NSF Checks are a fact of life for those in the construction business. They are especially so when working in turbulent economic clients.
Getting paid with a NSF Check is actually not a terrible situation. In fact, in certain scenarios it can help your position against the non-paying party. While each side may have arguments about the quality of work or completeness of items before payment is made, once a check is written and it goes NSF, the old arguments disappear and you can focus on a very simple legal issue: (i) a check was written to you; (ii) it wasn’t honored; (iii) the money is now due.
In addition to simplifying the issues, most states (including Washington) have very powerful laws that impose penalties against dishonored checks. It is key to follow the relevant statutes and properly demand that the NSF Check be paid. Take special notice of RCW §62A.3-520 and RCW §62A.3-522.
Step 1: Give Notice of Dishonor
Upon receipt of a NSF check, you should deliver a “Notice of Dishonor of Check” to the drafter. The preferred language is provided for by statute, as follows:
NOTICE OF DISHONOR OF CHECK
A check drawn by you and made payable by you to ….. in the amount of ….. has not been accepted for payment by ……, which is the drawee bank designated on your check. This check is dated ……, and it is numbered, No…….
You are CAUTIONED that unless you pay the amount of this check within fifteen days after the date this letter is postmarked, you may very well have to pay the following additional amounts: (1) Costs of collecting the amount of the check, including an attorney’s fee which will be set by the court; (2) Interest on the amount of the check which shall accrue at the rate of twelve percent per annum from the date of dishonor; and (3) Three hundred dollars or three times the face amount of the check, whichever is less, by award of the court.
You are also CAUTIONED that law enforcement agencies may be provided with a copy of this notice of dishonor and the check drawn by you for the possibility of proceeding with criminal charges if you do not pay the amount of this check within fifteen days after the date this letter is postmarked.
You are advised to make your payment to ….. at the following address: ………
Step 2: Execute Affidavit of Sending Notice
This is a lot easier than it sounds. Simply add the following language to the end of your “Notice of Dishonor of Check,” fill in the blanks and sign it. Make sure you keep a copy of the Notice being sent, along with a signed Affidavit of delivery.
While not required by the terms of the statute, it’s good practice to send this notice via Certified Mail so you can track its delivery. Here is the affidavit of delivery language:
AFFIDAVIT OF SERVICE BY MAIL
I, ………., hereby certify that on the ….. day of ………., 20.., a copy of the foregoing Notice was served on ……… by mailing via the United States Postal Service, postage prepaid, at ………., Washington.
What NOT To Do
The first two steps are things you should do…this is a list of statutory things you should not do. The Washington statutes specifically enumerate these actions, and state that if a party does any of these things, that party will not be entitled to penalties, interest & attorneys fees in collecting on the NSF check:
- Do Not demand interest or collection costs in excess of the amounts provided for by statute;
- Do Not demand interest or collection costs prior to the expiration of fifteen days after the mailing of notice of dishonor;
- Do Not demand attorneys fees without having the fees set by the court, or prior to the expiration of fifteen days after the mailing of notice of dishonor.
Your Reward and The Next Step
If you follow Steps 1 and 2, and do not do the forbidden items within the “What NOT To Do” step, the statutes provide that you are entitled to the following if the check is not honored within 15 days of the notice:
- A reasonable handling fee for each instrument;
- Interest at the rate of 12% per annum from the date of dishonor
- Cost of collection not to exceed $40 or the face amount of the check, whichever is less
- Reasonable Attorneys Fees
- Penalty in the amount of $300, or three times the face amount of the check, whichever is less
If payment is not made as requested in the Notice of Dishonor, you can proceed with a civil action to enforce payment of the check, along with the penalties, interest and attorneys fees provided for by statute.
This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.