HOUSE BILL No. 4446 March 5, 1997, Introduced by Reps. Profit, Nye, Curtis, Dalman, Green, Kukuk and Walberg and referred to the Committee on Judiciary. A bill to amend 1961 PA 236, entitled "Revised judicature act of 1961," by amending sections 2952 and 2953 (MCL 600.2952 and 600.2953), section 2952 as added by 1984 PA 276 and section 2953 as added by 1988 PA 50. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 2952. (1)Exclusive of any penal sanctions which may2apply, any person who makes, draws, utters, or delivers any3check, draft, or order for the payment of money upon any bank or4other depository, or person, firm, or corporation, which refuses5to honor the check, draft, or order for lack of funds or credit6to pay or because the maker has no account with the drawee, and7who fails to pay the amount of the check, draft, or order in cash8as provided in subsections (2) and (3) shall be liable for the9penalty provided in subsection (4).IN ADDITION TO APPLICABLE 01764'97 VPW 2 1 PENAL SANCTIONS, A PERSON WHO MAKES, DRAWS, UTTERS, OR DELIVERS A 2 CHECK, DRAFT, OR ORDER FOR PAYMENT OF MONEY UPON A BANK OR OTHER 3 DEPOSITORY, PERSON, FIRM, OR CORPORATION THAT REFUSES TO HONOR 4 THE CHECK, DRAFT, OR ORDER FOR LACK OF FUNDS OR CREDIT TO PAY OR 5 BECAUSE THE MAKER HAS NO ACCOUNT WITH THE DRAWEE IS LIABLE FOR 6 THE AMOUNT OF THE DISHONORED CHECK, DRAFT, OR ORDER, PLUS A PRO- 7 CESSING FEE, CIVIL DAMAGES, AND COSTS, AS PROVIDED IN THIS 8 SECTION. 9 (2)AnyA payee OR AN AGENT OF A PAYEE may make a written 10 demand for payment of a check, draft, or order of the type speci- 11 fied in subsection (1), which demandshallMAY be delivered to 12 the maker bycertifiedFIRST-CLASS mail., return receipt13requested, and delivery restricted to the addressee.The text of 14 the written demand shall be as follows: 15"On (date) a check drawn by you for $________16was returned to us dishonored for [ ] not sufficient17funds [ ] no account. If you do not pay to us, within1830 days of the time you receive this notice, the full19amount of the check in cash, we have the right to bring20an action against you for 2 times the amount of the21dishonored check ($________) or $50.00, whichever is22greater, or to make a criminal complaint against you.23If you do pay to us, within 30 days of the time you24receive this notice, the full amount of the check in25cash, we will not take further action against you."01764'97 3 1 "A CHECK, DRAFT, OR ORDER FOR PAYMENT OF MONEY DRAWN BY YOU 2 FOR $__________ WAS RETURNED TO ME/US/OUR CLIENT (CLIENT'S NAME) 3 DISHONORED FOR: 4 [ ] INSUFFICIENT FUNDS 5 [ ] NO ACCOUNT 6 THIS NOTICE IS A FORMAL DEMAND FOR PAYMENT OF THE FULL 7 AMOUNT OF THE DISHONORED CHECK, DRAFT, OR ORDER PLUS A PROCESSING 8 FEE OF $25.00 FOR A TOTAL AMOUNT OF $__________. IF YOU PAY THIS 9 TOTAL AMOUNT WITHIN 4 DAYS AFTER THE DATE THIS NOTICE WAS MAILED, 10 NO FURTHER CIVIL ACTION WILL BE TAKEN AGAINST YOU. 11 IF YOU DO NOT PAY THE $__________ AS REQUESTED ABOVE, BUT 12 WITHIN 30 DAYS AFTER THE DATE THIS NOTICE WAS MAILED YOU PAY THE 13 AMOUNT OF THE DISHONORED CHECK, DRAFT, OR ORDER PLUS A $35.00 14 PROCESSING FEE, FOR A TOTAL AMOUNT OF $__________, NO FURTHER 15 CIVIL ACTION WILL BE TAKEN AGAINST YOU. 16 IF YOU FAIL TO PAY EITHER AMOUNT INDICATED ABOVE, I/WE/OUR 17 CLIENT WILL BE AUTHORIZED BY STATE LAW TO BRING A CIVIL ACTION 18 AGAINST YOU TO DETERMINE YOUR LEGAL RESPONSIBILITY FOR PAYMENT OF 19 THE CHECK, DRAFT, OR ORDER AND CIVIL DAMAGES AND COSTS ALLOWED BY 20 LAW. 21 IF YOU DISPUTE THE DISHONORING OF THIS CHECK, DRAFT, OR 22 ORDER, YOU SHOULD ALSO CONTACT YOUR BANK OR FINANCIAL INSTITUTION 23 IMMEDIATELY.". 