South Carolina General Assembly
113th Session, 1999-2000

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Bill 773


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                      773
Type of Legislation:              General Bill GB
Introducing Body:                 Senate
Introduced Date:                  19990429
Primary Sponsor:                  Peeler
All Sponsors:                     Peeler
Drafted Document Number:          l:\council\bills\ggs\22278djc99.doc
Residing Body:                    Senate
Current Committee:                Banking and Insurance Committee 02 SBI
Subject:                          Checks, drafts, etc.; worthless; intent 
                                  to cheat and defraud; Banks and Savings and 
                                  Loan Associations


                        History

Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
Senate  19990429  Introduced, read first time,           02 SBI
                  referred to Committee


                             Versions of This Bill

View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND CHAPTER 11, TITLE 34, CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED, BY ADDING SECTION 34-11-55, SO AS TO PROVIDE THAT A PERSON WHO, WITH INTENT TO CHEAT AND DEFRAUD ANOTHER, SHALL OBTAIN ANYTHING OF VALUE BY MEANS OF A CHECK, DRAFT, OR ORDER UPON A BANK OR OTHER PERSON NOT INDEBTED TO THE DRAWER, WHERE HE HAS NOT PROVIDED FOR PAYMENT OR ACCEPTANCE OF THE CHECK, DRAFT, OR ORDER, AND THE CHECK, DRAFT OR ORDER IS NOT PAID IS GUILTY OF A MISDEMEANOR, AND TO PROVIDE THAT THE GIVING OF A WORTHLESS CHECK, DRAFT, OR ORDER IS PRIMA FACIE EVIDENCE OF INTENT TO CHEAT AND DEFRAUD; TO AMEND SECTION 34-11-60, AS AMENDED, RELATING TO DRAWING AND UTTERING A FRAUDULENT CHECK, DRAFT, OR OTHER WRITTEN ORDER, SO AS TO PROVIDE THAT IT IS UNLAWFUL FOR A PERSON TO DRAW, MAKE, UTTER, OR ISSUE AND DELIVER A CHECK OR DRAFT FOR THE PAYMENT OF MONEY TO ANOTHER KNOWING THAT THE MAKER OR DRAWER DOES NOT HAVE SUFFICIENT FUNDS OR CREDIT WITH WHICH TO PAY THE CHECK OR DRAFT UPON PRESENTATION; TO AMEND CHAPTER 11, TITLE 34, RELATING TO BANK DEPOSITS, BY ADDING SECTION 34-11-65, SO AS TO PROVIDE THAT A PERSON WHO ACCEPTS A CHECK IN PAYMENT FOR GOODS AND SERVICES MAY CHARGE AND COLLECT A PROCESSING FEE FOR A CHECK ON WHICH PAYMENT HAS BEEN REFUSED BY THE PAYOR BANK; TO AMEND SECTION 34-11-70, RELATING TO PRIMA FACIE EVIDENCE OF FRAUDULENT INTENT IN DRAWING A CHECK, DRAFT, OR OTHER WRITTEN ORDER, SO AS TO PROVIDE FOR PRIMA FACIE EVIDENCE OF FRAUDULENT INTENT IN DRAWING A CHECK, DRAFT, OR OTHER WRITTEN ORDER; AND TO AMEND SECTION 34-11-75, RELATING TO CIVIL REMEDIES FOR DRAWING AND UTTERING FRAUDULENT CHECKS, DRAFTS, OR OTHER WRITTEN ORDERS, SO AS TO PROVIDE FOR CIVIL REMEDIES FOR DRAWING AND UTTERING FRAUDULENT CHECKS, DRAFTS, OR OTHER WRITTEN ORDERS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 11, Title 34 of the 1976 Code is amended by adding:

"Section 34-11-55. A person who, with intent to cheat and defraud another, shall obtain money, credit, goods, wares, or any other thing of value by means of a check, draft, or order of any kind upon a bank, person, firm, or corporation, not indebted to the drawer, or where he has not provided for the payment or acceptance of the check, draft or order, and the check, draft or order is not paid upon presentation, is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 34-11-90. The giving of the worthless check, draft, or order is prima facie evidence of intent to cheat and defraud."

