Damages for Writing Bad Checks

1. Law
2. Georgia Code
3. Contracts
4. Damages and Costs Generally
5. Damages for Writing Bad Checks

1. Notwithstanding any criminal sanctions which may apply, any person who makes, utters, draws, or delivers any check, draft, or order upon any bank, depository, person, firm, or corporation for the payment of money, which drawee refuses to honor the instrument for lack of funds or credit in the account from which to pay the instrument or because the maker has no account with the drawee, and who fails to pay the same amount in cash to the payee named in the instrument within ten days after a written demand therefor, as provided in subsection (c) of this Code section, has been delivered to the maker by certified mail, or statutory overnight delivery shall be liable to the payee, in addition to the amount owing upon such check, draft, or order, for damages of double the amount so owing, but in no case more than $500.00, and any court costs incurred by the payee in taking the action. In addition to delivery of notice as provided for herein, notice may be given by first-class mail to the address printed on the check given by the maker at the time of issuance or, in the case of a draft or order, to the last known address. If the question of sufficiency of notice becomes an issue, when notice is by first-class mail, the sender of the purported notice shall give an affidavit, under oath, that notice was made as provided for herein and there shall be a rebuttable presumption that proper notice was given.
2. The payee may charge the maker of the check, draft, or order a service charge not to exceed $30.00 or 5 percent of the face amount of the instrument, whichever is greater, plus the amount of any fees charged to the holder of the instrument by a bank or financial institution as a result of the instrument not being honored, when making written demand for payment.
3. Before any recovery under subsection (a) of this Code section may be claimed, a written demand in substantially the form which follows shall be sent by certified mail, statutory overnight delivery, or first-class mail supported by an affidavit of service to the address printed or written on the check given by the maker at the time of issuance of the check or, in the case of a draft or order, to the last known address, the notice to be deemed conclusive ten days following the date the affidavit is executed, to the maker of the instrument at the address shown on the instrument:

   "You are hereby 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 Georgia law, you have ten days from receipt of this notice to tender payment of the full amount of the check or instrument plus a service charge of $30.00 or 5 percent of the face amount of the check or instrument, whichever is greater, plus the amount of any fees charged to the holder of the instrument by a bank or financial institution as a result of the instrument not being honored, the total amount due being $________. Unless this amount is paid in full within the ten-day period, the holder of the check or instrument may file a civil suit against you for two times the amount of the check or instrument, but in no case more than $500.00, in addition to the payment of the check or instrument plus any court costs incurred by the payee in taking the action."

4. For purposes of this Code section, the holder of the dishonored check, draft, or order shall file the action in the county where the defendant resides.
5. It shall be an affirmative defense, in addition to other defenses, to an action under this Code section if it is found that:
   1. Full satisfaction of the amount of the check or instrument plus the applicable service charge and any fees charged to the holder of the instrument by a bank or financial institution as a result of the instrument not being honored was made prior to the commencement of the action;
   2. The bank or depository erred in dishonoring the check or instrument; or
   3. The acceptor of the check or instrument knew at the time of acceptance that there were insufficient funds on deposit in the bank or depository with which to cause the check or instrument to be honored.
6. In an action under this Code section, the court or jury may, however, waive all or part of the double damages upon finding that the defendant's failure to satisfy the dishonored check or instrument was due to the defendant receiving a dishonored check or instrument written to the defendant by another party.
7. Subsequent to the commencement of the civil action under this Code section, but prior to the hearing, the defendant may tender to the plaintiff as satisfaction of the claim an amount of money equal to the sum of the amount of the dishonored check, service charges on the check, any fees charged to the holder of the instrument by a bank or financial institution as a result of the instrument not being honored, and any court costs incurred by the plaintiff in taking the action.
8. In an action under this Code section, if the court or jury determines that the failure of the defendant to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of the double damages. However, if the court or jury waives all or part of the double damages, the court or jury shall render judgment against the defendant in the amount of the dishonored check plus service charges on the check plus any fees charged to the holder of the instrument by a bank or financial institution as a result of the instrument not being honored and any court costs incurred by the plaintiff in taking the action.

(Code 1981, §13-6-15, enacted by Ga. L. 1987, p. 817, § 1; Ga. L. 1991, p. 1299, §§ 2, 3; Ga. L. 1993, p. 465, § 1; Ga. L. 1997, p. 552, § 1; Ga. L. 1999, p. 775, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2003, p. 479, § 1.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews.

- For annual survey article on business associations, see 50 Mercer L. Rev. 171 (1998).

JUDICIAL DECISIONS

Construction.

- O.C.G.A. § 13-6-15 should be construed in para materia with O.C.G.A. § 11-3-402(c), as amended. Peterson v. Holtrachem, Inc., 239 Ga. App. 838, 521 S.E.2d 648 (1999).

Personal liability of corporate officer.

- President of a corporation was personally liable for writing a bad check, even assuming that the president signed the check in a representative capacity and did not know there were insufficient funds to cover the check. Kolodkin v. Cohen, 230 Ga. App. 384, 496 S.E.2d 515 (1998), but see Peterson v. Holtrachem, 239 Ga. App. 838, 521 S.E.2d 648 (1999).

