H. B. 2589
(By Delegates Hendricks and Campbell)
[Introduced March 15, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight-a; and to
amend and reenact sections thirty-nine-e, thirty-nine-g and
thirty-nine-h, article three, chapter sixty-one of said
code, all relating to worthless checks; civil liability for
worthless checks; satisfaction of claim; economic hardship
exception; defenses; notice of dishonor; service charges;
complaint for warrant; costs; payment of costs; and
disposition of costs.
Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eight-a; and
that sections thirty-nine-e, thirty-nine-g and thirty-nine-h,
article three, chapter sixty-one of said code be amended and
reenacted, all to read as follows:
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 8A. WORTHLESS CHECKS.
§55-8A-1. Civil liability for worthless check.
In any civil action brought for the purpose of collecting a
check or other such instrument, the payment of which was refused
by the drawee because of the lack of funds, credit, or an
account, and where the maker or drawer fails to pay the amount
owing, in cash, to the payee or holder within ten days following
a written notice of dishonor and demand for payment as provided
in section thirty-nine-e, article three, chapter sixty-one of
this code, the maker or drawer shall be liable to the payee or
holder, in addition to the amount owing upon such check or
instrument, for damages of triple the amount so owing upon such
check or instrument but not to exceed five hundred dollars:
Provided,
That in no case shall the liability for damages be less
than one hundred dollars.
§55-8A-2. Satisfaction of claim during pendency of action.
Subsequent to the commencement of an action under this
article but prior to trial, the defendant may tender to the
plaintiff as complete satisfaction of the claim, an amount of
money equal to the sum of the amount of the check or other
instrument plus twenty dollars.
§55-8A-3. Economic hardship exception.
If the court or jury determines that the failure of the
defendant to satisfy the check or other instrument refused was
due to economic hardship, the court or jury may waive all or partof the damages provided in section one of this article:
Provided,
That the court shall render judgment against the
defendant for not less than the amount of such instrument refused
plus twenty dollars.
§55-8A-4. Defenses to action.
It shall be a defense to any civil action brought for the
purpose of collecting such dishonored check or instrument that:
(a) The dishonor of such instrument was due to a justifiable
stop payment order or to the attachment of the account; or
(b) Within ten days from the mailing of a written notice of
dishonor and demand for payment as provided in section thirty-
nine-e, article three, chapter sixty-one of this code, the maker
or drawer has paid to the payee or holder the full amount of such
instrument, plus the service charge as provided by the aforesaid
section of the code.
§55-8A-5. Criminal provisions excluded.
Criminal prosecution under article three, chapter sixty-one
of this code is not a prerequisite or bar to application of the
provisions of this article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39e. Notice of dishonor by payee; service charge.
The payee or holder of a check, draft or order which has
been dishonored because of insufficient funds or credit may send
notice thereof to the drawer of the check, draft or order. The
payee or holder of any such dishonored check may impose a servicecharge not to exceed fifteen twenty dollars. No service charge
shall be imposed or collected after a complaint for warrant has
been delivered to magistrate court. No payee or holder of a
check, draft or order which has been dishonored because of
insufficient funds or credit shall incur any civil or criminal
liability for the sending of a notice and demand substantially in
the form provided herein, other provisions of law
notwithstanding. The form of such notice and demand shall be
substantially as follows:
"You are hereby notified that a check, number
................, issued by you on (date of check), drawn upon
(name of bank), and payable to ..........................., has
been dishonored. Pursuant to West Virginia law, you have ten
days from the date of this notice to tender payment of the full
amount of such check plus a fifteen twenty dollar service charge
to the undersigned at .........................................
You are further notified that in the event the above amount is
timely paid in full you will not be subject to legal proceedings,
civil or criminal.
If you do not timely pay the above amount in full, you may
be liable under article eight-a, chapter fifty-five of the code
of West Virginia, for damages in addition to the amount of the
check, for an amount up to three times the amount of the check
but not less than one hundred dollars and not more than five
hundred dollars plus associated costs.
Dated ....................., 19.....
....................................
(Signed)."
The provisions of this section shall not authorize the
making of any other written or oral threats of criminal
prosecution to enforce or enhance the collection or honoring of
said dishonored check, draft or order.
The holder or payee of any such check, draft or note shall
relinquish the check, draft or order instrument to the maker upon
tender of the full amount due plus the service charge, if any, at
any time before a complaint for warrant has been presented to
magistrate court. In the event complaint for warrant has been
presented to magistrate court, payment may be made only through
with prior approval of such court and any holder or payee
unlawfully accepting payment after such time shall be liable for
all costs which may be imposed by magistrate court in the matter,
including all costs which may have accrued by the time the
magistrate court is notified of such payment.
§61-3-39g. Complaint; notice of complaint; issuance of warrant;
payment procedures; costs.