SECTION 2. Section 34-11-60 of the 1976 Code, as last amended by Act 235 of 1996, is further amended to read:

"Section 34-11-60. (a) It is unlawful for a person, with intent to defraud, in his own name or in any other capacity, to draw, make, utter, issue, or deliver to another a check, draft, or other written order on a bank or depository for the payment of money or its equivalent, whether given to pay rent, make a payment on a lease, obtain money, services, credit, or property of any kind or nature whatever, or anything of value which includes an obligation or debt of state taxes which is past due or presently due, when at the time of drawing, making, uttering, issuing, or delivering the check or draft or other written order the maker or drawer does not have an account in the bank or depository or does not have sufficient funds on deposit with the bank or depository to pay the same on presentation, or if the check, draft, or other written order has an incorrect or insufficient signature on it to be paid upon presentation.

(b) In any prosecution or action under the provisions of this section, a check, draft, or other written order for which the information required in item (1) of this subsection is available at the time of issuance shall constitute prima facie evidence of the identity of the party issuing the check, draft, or other written order and that such person was a party authorized to draw upon the named account. The failure of the person receiving the check to obtain the information specified in items (1) or (2) of this subsection shall not warrant dismissal of a prosecution or other action brought pursuant to this section, but the party bringing the action shall in such circumstances have the burden of proving that the defendant signed or endorsed the check and presented it in payment of some debt or other obligation.

(1) To establish this prima facie evidence, the full name, residence address, and home telephone number of the person presenting the check, draft, or other written order shall be obtained by the party receiving the instrument. This information may be provided by having the information recorded on the check or instrument itself, or the number of a check-cashing identification card issued by the receiving party may be recorded on the check. The check-cashing identification card shall be issued only after the full name, residence address, and home telephone number of the person presenting the check, draft, or other written order has been placed on file by the receiving party.

(2) In addition to the information required in item (1) of this subsection, the party receiving a check shall witness the signature or endorsement of the party presenting the check and as evidence of such, the receiving party shall initial the check. Validation by a bank teller machine shall constitute compliance with this item.

(c) It shall be the duty of the drawee of any check, draft, or other written order, before refusing to pay the same to the holder thereof upon presentation, to cause to be written, printed, or stamped in plain language thereon or attached thereto, the reason for drawee's dishonor or refusal to pay same. In all prosecutions under this section, the introduction in evidence of any unpaid and dishonored check, draft or other written order, having the drawee's refusal to pay stamped or written thereon, or attached thereto, with the reason therefor as aforesaid, shall be prima facie evidence of the making or uttering of such check, draft, or other written order, and the due presentation to the drawee for payment and the dishonor thereof, and that the same was properly dishonored for the reasons written, stamped or attached by the drawee on such dishonored check, draft, or other written order; and, as against the maker or drawer thereof, the withdrawing from deposit with the drawee named in the check, draft or other written order, the funds on deposit with such drawee necessary to insure payment of such check, draft or other written order upon presentation within ten days after negotiation; or the drawing, making, uttering or delivering of a check, draft or written order, payment of which is refused by the drawee, shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee; provided, however, if it is determined at the trial in a prosecution hereunder, that the payee of any such check, draft or written order at the time of accepting such check, draft or written order, had knowledge of or reason to believe that the drawer of such check, draft or other written order did not have sufficient funds on deposit in or credit with such drawee, then the payee instituting such criminal prosecution shall be assessed all costs of court incurred in connection with such prosecution.

(d) The word 'credit' as used in this section means securing further advances of money, goods, or services by means of a check, draft, or other written order, given in whole or in part payment of a then existing account. Payment for meals, lodging, or other goods or services at any hotel, motel, or other hostelry by means of a check, draft, or other written order at any time prior to or upon departure or checkout from the hostelry must be construed as obtaining those goods or services by means of such check, draft, or other written order for the purposes of this section. This section does not apply to any check given only in full or partial payment of a preexisting debt unless given to satisfy a preexisting debt which resulted from a revolving credit account which is not a consumer credit transaction as defined in Section 37-1-301(11), to the giving of any check, draft, or other written order where the payee knows, has been expressly notified, or has reason to believe that the drawer did not have an account or have on deposit with the drawee sufficient funds to ensure payment of the check, nor to any check which has not been deposited to an account of the payee within a period of ten days from the date the check was presented to the payee. It is also unlawful for any person to induce, solicit, or to aid and abet any other person to draw, make, utter, issue, or deliver to any person including himself any check, draft, or other written order on any bank or depository for the payment of money or its equivalent, being informed, knowing, or having reasonable cause for believing at the time of the inducing, soliciting, or the aiding and abetting that the maker or the drawer of the check, draft, or other written order has not sufficient funds on deposit in, or an account with, the bank or depository with which to pay the same upon presentation.

