Ability of collection agencies to use statutory notice of dishonor of check

COLLECTION AGENCIES--CRIMES--Ability of collection agencies to use statutory notice of dishonor of check.

RCW 19.16.250 prohibits licensed debt collection agencies from threatening a debtor with criminal prosection.  This does not prevent an agency from including in the notice of dishonor of check the statutory language in RCW 62A.3-520 that cautions that law enforcement agencies may be provided with a copy of the notice.

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                                                                February 27, 1992

The HonorableLeo Thorsness
State Senator, District 11
110 Institutions Building, AS-33
Olympia, Washington  98504
                                                                                                                   Cite as:  AGO 1992 No. 2

Dear Senator Thorsness:

            By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:

            Is use of the statutory notice of dishonor of nonaccepted or nonpaid checks by a licensed collection agency prohibited by RCW 19.16.250(12)?

We answer your question in the negative.

                                                                    ANALYSIS

            All licensed debt collection agencies are subject to the various requirements set out in chapter 19.16 RCW.  Your question relates to the prohibition contained in RCW 19.16.250(12) which reads:

                        No licensee or employee of a licensee shall:

                    . . . .

                        (12) Communicate with a debtor or anyone else in such a manner as to harass, intimidate, threaten, or embarrass a debtor, including but not limited to communication at an unreasonable hour, with unreasonable frequency, by threats of force or violence, by threats of criminal prosecution, and by use of offensive language. . . .

(Emphasis supplied.)

            At the heart of this matter is the effect upon this prohibition by the recent amendment of RCW 62A.3-520 by Laws of 1991, ch. 168, § 2, p. 778.  This statute, as amended, provides:

                        The notice of dishonor shall be sent by mail to the drawer at his or her last known address, and said notice shall be substantially in the following form:

                                               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) ((One)) 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: ____________________________.

(Bill draft form.)

            The obvious effect of RCW 19.16.250(12) is to prohibit "threats of criminal prosecution".  The effect of the 1991 amendment to RCW 62A.3-520 is to permit the use in this single instance of the mandatory language in the notice of dishonor.  In other words, except where authorized by the 1991 amendment, the general prohibition against threats of prosecution by all licensed debt collection agencies and their employees would remain in effect.

            This interpretation is consistent with the well established rule that a more specific statute prevails over a general statute which deals with the same subject matter only to the extent that they cannot be harmonized.  Omega Nat'l Ins. Co. v. Marquardt, 115 Wn.2d 416, 424-27, 799 P.2d 235 (1990).

            We therefore conclude that the recent amendment to RCW 62A.3-520 authorizes collection agencies, as well as all other payees or holders of dishonored checks to utilize the notice of dishonor of checks as set out in Laws of 1991, ch. 168, § 2, p. 778.  Verbatim use of the statutory language by a licensed debt collection agency would not, in our judgment, violate RCW 19.16.250(12) when used in the context of a notice of dishonor.

            We trust this opinion will be of assistance to you.

                                    Very truly yours,

                                    J. LAWRENCE CONIFF
                                    Senior Counsel
                                    Assistant Attorney General

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