SOL on bad checks

[ksjane]

What is the name of your state?What is the name of your state? KS

Is there a SOL on how long a company has to collect on a check that was written with NSF? A friend wrote a check in 1995, it was returned NSF and it was never taken care of. She just now received a summons for this particular check. I am not for certain the details, but can certainly get them if needed. Its just that someone told her there was a SOL and they could not do anything and that she shouldnt respond because that would restart the SOL. I told her that I would look around because I didn't think not responding was a very good idea. Thanks in advance.

[Chien]

The Limitations period in KS for a dishonored check is 5 years, but your friend must file a response to the Summons. The SOL is an affirmative defense. If she doesn't assert it, the court will treat it as having been waived.

Being beyond the Limitations period does not mean that the creditor cannot file suit.

[ksjane]

KS
Thanks for the quick response. So she should respond to the summons and then what? Claim SOL? If it has expired, they can't do anything right? Other than file the suit? I'm sorry I know nothing about this. Thanks again.

[Chien]

So she should respond to the summons and then what? Claim SOL? If it has expired, they can't do anything right? Other than file the suit? I'm sorry I know nothing about this. Thanks again.

You have it. If they're past the limitations period, it's a complete defense. If she makes a partial payment, the clock starts again.

[ksjane]

Thanks again, one more question, when exactly does the SOL start? I am pretty certain that it has passed considering this was waaaay back in 95, and I havent spoken with my friend yet, but I am almost positive she has not made any payments or anything. The way she explained it earlier was she hasnt heard anything since 95, but just wanted to be certain. Again, thanks.

[Chien]

one more question, when exactly does the SOL start?

Interesting question. It's an open forum - you may get different answers. Mine would be when it's dishonored by presentment to the payor bank.

Some would say that a check is a written agreement - a promise to pay that's breached upon issuance, when not supported by funds and regardless of whether the payee knew of the lack of funds.

Checks are creatures of statute, specifically Article 3 of the Uniform Commercial Code as it was embodied in your state's statutes. The UCC defines a check as "(1) a draft, other than a documentary draft, payable on demand and drawn on a bank, (2) a cashier's check or teller's check, or (3) a demand draft. An instrument may be a check even though it is described on its face by another term, such as 'money order'". The more all-encompassing term is "negotiable instrument", which encompasses "check". For an instrument to be a draft, it must be an order, and an order can be but is not always a negotiable instrument and a check.

The UCC goes on to state that, if a draft is payable on demand, the draft is dishonored if presentment for payment is duly made to the acceptor and the draft is not paid on the date of presentment. We don't know the particulars of your friend's check - why and how it was issued, whether it was specially endorsed, and whether it could be directly tendered to the payor bank or had to move through the clearing system. Without that information, I can only guess that it was payable on demand and was dishonored upon presentment. If that's the case, my opinion is that's when the SOL began to run. Some may argue that notice of dishonor is required, but I would disagree.

Right? Another way of looking at it would be to say on or within a couple of days of issuance - a loooong time ago.