(e) No warrant for a violation of this section may be obtained more than one hundred eighty days after the date the check was uttered.

It is unlawful for a person, firm, or corporation to draw, make, utter, or issue and deliver to another, a check or draft on a bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check or draft that the maker or drawer of has not sufficient funds on deposit in, or credit with, such bank or depository with which to pay the check or draft upon presentation.

It is unlawful for a person, firm, or corporation to solicit or to aid and abet a person, firm, or corporation to draw, make, utter, or issue and deliver to a person, firm or corporation, a check or draft on a bank or depository for the payment of money or its equivalent, being informed, knowing, or having reasonable grounds for believing at the time of the soliciting or the aiding and abetting that the maker or the drawer of the check or draft has not sufficient funds on deposit in, or credit with, such bank or depository with which to pay the check or draft upon presentation.

The word 'credit' as used in this section means an arrangement or understanding with the bank or depository for the payment of a check or draft."

SECTION 3. Chapter 11, Title 34 of the 1976 Code is amended by adding:

"Section 34-11-65. A person who accepts a check in payment for goods or services may charge and collect a processing fee, not to exceed twenty-five dollars, for a check on which payment has been refused by the payor bank because of insufficient funds or because the drawer did not have an account at that bank, if at the time the consumer presented the check to the person, a sign:

(1) was conspicuously posted on or in the immediate vicinity of the cash register or other place where the check is received;

(2) was in plain view of a person paying for goods or services by check;

(3) was no smaller than 8 by 11 inches; and

(4) stated the amount of the fee that would be charged for returned checks.

When the drawer sends a check by mail for payment of a debt and the check is dishonored and returned, the processing fee may be collected if the drawer was given prior written notice that a fee would be charged for returned checks. A document that clearly and conspicuously states the amount of the fee that will be charged for returned checks and is delivered to the drawer or his agent, or is mailed first-class mail to the drawer at his last known address as part of a document requesting payment of a debt satisfies this notice requirement for that payment only.

If a collection agency collects or seeks to collect on behalf of its principal a processing fee as specified in this section in addition to the sum payable of a check, the amount of such processing fee must be separately stated on the collection notice. The collection agency must not collect or seek to collect from the drawer a sum other than the actual amount of the returned check and the specified processing fee."

SECTION 4. Section 34-11-70 of the 1976 Code, as last amended by Act 138 of 1995, is further amended to read:

"Section 34-11-70. (a) When a check, a draft, or other written order is not paid by the drawee because the maker or drawer did not have an account with or sufficient funds on deposit with the bank or the person upon which it was drawn when presented or the draft, check, or other written order has an incorrect or insufficient signature on it, and the maker or drawer does not pay the amount due on it, together with a service charge of twenty-five dollars, within ten days after written notice has been sent by certified mail to the address printed on the check or given at the time it is tendered or provided on a check-cashing identification card stating that payment was refused upon the instrument, then it constitutes prima facie evidence of fraudulent intent against the maker. Service charges collected pursuant to this section must be paid to the payee of the instrument.

(1) For purposes of subsection (a), notice must be given by mailing the notice with postage prepaid addressed to the person at the address as printed or written on the instrument. The giving of notice by mail is complete upon the expiration of ten days after the deposit of the notice in the mail. A certificate by the payee that the notice has been sent as required by this section is presumptive proof that the requirements as to notice have been met, regardless of the fact that the notice actually might not have been received by the addressee. The form of notice must be substantially as follows:

You are notified that a check or instrument, numbered ___, issued by you on ___ (date), drawn upon ___ (name of bank), and payable to ___, has been dishonored. Pursuant to South Carolina law, you have ten days from the date this notice was mailed to tender payment of the full amount of the check or instrument plus a service charge of twenty-five dollars, the total amount due being ___ dollars and ___ cents. Unless this amount is paid in full within the specified time above, the holder of the check or instrument may turn over the dishonored check or instrument and all other available information relating to this incident to the solicitor or other appropriate officer for criminal prosecution.

