What happens if a cheque is unpaid, lost or stolen?
The bank is obliged to pay cheques in full or in part if there are available funds in the drawer’s account. However, it can refuse to make payment if it suspects that the signature has been forged or if the cheque has been reported as lost or stolen.
If a cheque is presented on time but cannot be paid in full, the drawer will be held liable. Any parties endorsing or guaranteeing the cheque may also be liable. The following action may be taken if this happens:
a) Legal action against drawers, endorsers or guarantors.
Payment may be demanded from:
- The person who wrote out and signed the cheque (the drawer).
- Any endorsers and guarantors of the cheque, provided the cheque was presented in due time and it can be shown that it was unpaid, by means of a:
- Notarial note of protest.
- Dated statement from the drawee stamped on the cheque indicating the presentation date.
- Statement from a clearing house, declaring that the cheque was presented in due time and that its payment was not settled.
The notarial note of protest or equivalent statement must be submitted before the presentation deadline expires, unless the cheque was presented in the last eight days of the presentation period, in which case it may be filed up to eight days after presentation.
Claims against drawers, endorsers or guarantors may be submitted up to six months after the presentation deadline.
b) Other general actions:
- Causal actions deriving from the business in relation to which a cheque was used (for instance, a purchase paid for by cheque).
- Action for unjust enrichment against the drawer and endorsers, if both reimbursement and causal actions are lost.
In the case of lost or stolen cheques, customers can initiate a voluntary legal procedure in the Spanish Commercial Court requesting that payment of a third party be prevented, or that the cheque be cancelled or its ownership recognised.
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