(1) Any person who obtains money, merchandise, property, or other thing of value, or who makes any payment of any obligation other than an obligation on a consumer credit transaction as defined in section 5-1-301 by means of making any check, draft, or order for the payment of money upon any bank, depository, person, firm, or corporation that is not paid upon its presentment, is liable to the holder of the check, draft, or order or any assignee for collection for one of the following amounts, at the option of the holder or assignee:
(a) The face amount of the check, draft, or order plus actual damages determined in accordance with the provisions of the "Uniform Commercial Code", title 4, C.R.S.; or
(b) An amount equal to the face amount of the check, draft, or order and:
(I) The amount of any reasonable posted or contractual charge not exceeding twenty dollars; and
(II) If the check, draft, or order has been assigned for collection to a person licensed as a collection agency pursuant to article 16 of title 5 as costs of collection, twenty percent of the face amount of the check, draft, or order but not less than twenty dollars; or
(c) An amount as provided in subsection (2) of this section.
(2) (a) If notice of nonpayment on presentment of the check, draft, or order has been given in accordance with subsections (3) and (4) of this section and the total amount due as set forth in the notice has not been paid within fifteen days after such notice is given, instead of the amounts set forth in paragraph (a) or (b) of subsection (1) of this section, the person shall be liable to the holder or any assignee for collection for three times the face amount of the check but not less than one hundred dollars and, with regard to a paycheck, actual damages caused by the nonpayment, including associated late fees.
(b) The person, also referred to in this section as the "maker", shall not be liable in accordance with the provisions of paragraph (a) of this subsection (2) if he establishes any one of the following:
(I) That the account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was made, plus all other checks, drafts, and orders on the account then outstanding and unpaid;
(II) That the check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentment;
(III) That funds sufficient to cover the check, draft, or order were garnished, attached, or set off and the maker had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was made;
(IV) That the maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was made;
(V) That the making of the check, draft, or order was induced by fraud or duress;
(VI) That the transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.
(3) Notice that a check, draft, or order has not been paid upon presentment shall be in writing and given in person and receipted for, or by personal service, or by depositing the notice by certified mail, return receipt requested and postage prepaid, or by regular mail supported by an affidavit of mailing sworn and retained by the sender, in the United States mail and addressed to the recipient's most recent address known to the sender. If the notice is mailed and not returned as undeliverable by the United States postal service, notice shall be conclusively presumed to have been given on the date of mailing. For the purpose of this subsection (3), "undeliverable" does not include unclaimed or refused.
(4) The notice given pursuant to subsection (3) of this section shall include the following information regarding the unpaid check, draft, or order:
(a) The date the check, draft, or order was issued;
(b) The name of the bank, depository, person, firm, or corporation on which it was drawn;
(c) The name of the payee;
(d) The face amount;
(e) A statement of the total amount due, which shall be itemized and shall not exceed the amount permitted under paragraph (a) or (b) of subsection (1) of this section;
(f) A statement that the maker has fifteen days from the date notice was given to make payment in full of the total amount due; and
(g) A statement that, if the total amount due is not paid within fifteen days after the date notice was given, the maker may be liable in a civil action for three times the face amount of the check but not less than one hundred dollars and that, in such civil action, the court may award court costs and reasonable attorney fees to the prevailing party.
(5) No holder or assignee for collection shall assert that any maker has liability for any amount set forth under subsection (2) of this section unless such liability has been determined by entry of a final judgment by a court of competent jurisdiction.
(6) In any civil action brought under this section, the prevailing party may recover court costs and reasonable attorney fees. In addition, in an action brought under paragraph (b) of subsection (1) of this section, if the holder or assignee for collection prevails, actual costs of collection may be recovered by the holder or assignee for collection if such actual costs of collection are greater than the costs of collection provided under such paragraph (b).
(7) Nothing in this section shall be deemed to apply to any check, draft, or order on which payment has been stopped by the maker by reason of a dispute relating to the money, merchandise, property, or other thing of value obtained by the maker.
(8) Nothing in this section applies to any criminal case or affects eligibility or terms of probation.
(9) Any limitation on a cause of action under this section, except a cause of action under subsection (2) of this section, shall be governed by the provisions of section 13-80-103.5. Any limitation on a cause of action under subsection (2) of this section shall be governed by the provisions of section 13-80-102.
Source: L. 67: pp. 827, 828, §§ 1, 3. C.R.S. 1963: § 41-2-9. L. 84: (1) amended, p. 463, § 1, effective July 1. L. 89: Entire section R&RE, p. 754, § 1, effective July 1. L. 2002: (3) amended, p. 310, § 1, effective August 7. L. 2009: (2)(a) amended, (HB 09-1108), ch. 161, p. 696, § 2, effective August 5. L. 2017: IP(1) and (1)(b)(II) amended, (HB 17-1238), ch. 260, p. 1173, § 18, effective August 9.
ANNOTATION
The commonly understood meaning of the term "any person", which is not defined in this section, could include either an individual or a corporation, as well as a person signing on behalf of a corporation. Mtn. States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996).
If the general assembly had intended to limit the liability of a person signing a check in a representative capacity, it could have so stated. This section provides no such exception, however. Thus, a corporate officer could be found individually liable under this section. Mtn. States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996) (decided under § 13-21-109 prior to enactment of § 4-3-402 (c)).
The general assembly's enactment of § 4-3-402 (c) directs that an authorized corporate officer who signs his or her name to a check issued on an account of a corporation is not liable for that check so long as the corporation is identified as the owner of the account on the check, and it would be incongruous for a corporate officer to be relieved of personal liability on a check pursuant to § 4-3-402 (c), but still be liable for three times the face amount of the check pursuant to subsection (2) of this section. Kunz v. Cycles W., Inc., 969 P.2d 781 (Colo. App. 1998).
The general assembly intended the phrases "any person", "the person", and "the maker" in this section to refer to the corporation when the owner of the account is a corporation and the signature on the check is that of an authorized corporate officer. Kunz v. Cycles W., Inc., 969 P.2d 781 (Colo. App. 1998).
The general assembly intended the word "made" to mean when a check is written, not when the check was delivered, mailed, or drawn. Suncor Energy (USA) v. Aspen Petroleum, 178 P.3d 1263 (Colo. App. 2007).
The maker's liability for damages under subsection (2) is not affected by subsection (5) nor by the doctrine of election of remedies. Where the maker satisfies the underlying debt after the 15-day deadline, liability for the statutory penalty is partially offset but is not negated. Singer v. Strauss, 851 P.2d 256 (Colo. App. 1993).
Trial court erred in finding that a letter returned as "unknown" was not "returned as undeliverable" under subsection (3). Stadler v. DeVito, 931 P.2d 573 (Colo. App. 1996).
Even assuming that markings of "attempted, unknown" and "moved" on notice of presentment means that notice was undeliverable, the only consequence of assumption is that assignee of debt cannot avail itself of conclusive presumption under subsection (3) that notice was given on the date of mailing. Mtn. States Commercial v. 99 Liquid., 940 P.2d 934 (Colo. App. 1996).
Strict compliance with notice requirements in this section is necessary. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).
Failure to comply with notice provisions precludes the collection of treble damages. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).
Attorney fees are not "collection costs" under this section. Group, Inc. v. Spanier, 940 P.2d 1120 (Colo. App. 1997).
Applied in Berckefeldt v. Hammer, 44 Colo. App. 320, 616 P.2d 183 (1980).