Enforcement of drawer and signer obligations.

- Trial court did not err in granting a bank summary judgment on the bank's claims against an automobile seller for enforcement of drawer and signer obligations under the Georgia Uniform Commercial Code (UCC), O.C.G.A. § 11-3-414(b), and for a violation of the bad check statute, O.C.G.A. § 13-6-15, because there was no genuine issue of material fact over whether the seller was the drawer and signer of the check; the seller admitted that the seller's representative was the actual signatory of the check and that the representative possessed authority to sign checks on the seller's behalf. Consumer Solutions Fin. Servs. v. Heritage Bank, 300 Ga. App. 272, 684 S.E.2d 682 (2009).

Cited in Hall v. Harris, 239 Ga. App. 812, 521 S.E.2d 638 (1999).

CHAPTER 7 SETOFF AND RECOUPMENT

Sec.

• 13-7-1. Nature of setoff generally.
• 13-7-2. Nature of recoupment generally.
• 13-7-3. Setoff and recoupment distinguished.
• 13-7-4. Limitations as to claims or demands for setoff generally.
• 13-7-5. Setoff of demands between parties to suits.
• 13-7-6. Setoff of claims or demands against beneficiaries of suits.
• 13-7-7. Allowance of setoff against original payee in action by holder or transferee of negotiable instrument received under dishonor.
• 13-7-8. Allowance of setoff of debt of testator or intestate against representative of estate.
• 13-7-9. Allowance of setoff of distributive share in estate against judgment against legatee or owner of share.
• 13-7-10. Allowance of setoff of value of improvements against claim for mesne profits.
• 13-7-11. Allowance of setoff of debt not due against claim of nonresident or insolvent plaintiff.
• 13-7-12. Grounds for allowance of recoupment generally.
• 13-7-13. Actions in which recoupment may be pleaded; procedure where damages of defendant exceed damages of plaintiff.
• 13-7-14. Effect of conflict between this chapter and Chapter 11 of Title 9.

Law reviews.

- For comment on Heard v. Melin, 107 Ga. App. 772, 131 S.E.2d 131 (1963), see 26 Ga. B.J. 197 (1963).

JUDICIAL DECISIONS

Right of setoff did not originally exist at common law, and before enactment of this chapter was cognizable only in a court of equity. Robinson v. Lindsey, 184 Ga. 684, 192 S.E. 910 (1937).

OPINIONS OF THE ATTORNEY GENERAL

Holding public employee's final paycheck until state-owned property in employee's possession is returned.

- Treasurer and disbursing officer of Department of Public Safety can hold employee's final paycheck until all state-owned property possessed by employee has been turned in to department. 1970 Op. Att'y Gen. No. 70-145.

RESEARCH REFERENCES

ALR.

- Counterclaim or set-off as affecting rule as to part payment of a liquidated and undisputed debt, 4 A.L.R. 474; 53 A.L.R. 768.

Right of purchaser to acquire and assert outstanding title as against vendor, 40 A.L.R. 1078.

Setting up counterclaim, set-off, or recoupment in reply, 42 A.L.R. 564.

Character of claims available by way of setoff, counterclaim, or recoupment in action on construction contract, 46 A.L.R. 393.

Counterclaim or setoff as affecting rule as to part payment of a liquidated and undisputed debt, 53 A.L.R. 768.

Judgment as a contract within statute in relation to setoff or counterclaim, 55 A.L.R. 469.

Cause of action in tort as counterclaim in action on contract, 68 A.L.R. 451.

Setoff as between claims by or against bankrupt or insolvent and claims by or against trustee in bankruptcy, receiver, assignee, or trustee in insolvency, arising from transaction after bankruptcy or insolvency, 71 A.L.R. 804; 128 A.L.R. 809.

Right to setoff, as against claim for rent accruing subsequent to assignment by lessor or sublessor, claim existing against assignor at time of assignment, 78 A.L.R. 824.

Breach of executory contract occurring after assignment of a right thereunder as subject of recoupment against assignee, 87 A.L.R. 187.

Right of one partner in action at law against him by another partner on a personal claim to set up by counterclaim or otherwise claim arising out of partnership transactions, 93 A.L.R. 293.

Contractual waiver of right of set-off or counterclaim, 98 A.L.R. 602.

Right of endorser of commercial paper to setoff amount which he is obliged to pay thereon against independent indebtedness to insolvent maker or other person antecedently liable, where debt is assigned after making but prior to maturity of paper, 117 A.L.R. 900.

Setoff as between claims by or against bankrupt or insolvent and claims by or against trustee in bankruptcy, receiver, assignee, or trustee in insolvency, arising from transaction after bankruptcy or insolvency, 128 A.L.R. 809.

Overpayments of dividends on preferred stock as deductible in payment of dividends for later years, 10 A.L.R.2d 241.

Tort claim against which period of statute of limitations has run as subject of setoff, counterclaim, cross bill, or cross action in tort action arising out of same accident or incident, 72 A.L.R.3d 1065.

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