(2) When a person instituting prosecution gives notice in substantially similar form provided in item (1) to the person upon which the instrument was drawn and waits ten days from the date notice is mailed before instituting the criminal proceedings, there arises a presumption that the prosecution was instituted for reasonable and probable cause, and the person instituting prosecution is immune from civil liability for the giving of the notice.

(3) A service charge of not more than twenty-five dollars is payable by the drawer of a draft, a check, or other written order to the payee of the instrument when the draft, check, or other written order is presented for payment in whole or in part of a then existing debt including, but not limited to, consumer credit transactions, and is dishonored. This service charge is solely to compensate the payee of the instrument for incurred expenses in processing the dishonored instrument and is not related to a presumption of fraud so that it is not necessary to issue the notice to the person at the address as printed on the instrument set forth in items (1) and (2).

(b) Any court, including magistrate's, may dismiss a case under the provisions of this chapter for want of prosecution. When any prosecutions are initiated under this chapter, the party applying for the warrant is held liable for all reasonable administrative costs accruing not to exceed twenty dollars if the case is dismissed for want of prosecution. Unless waived by the court, the party applying for the warrant shall notify, orally or otherwise, the court not less than twenty-four hours before the date and time set for trial that full restitution has been made in connection with the warrant, and the notification relieves that party of the responsibility of prosecution.

(c) Any court, including magistrate's, may dismiss any prosecution initiated pursuant to the provisions of this chapter on satisfactory proof of restitution and payment by the defendant of all administrative costs accruing not to exceed twenty dollars submitted before the date set for trial after the issuance of a warrant.

(d) For purposes of this chapter, subsequent persons receiving a check, draft, or other written order by endorsement from the original payee or a successor endorsee have the same rights that the original payee has against the maker of the instrument, if the maker of the instrument has the same defenses against subsequent persons as he may have had against the original payee. However, the remedies available under this chapter may be exercised only by one party in interest.

(A) For purposes of this section, unless the context otherwise requires:

(1) 'Check passer' means a natural person who draws, makes, utters, or issues and delivers or causes to be delivered to another a check or draft on a bank or depository for the payment of money or its equivalent.

(2) 'Acceptor' means a person, firm, corporation, or any authorized employee of accepting a check or draft from a check passer.

(3) 'Check taker' means a natural person who is an acceptor, or an employee or agent of an acceptor, of a check or draft in a face-to-face transaction.

(B) In prosecutions under Section 34-11-60 the prima facie evidence provisions of subsections (D) and (E) apply if all the conditions of items (1) through (7) below are met. The prima facie evidence provisions of subsection (E) apply if only conditions of items (5) through (7) below are met. The conditions are:

(1) The check or draft is delivered to a check taker.

(2) The name and mailing address of the check passer are written or printed on the check or draft, and the check taker or acceptor is not required to write or print the race or gender of the check passer on the check or draft.

(3) The check taker identifies the check passer at the time of accepting the check by means of a South Carolina driver's license, a special identification card issued pursuant to Section 56-1-3350, or other reliable serially numbered identification card containing a photograph and mailing address of the person in question.

(4) The license or identification card number of the check passer appears on the check or draft.

(5) After dishonor of the check or draft by the bank or depository, the acceptor sends the check passer a letter by certified mail, to the address recorded on the check, identifying the check or draft, setting forth the circumstances of dishonor, and requesting rectification of a bank error or other error in connection with the transaction within 10 days.

An acceptor may advise the check passer in a letter that legal action may be taken against him if payment is not made within the prescribed time period. Such letter, however, must be in a form which does not violate applicable provisions of law relating to fair debt collection and unfair trade practices.

(6) The acceptor files the affidavit described in item (7) with a magistrate before issuance of the first process or pleading in the prosecution under Section 34-11-60. The affidavit must be kept in the case file or attached to the criminal pleading in the case.