24 (3) A DEBT COLLECTOR SHALL NOT SEND A DEMAND DESCRIBED IN 25 SUBSECTION (2) UNTIL THE DEBT COLLECTOR HAS FULLY COMPLIED WITH 26 THE PROCEDURES REQUIRED IN SECTION 809 OF THE FAIR DEBT 27 COLLECTION PRACTICES ACT, TITLE VIII OF THE CONSUMER CREDIT 01764'97 4 1 PROTECTION ACT, PUBLIC LAW 90-321, 15 U.S.C. 1692g. AS USED IN 2 THIS SUBSECTION, "DEBT COLLECTOR" MEANS THAT TERM AS DEFINED IN 3 SECTION 803 OF THE FAIR DEBT COLLECTION PRACTICES ACT, TITLE VIII 4 OF THE CONSUMER CREDIT PROTECTION ACT, PUBLIC LAW 90-321, 15 5 U.S.C. 1692a. 6 (4)(3) If the maker fails to pay the amount of the check,7draft, or order in cash to the payee within 30 days of receipt of8the written demand for payment made pursuant to subsection (2),9the maker shall be liable for the penalty provided in subsection10(4).THE MAKER OF A DISHONORED CHECK, DRAFT, OR ORDER FOR PAY- 11 MENT OF MONEY IS LIABLE TO THE PAYEE AS PROVIDED IN 12 SUBSECTION (5) IF THE MAKER FAILS TO PAY 1 OF THE FOLLOWING IN 13 CASH TO THE PAYEE OR A DESIGNATED AGENT OF THE PAYEE AFTER THE 14 MAILING OF A WRITTEN DEMAND FOR PAYMENT PURSUANT TO 15 SUBSECTION (2): 16 (A) WITHIN 4 DAYS AFTER THE DATE THE WRITTEN DEMAND PROVIDED 17 IN SUBSECTION (2) IS MAILED, THE FULL AMOUNT OF THE DISHONORED 18 CHECK, DRAFT, OR ORDER, PLUS A PROCESSING FEE OF $25.00. 19 (B) WITHIN 30 DAYS AFTER THE DATE OF THE MAILING OF THE 20 NOTICE PROVIDED IN SUBSECTION (2), THE FULL AMOUNT OF THE DISHON- 21 ORED CHECK, DRAFT, OR ORDER, PLUS A PROCESSING FEE OF $35.00. 22 (5)(4)Except as otherwise provided inthis subsection23and subsection (5)SUBSECTION (6), a maker who fails to make 24 payment pursuant to subsection(3) shall be(4) AND WHO IS 25 FOUND RESPONSIBLE FOR PAYMENT IN A CIVIL ACTION IS liable to the 26 payee, including the amount of the check, draft, or order, for27damages of double the amount of the check, draft, or order, which01764'97 5 1damages shall be not less than $50.00, and not more than $500.00,2unless justice would not be served by an award of double damages3and would be served by an award of a lesser amount. If the4amount of the check is over $500.00, the maker shall only be5liable for the amount of the check.FOR PAYMENT OF ALL OF THE 6 FOLLOWING: 7 (A) THE FULL AMOUNT OF THE CHECK, DRAFT, OR ORDER. 8 (B) CIVIL DAMAGES OF 2 TIMES THE AMOUNT OF THE DISHONORED 9 CHECK, DRAFT, OR ORDER OR $100.00, WHICHEVER IS GREATER. 10 (C) COSTS OF $250.00. 11(5) If, before the trial of an action brought pursuant to12this section, the maker pays to the payee in cash the amount of13the dishonored check, draft, or order plus reasonable costs, such14costs not to exceed $50.00, subsection (4) shall not apply.15 (6) SUBSECTION (5) DOES NOT APPLY IF, BEFORE THE TRIAL OF AN 16 ACTION BROUGHT PURSUANT TO THIS SECTION, THE MAKER PAYS TO THE 17 PAYEE OR A DESIGNATED AGENT OF THE PAYEE, IN CASH, THE TOTAL OF 18 THE AMOUNTS DESCRIBED IN SUBSECTION (4)(B), PLUS REASONABLE 19 COSTS, NOT EXCEEDING $250.00, AS AGREED TO BY THE PARTIES. 