 19 instrument. The bill amends provisions in the consumer credit 3 20 code and the uniform commercial code to provide for surcharges 3 21 for a dishonored payment instrument. Section 537.2501 3 22 provides that the amount of surcharge must not exceed $20. 3 23 The bill provides that the amount cannot exceed 5 percent of 3 24 the amount of the face value of the payment instrument or $20, 3 25 whichever is greater. The bill also provides that the amount 3 26 of the surcharge shall not exceed $20 unless the check, draft, 3 27 or order was presented twice or the maker does not have an 3 28 account with the drawee. 3 29 The bill provides that in a civil action against a person 3 30 who makes a check, draft, or order which has been dishonored 3 31 for lack of funds or credit after having been presented twice, 3 32 or because the maker has no account with the drawee, the 3 33 plaintiff may recover from the defendant damages triple the 3 34 amount for which the dishonored check, draft, or order is 3 35 drawn. The bill provides that the total amount of damages 4 1 cannot exceed $500 more than the amount of the check, draft, 4 2 or order. The damages are contingent upon a number of 4 3 conditions. The plaintiff must provide a written demand for 4 4 the payment, the defendant must have failed to tender the 4 5 amount of the check, draft, or order, plus other associated 4 6 costs, and the plaintiff must have posted a notice on the 4 7 premises. The bill provides for reduced damages in cases of 4 8 hardship, and provides that the section does not apply in 4 9 cases involving a bona fide dispute between the parties 4 10 arising out of a stop payment order. The bill limits punitive 4 11 or exemplary damages. 4 12 A violation of section 554.3513 is an unlawful practice as 4 13 provided in section 714.16. 4 14 LSB 1797SV 76 4 15 da/jw/5.1
Text: SF00451 Text: SF00453 Text: SF00400 - SF00499 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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