(7) The affidavit of the acceptor, sworn to before a person authorized to administer oaths, must:

(a) state the facts surrounding acceptance of the check or draft. If the conditions set forth in items (1) through (5) have been met, the specific facts demonstrating observance of those conditions must be stated;

(b) indicate that at least fifteen days have elapsed since the mailing of the letter required under item (5) and that the check passer has failed to rectify any error that may have occurred with respect to the dishonored check or draft;

(c) have attached a copy of the letter sent to the check passer pursuant to item (5);

(d) have attached the receipt, or a copy of it, from the United States Postal Service certifying the mailing of the letter described in item (5); and

(e) have attached the check or draft, or a copy thereof, including any stamp, marking or attachment indicating the reason for dishonor.

(C) In prosecutions under Section 34-11-60, where the check or draft is delivered to the acceptor by mail, or delivered other than in person, the prima facie evidence rule in subsections (D) and (E) must apply if all the conditions below are met. The prima facie evidence rule in subsection (E) must apply if conditions (5) through (7) below are met. The conditions are:

(1) The check or draft is delivered to the acceptor by United States mail, or by some person or instrumentality other than a check passer.

(2) The name and mailing address of the check passer are recorded on the check or draft.

(3) The acceptor has previously identified the check passer, at the time of opening the account, establishing the course of dealing, or initiating the lease or contract by means of a South Carolina driver's license, a special identification card issued pursuant to Section 56-1-3350, or other reliable serially numbered identification card containing a photograph and mailing address of the person in question, and obtained the signature of the person or persons who will be making payments on the account, course of dealing, lease, or contract, and such signature is retained in the account file.

(4) The acceptor compares the name, address, and signature on the check with the name, address, and signature on file in the account, course of dealing, lease, or contract and notes that the information contained on the check corresponds with the information contained in the file, and the signature on the check appears genuine when compared to the signature in the file.

(5) After dishonor of the check or draft by the bank or depository, the acceptor sends the check passer a letter by certified mail to the address recorded on the check or draft identifying the check or draft, setting forth the circumstances of dishonor, and requesting rectification of any bank error or other error in connection with the transaction within ten days.

An acceptor may advise the check passer in a letter that legal action may be taken against him if payment is not made within the prescribed time period. Such letter, however, must be in a form which does not violate applicable provisions of law relating to fair debt collection and unfair trade practices.

(6) The acceptor files the affidavits described in item (7) of this subsection with a magistrate, before issuance of the first process or pleading in the prosecution under Section 34-11-60. The affidavit must be kept in the case file or attached to the criminal pleading in the case.

(7) The affidavit of the acceptor, sworn to before a person authorized to administer oaths, must:

(a) state the facts surrounding acceptance of the check or draft. If the conditions set forth in items (1) through (5) have been met, the specific facts demonstrating observance of those conditions must be stated;

(b) indicate that at least fifteen days have elapsed since the mailing of the letter required under item (5) and that the check passer has failed to rectify any error that may have occurred with respect to the dishonored check or draft;

(c) have attached a copy of the letter sent to the check passer pursuant to item (5);

(d) have attached the receipt, or a copy of it, from the United States Postal Service certifying the mailing of the letter described in item (5); and

(e) have attached the check or draft, or a copy thereof, including any stamp, marking, or attachment indicating the reason for dishonor.

(D) If the conditions of subsection (b) or (c) have been met, proof of meeting them is prima facie evidence that the person charged was in fact the identified check passer.

(E) If the bank or depository dishonoring a check or draft has returned it in the regular course of business stamped or marked, or with an attachment indicating the reason for dishonor, 'insufficient funds,' 'no account,' 'account closed' or words of like meaning, the check or draft and any attachment may be introduced in evidence and constitute prima facie evidence of the facts of dishonor if the conditions of items (5) through (7) of subsection (b) or items (5) through (7) of subsection (c) have been met. The fact that the check or draft was returned dishonored may be received as evidence that the check passer had no credit with the bank or depository for payment of the check or draft.

(F) An affidavit by an employee of a bank or depository who has personal knowledge of the facts stated in the affidavit sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in a hearing or trial pursuant to a prosecution under Section 34-11-60 with respect to the facts of dishonor of the check or draft, including the existence of an account, the date the check or draft was processed, whether there were sufficient funds in an account to pay the check or draft, and other related matters. If the defendant requests that the bank or depository employee personally testify in the hearing or trial, the defendant may subpoena the employee. The defendant shall be provided a copy of the affidavit prior to trial and shall have the opportunity to subpoena the affiant for trial.

