G. Bradley Hargrave
The holder of a check must look first to the drawer's bank for payment. If the bank refuses the item, the holder may collect the check amount (and depending on the jurisdiction, additional damages) from the drawer. In the event a lawsuit is necessary to compel the drawer's payment, the holder is required to produce evidence of the check's dishonor and notice thereof.
Pursuant to UCC [Rev.] Section 3-505:03, any of the following may be entered into evidence to create the presumptions of dishonor and notice of dishonor: a document which purports to be a "protest"; a stamp or writing of the drawer's bank on or accompanying the check which states that payment has been refused (unless reasons for the refusal are stated and the reasons are not consistent with dishonor); or a record from the drawer's bank reflecting the dishonored item.
"Protests" are notarized statements certifying that presentment of the check was made and that the item was dishonored for nonpayment. Obtaining a protest is generally unnecessary as most holder's opt to rely solely on the bank's stamp to establish the presumptions. Provided the stamp indicates that the check was dishonored for insufficient funds, the absence of an account, the garnishment of the drawer's account, or as the result of a stop payment order, no further evidence is necessary to create the presumptions of dishonor and notice of dishonor.
A procedural question may arise when the drawer's bank returns the check stamped, "Refer to Maker." The UCC makes no reference to this term; moreover, its legal meaning is unclear. Therefore, such a check may require the admission of a protest into evidence to establish the necessary presumptions, as well as some additional investigation on the part of the holder as to the reason for the check's non-payment.
