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.
HISTORY: 1990 Act No. 332, Section 1, eff February 20, 1990.