SECTION 5. Section 34-11-75 of the 1976 Code, as added by Act 332 of 1990, is amended to read:

"Section 34-11-75. As used in this section, "check" means a check, draft, or other written order drawn on a bank or depository.

(1) In addition to criminal penalties, a person who knowingly or with fraudulent intent, as defined in and as may be established by prima facie evidence under the provisions of Section 34-11-70, draws, makes, utters, or issues and delivers to another a check drawn on a bank or depository that refuses to honor it because the maker or drawer does not have sufficient funds on deposit in or credit with the bank or depository with which to pay the check upon presentation and who fails to pay the same amount in cash to the payee, within thirty days following written demand, is liable to the payee for the amount owing on the check and for damages of the lesser of five hundred dollars or three times the amount owing on the check. In an action under this section, the court or jury may waive all or part of the treble damages upon a finding that the defendant's failure to satisfy the dishonored check was due to the defendant's recent discharge from his employment, personal or family illness, or personal or family catastrophic loss.

The written demand must:

(a) describe the check and the circumstances of its dishonor;

(b) contain a demand for payment and a notice of intent to file suit for treble damages under this section if payment is not received within thirty days; and

(c) be mailed by certified mail to the defendant at his last known address.

(2) In an action under item (1), the presiding judge may award the prevailing party, as part of the court costs payable, a reasonable attorney's fee to the attorney representing the prevailing party in the action.

(3) It is an affirmative defense, in addition to other defenses, to an action under this section if it is found that:

(a) full satisfaction of the amount of the check was made before the beginning of the action;

(b) the bank or depository erred in dishonoring the check; or

(c) the acceptor of the check knew at the time of acceptance that there were insufficient funds on deposit in the bank or

depository with which to cause the check to be honored.

(A) Notwithstanding any criminal sanctions that may apply, a person, firm, or corporation who knowingly draws, makes, utters, or issues and delivers to a person a check or draft drawn on a bank or depository that refuses to honor the check or draft because the maker or drawer does not have sufficient funds on deposit in, or credit with, the bank or depository with which to pay the check or draft upon presentation, and who fails to pay the same amount, any service charges imposed on the payee by a bank or depository for processing the dishonored check, and any processing fees imposed by the payee pursuant to Section 34-11-65 in cash to the payee within thirty days following written demand for, shall be liable to the payee for the amount owing on the check, the service charges, and processing fees and for additional damages of three times the amount owing on the check, not to exceed five hundred dollars and not less than one hundred dollars. If the amount claimed in the first demand letter is not paid, the claim for the amount of the check, the service charges, processing fees, and the treble damages provided for in this subsection may be made by a subsequent letter of demand prior to filing an action. In an action under this section the court or jury may, however, waive all or part of the additional damages upon a finding that the defendant's failure to satisfy the dishonored check or draft was due to economic hardship.

The initial written demand for the amount of the check, the service charges, and processing fees must be mailed by certified mail to the defendant at the defendant's last known address and must be in the form set out in item (1) of this subsection. The subsequent demand letter demanding the amount of the check, the service charges, the processing fees, and treble damages must be mailed by certified mail to the defendant at the defendant's last known address and must be in the form set out in item (2) of this subsection. If the payee chooses to send the demand letter set out in subsection (2) of this section, then the payee may not file an action to collect the amount of the check, the service charges, the processing fees, or treble damages until thirty days following the written demand set out in item (2) of this subsection.

(1) The first notification letter must be substantially in the following form:

This letter is written pursuant to Section 34-11-75, Code of Laws of South Carolina, 1976, as amended, to inform you that on _____________________________(date), you made and delivered to the business listed above a check payable to this business containing your name and address in the sum of $____________, drawn upon _________________________ (bank or institution), account # ____________. [If the check was received in a face-to-face transaction insert this sentence: This check contained a driver's license identification number from a card with your photograph and mailing address, which was used to identify you at the time the check was accepted.] [If the check was delivered by mail insert this sentence: We have compared your name, address, and signature on the check with the name, address, and signature on file in the account previously established by you or on your behalf, and the signature on the check appears to be genuine.] Also, we have received no information that this was a stolen check, if that is the circumstance.