20 (7)(6)An action under this section may be brought in the 21 small claims division of the district court, if it does not 22 exceed the jurisdiction of the small claims division, or in any 23 other appropriate court. If the amount of the check exceeds the 24 jurisdiction of the small claims division, the action may still 25 be brought in the small claims division, but the amount of dam- 26 ages awarded shall not exceed the jurisdiction of the small 27 claims division. 01764'97 6 1(7) If, subsequent to an action brought pursuant to this2section, a criminal prosecution arising out of the same transac-3tion is brought, a judgment in favor of a plaintiff payee shall4be void, and any money paid pursuant to the judgment shall be5ordered repaid to the defendant maker. If a criminal prosecution6arising out of the same transaction is brought before or during7an action brought pursuant to this section, the action shall be8dismissed.9 Sec. 2953. (1) In addition toanyAPPLICABLE penal 10sanctionSANCTIONS, a person who commits an act for which he or 11 she could be charged withthe crime ofretail fraud in the 12 first,orsecond, OR THIRD degree, as defined inUNDER sec- 13 tions 356c and 356d of the MichiganPenal Code, Act No. 328 of14the Public Acts of 1931, being sections 750.356c and 750.356d of15the Michigan Compiled Laws, shall bePENAL CODE, 1931 PA 328, 16 MCL 750.356C AND 750.356D, IS liable to the merchant who is the 17 victim of the act for the full retail price of unrecovered prop- 18 erty or recovered property that is not in salable condition, and 19acivilpenaltyDAMAGES of 10 times the retail price of the 20 property, but not less than$40.00$75.00 and not more than 21$100.00$200.00. 22 (2) The merchant who is the victim of retail fraud in the 23 first,orsecond, OR THIRD degree, or an agent of the merchant, 24 may make a written demand for payment of the amount for which the 25 person who committed the act is liable under subsection (1). 26 Except for a sole proprietorship, a member of management, other 27 than the initial detaining person, shall evaluate the validity of 01764'97 7 1 the accusation that the person committed the act and shall 2 approve the accusation in writing before a written demand for 3 payment is issued. The demand for paymentshallMAY be deliv- 4 ered to the person from whom payment is demandedin person or5 bycertifiedFIRST-CLASS mail., return receipt requested, and6delivery restricted to the addressee.The text of the written 7 demand shall be as follows: 8"We have cause to believe that on __________ (date) you9committed retail fraud in the first degree or second degree by10__________ (description of action and personal property) in our11store. If, within 30 days of the time you receive this notice,12you return the property in salable condition or pay to us $_____,13which represents the full retail price/remaining balance of the14full retail price of the property, plus an amount of 10 times the15retail price of the property, but not less than $40.00 and not16more than $100.00, equaling a total amount of $_____, we will not17take further civil action against you for this incident.18If you fail to comply with this demand, we have the right to19bring an action against you in court for $_____, which represents20the full retail price/remaining balance of the full retail price21of the property; a $200.00 civil penalty; and our reasonable22costs, not to exceed $50.00; equaling a total amount of $_____."23(3) A merchant shall include with the demand for payment24that is delivered to a person pursuant to subsection (2) an25attachment. The text of the attachment shall be as follows:26"You are (your minor child is) accused of27retail fraud. Michigan law allows the merchant to01764'97 8 1ask in writing that you return or pay for the2merchandise and pay an amount of $__________. If3you do, no further civil action will be taken4against you. This civil action has no effect on5possible criminal action.6You do not have to respond to this letter if7you are innocent or choose not to respond.8However, if you do not respond, the merchant may9then sue you in small claims court. Both you and10the merchant will state your case in your own words11without lawyers. The decision of the small claims12court is final and cannot be appealed.13If you wish to be represented by a lawyer you14may ask that the case against you be heard by the15district court. You and the merchant may be repre-16sented by a lawyer and have the right to appeal to17a higher court.18Questions regarding court procedures can be19answered by the clerk of the district court."20 "WE HAVE CAUSE TO BELIEVE THAT ON (DATE) YOU, OR YOUR 21 MINOR CHILD (CHILD'S NAME) , COMMITTED RETAIL FRAUD IN THE 22 FIRST, SECOND, OR THIRD DEGREE BY (DESCRIPTION OF ACTION AND 23 PROPERTY INVOLVED) IN OUR STORE OR IN ITS IMMEDIATE VICINITY. 01764'97 9 1 STATE LAW AUTHORIZES US TO DEMAND IN WRITING THAT YOU DO ALL 2 OF THE FOLLOWING, AS APPLICABLE: 3 [ ] RETURN THE PROPERTY IN SALABLE CONDITION OR PAY TO 4 US $______, WHICH REPRESENTS THE FULL RETAIL PRICE OR 5 THE REMAINING BALANCE OF THE FULL RETAIL PRICE OF THE 6 PROPERTY. 7 [ ] PAY TO US $______, WHICH REPRESENTS THE FULL 8 RETAIL PRICE OF THE RECOVERED PROPERTY THAT IS NOT IN 9 SALABLE CONDITION. 10 [ ] PAY TO US CIVIL DAMAGES IN AN AMOUNT EQUAL TO 10 11 TIMES THE RETAIL PRICE OF THE PROPERTY INVOLVED, BUT 12 NOT LESS THAN $75.00 OR MORE THAN $200.00, EQUALING A 13 TOTAL AMOUNT OF $______. 14 THIS NOTICE IS A FORMAL DEMAND FOR RETURN OF THE PROPERTY 15 INVOLVED, IF APPLICABLE, AND THE PAYMENT OF THE AMOUNTS INDICATED 16 ABOVE, EQUALING A TOTAL AMOUNT OF $______. IF YOU RETURN ANY 17 UNRECOVERED PROPERTY AND PAY THE AMOUNTS INDICATED ABOVE TO US 18 WITHIN 30 DAYS AFTER THE DATE THIS NOTICE WAS MAILED, WE WILL NOT 19 TAKE ANY FURTHER CIVIL ACTION AGAINST YOU. 20 YOU ARE NOT REQUIRED TO RESPOND TO THIS DEMAND IF YOU 21 BELIEVE THAT YOU OR YOUR MINOR CHILD ARE NOT GUILTY OF COMMITTING 22 RETAIL FRAUD OR IF YOU CHOOSE NOT TO RESPOND. IF YOU FAIL TO 23 COMPLY WITH THIS DEMAND, WE WILL BE AUTHORIZED BY STATE LAW TO 24 BRING A CIVIL ACTION AGAINST YOU TO DETERMINE YOUR LEGAL RESPON- 25 SIBILITY FOR THE RETURN OF ANY UNRECOVERED PROPERTY AND THE PAY- 26 MENT OF THE AMOUNTS INDICATED ABOVE PLUS THE COST OF THE ACTION, 27 INCLUDING REASONABLE ATTORNEY FEES. 01764'97 10 1 THESE CIVIL PROCEEDINGS DO NOT PREVENT CRIMINAL PROSECUTION 2 FOR THE ALLEGED ACT OF RETAIL FRAUD.". 3 (3)(4)If the person to whom a written demand is made 4 under subsection (2) complies with the written demand within 5 30 days afterits receiptTHE DATE THE WRITTEN DEMAND IS 6 MAILED, that person shall incur no further civil liability to the 7 merchant from the act of retail fraud. 