After receipt of a complaint for warrant for a violation of
section thirty-nine or thirty-nine-a of this article, the
magistrate court shall proceed with the issuance of the warrant
as is provided by law:
Provided,
That no warrant shall issue for
an offense under section thirty-nine or thirty-nine-a of this
article which, upon conviction, would be punishable as a
misdemeanor, unless and until the payee or holder of the check,draft or order which has been dishonored has sent notice thereof
to the drawer of the check, draft or order in accordance with the
provisions of section thirty-nine-e of this article, or unless
and until notice has been sent by the magistrate as hereinafter
provided. Proof that such notice was sent by the payee or holder
shall be evidenced by presentation of a return receipt indicating
that the notice was mailed to the drawer by certified mail, or,
in event the mailed notice was not received or was refused by the
drawer, by presentation of the mailed notice itself. The
magistrate court shall receive and hold the check, draft or
order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or
holder, the magistrate court shall immediately prepare and mail
to the drawer of such check, draft or order a notice in form
substantially as follows and shall impose additional court costs
in the amount of ten twenty dollars. Such notice shall be mailed
to the drawer by United States mail, first class and postpaid, at
the address provided at the time of presenting such check, draft
or order. Service of such notice shall be complete upon mailing.
Such notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following
effect and purpose by .............. who upon oath complains that
on the ...... day of .........., 19...., you did unlawfully issue
and deliver unto him a certain check in the amount of ...........drawn on ......................................... (name of bank)
where you did not have funds on deposit in or credit with said
bank with which to pay same upon presentation and pray that a
warrant issue and that you be apprehended wherever you may be
found by an officer authorized to make such an arrest and dealt
with in accordance with the laws of the state of West Virginia.
A warrant for arrest will be issued on or after the
......... day of ................, 19....
You can nullify the effect of said complaint and avoid
arrest by paying to the magistrate court clerk at
...................... the amount due on said check and the costs
of this proceeding in the amount of ............. on or before
said ............ day of ...................., 19...., at which
time you will be given a receipt with which you can obtain said
check from the magistrate named below. The complainant is
forbidden by law to accept payment.
Magistrate Court of ..................................
County
.....................................
Date: .............................."
Such notice shall give the drawer of any such check, draft
or order ten days within which to make payment to magistrate
court. In the event such drawer pays the amount of the check
plus court costs to the magistrate court within the ten-day
period no warrant shall issue. The payment may be made to the
magistrate court in person or by mail by cash, certified check,bank draft or money order and, in the event such payment is made
by mail, the magistrate court clerk shall forthwith mail to the
maker of such check the receipt hereinbelow required. In the
event such total amount is not so paid the court shall proceed
with the issuance of the warrant as is provided by law.
Upon receipt of payment of such total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing such check with which receipt the drawer shall be
entitled to receive the dishonored check, draft or order from the
magistrate holding the check, draft or order. No service charge
shall be charged or collected by the holder or payee of a
dishonored check, draft or order after filing a complaint for
warrant. The magistrate court clerk shall forward the amount of
the check to the payee or holder thereof, along with a
description of the check, draft or order sufficient to enable the
person filing the complaint to identify such check, draft or
order and the transaction involved. Costs collected shall be
dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
has been issued may at any time prior to trial pay to the court
the amount of the check plus such court costs as would be
assessed if such person were found guilty of the offense charged.
Such costs shall be imposed in accordance with the provisions of
section two, article three, chapter fifty of this code.
§61-3-39h. Payment of costs in worthless check cases;
disposition of certain costs.
In any prosecution under sections thirty-nine or thirty-
nine-a of this article such costs as may otherwise be imposed
against the drawer of any such check, draft or order shall be
imposed on the person initiating the prosecution if payment of
the check, draft or order is accepted by the payee or holder
thereof after the filing of a complaint for warrant; if the payee
or holder had reason to believe that the check, draft or order
would be dishonored or if the same was postdated; or if the
matter is dismissed for failure to prosecute.
Costs collected by magistrate court for issuance of notice
as authorized by section thirty-nine-g of this article shall not
be paid into the special county fund created by the provisions of
section four, article three, chapter fifty of this code, but
shall be accounted for separately and retained by the county in
a fund designated the "worthless check fund," until the sheriff
shall issue warrants in furtherance of the allowable expenses
specifically provided for by this section. Such costs shall not
be included in any calculation of the amount of funds to be
retained by the county under the provisions of section four,
article three, chapter fifty of this code.
A county may after agreement with the court administrator's
office of the supreme court of appeals appropriate and spend from
the worthless check fund herein established such sums as shall be
necessary to pay or defray the expenses of providing a deputy
sheriff to serve warrants for worthless check offenses and to
pay or defray the expenses of providing additional deputy clerksin the office of the magistrate court clerk to process cases
involving worthless checks:
Provided,
That sums agreed to be
appropriated for such deputy sheriffs or deputy clerks shall be
proportionate to the time such employees devote to worthless
check cases. After payment of such expenses, or after a
determination that such services are not necessary, a county may
appropriate and spend from such fund such sums as shall be
necessary to defray the expenses of providing bailiff and service
of process services by the sheriff, to defray the cost of
acquiring or renting magistrate court offices and providing
utilities and telephones therefor to defray the cost of complying
with section thirty-nine-i herein and to defray the expenses of
such other services which are to be provided to magistrate courts
by the county.
NOTE: The purpose of this bill is to establish civil
liability for worthless checks which allows for damages of triple
the amount owing, but not to exceed five hundred dollars and not
to be less than one hundred dollars. The bill provides an
economic hardship exception and certain defenses. It also
increases service charges on dishonored checks to twenty dollars
per check and also increases court costs to twenty dollars per
check. The bill gives authority to each county to appropriate
and spend money from the worthless check fund for designated
purposes, without prior agreement with the administrator's office
of the West Virginia Supreme Court of Appeals.
§55-8A is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.