The check has been dishonored by the bank for the following reasons:

_______________________________________________________

As acceptor of the check, we give you notice to rectify any bank error or other error in connection with the transaction, and to pay the face value of the check, plus the service charges and fees as authorized under Section 34-11-65 and Section 34-11-75, Code of Laws of South Carolina, 1976, as amended, as follows:

Face value of the check # $_________________________

Processing fee authorized

under Section 34-11-65 $_________________________

Bank service fees authorized

under Section 34-11-75 $_________________________

Total amount due: $_________________________

If the total amount due listed above is not paid within thirty days of the mailing of this letter, we may file a civil action to seek civil damages of three times the amount of the check, with a minimum damage of one hundred dollars and a maximum damage of five hundred dollars, for allegedly giving a worthless check in violation of law (Section 34-11-75), in addition to the amount of the check and the fees specified above.

Appropriate relief will then be sought before a court of proper jurisdiction for full payment of the check plus all costs, treble damages, and witness fees.

If you do not believe you are liable for these amounts, you will have a right to present your defense in court. To pay the check or obtain information, contact the undersigned at the above business location. Cash or a bank official check will be the only acceptable means of redeeming the dishonored check.

If you do not believe that you owe the amount claimed in this letter or if you believe you have received this letter in error, please notify the undersigned at the above business location as soon as possible.

(2) If the total amount due in item (1) has not been paid within thirty days after the mailing of the notification letter, a subsequent demand letter may be sent and must be substantially in the following form:

On _____________________(date), we informed you that we received a check payable to this business containing your name and address in the sum of $ ____________, drawn upon _________________________ (bank or institution), account # _______________________. This check contained identification information which was used to identify you as the maker of the check. Also, we have received no information that this was a stolen check, if that is the circumstance.

The check has been dishonored by the bank for the following reasons:

_______________________________________________________

We notified you that you were responsible for the face value of the check ($____________), plus the fees authorized under Section 34-11-65 ($____________) and Section 34-11-75, Code of Laws of South Carolina, 1976, as amended, ($____________) for a total amount due of ($_________________________). Thirty days have passed since the mailing of that notification letter, and you have not made payment to us for that total amount due.

Under Section 34-11-75, we claim you are now liable for the face value of the check, service charges, processing fees, and treble damages. The damages we claim are three times the amount of the check or one hundred dollars, whichever is greater, but cannot exceed five hundred dollars. The total amount we claim now due is:

Face value of the check $ __________________________

Processing fee authorized

under Section 34-11-65 $ __________________________

Bank service fees authorized

under Section 34-11-75 $ __________________________

Three times the face value of the

check, with a minimum of $100.00

and a maximum of $500.00 $ __________________________

Total amount due: $ __________________________

Payment of the total amount claimed above within thirty days of the mailing of this letter will satisfy this civil remedy for the returned check.

If payment has not been received within this thirty-day period, we will seek appropriate relief before a court of proper jurisdiction for full payment of the check plus all costs, treble damages, and witness fees.

If you do not believe you are liable for these amounts, you will have a right to present your defense in court. To pay the check or obtain information, contact the undersigned at the above business location. Cash or a bank official check will be the only acceptable means of redeeming the dishonored check.

If you do not believe that you owe the amount claimed in this letter or if you believe you have received this letter in error, please notify the undersigned at the above business location as soon as possible.

(B) In an action under subsection (A) of this section, the presiding judge or magistrate may award the prevailing party, as part of the court costs payable, a reasonable attorney's fee to the duly licensed attorney representing the prevailing party in such suit.

(C) It is an affirmative defense, in addition to other defenses, to an action under this section if it is found that:

(1) full satisfaction of the amount of the check or draft was made prior to the commencement of the action, or

(2) that the bank or depository erred in dishonoring the check or draft, or

(3) that the acceptor of the check knew at the time of acceptance that there were insufficient funds on deposit in the bank or depository with which to cause the check to be honored.

(D) The remedy provided for herein must apply only if the check was drawn, made, uttered, or issued with knowledge there were insufficient funds in the account or that no credit existed with the bank or depository with which to pay the check or draft upon presentation."

SECTION 6. This act takes effect upon approval by the Governor and applies only to offenses occurring on or after the effective date. Cases and appeals arising or pending under Sections 34-11-60, 34-11-70, and 34-11-75 prior to the effective date of this act are saved.

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This web page was last updated on Wednesday, December 9, 2009 at 9:08 A.M.