8 (4)(5)A person who commits an act described in 9 subsection (1) and who fails to comply with a written demand 10 under subsection (2)shall beIS liable to the merchant for the 11 full retail price of the property, unless the property was recov- 12 ered in salable condition, plusacivilpenaltyDAMAGES of 10 13 TIMES THE RETAIL PRICE OF THE PROPERTY BUT NOT LESS THAN $75.00 14 OR MORE THAN $200.00, andreasonablecosts OF THE ACTION,not15exceeding $50.00INCLUDING REASONABLE ATTORNEY FEES. 16 (5)(6)If a civil action is filed pursuant to this sec- 17 tion and before the trial of the action is commenced the person 18 to whom a written demand was made under subsection (2) pays the 19 merchant in cash the amount demanded, subsection(5) shall(4) 20 DOES not apply. 21 (6)(7)An action under this section may be brought in the 22 small claims division of the district court or in any other court 23 of competent jurisdiction. If the amount demanded exceeds the 24 jurisdiction of the small claims division, the action may still 25 be brought in the small claims division, but the amount recovered 26 shall not exceed the jurisdiction of the small claims division. 01764'97 11 1 (7)(8)A merchant may recover damages in an amount 2 allowable under this section in a civil action in a court of 3 competent jurisdiction against the parent or parents of an 4 unemancipated minorwho lives with his or her parent or parents5andwho commits an act described in subsection (1). THE DAMAGES 6 RECOVERED UNDER THIS SUBSECTION SHALL NOT EXCEED $5,000.00. 7 (8)(9)A merchant may recover the amount for which a 8 person is civilly liable under this section only if a formal 9 police report is filed withthe prosecuting attorney or munici-10pal attorneyA LOCAL LAW ENFORCEMENT AGENCY THAT HAS JURISDIC- 11 TION OVER THE LOCATION WHERE THE VIOLATION TOOK PLACE, WHICH 12 REPORT SETS FORTH FACTS alleging that the person has committed 13 retail fraud in the first,orsecond, OR THIRD degree or vio- 14 lated a local ordinance substantially corresponding to 15 section 218, 356, 356c, or 356d of the Michigan penal code,Act16No. 328 of the Public Acts of 1931, being sections 750.218,17750.356, 750.356c, and 750.356d of the Michigan Compiled Laws18 1931 PA 328, MCL 750.218, 750.356, 750.356C, AND 750.356D, 19 regardless of the outcome of any criminal action. 20 (9)(10)Notwithstanding any other provision of this sec- 21 tion, a merchant shall not recoveracivilpenaltyDAMAGES 22 for an act of retail fraud in the first,orsecond, OR THIRD 23 degree with regard to a particular item of property if the mer- 24 chant violated section 3 ofAct No. 449 of the Public Acts of251976, being section 445.353 of the Michigan Compiled Laws1976 26 PA 449, MCL 445.353, with regard to that item of property and the 01764'97 12 1 violation was not caused by the person who committed the act of 2 retail fraud. 3 Enacting section 1. This amendatory act takes effect 4 January 1, 1998. 5 Enacting section 2. This amendatory act does not take 6 effect unless all of the following bills of the 89th Legislature 7 are enacted into law: 8 (a) Senate Bill No. ________ or House Bill No. ________ 9 (request no. 01762'97). 10 (b) Senate Bill No. ________ or House Bill No. ________ 11 (request no. 01763'97). 01764'97 Final page. VPW