COMMITTEE SUBSTITUTE
FOR
H. B. 4069
(By Delegates Tillis, Hunt, Seacrist, Staton,

Ashley, Manuel and Yeager)

(Originating in the House Committee on the Judiciary)
[February 13, 1996]

A BILL to repeal sections thirty-nine-i, thirty-nine-j and thirty-nine-k, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections thirty-nine-e and thirty-nine-g of said article, all relating to crimes and their punishment; crimes against property; worthless checks; and providing for complainants to collect costs incurred and a service charge through the magistrate court.

Be it enacted by the Legislature of West Virginia:
That sections thirty-nine-i, thirty-nine-j and thirty-nine- k, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that sections thirty-nine-e and thirty-nine-g of said article be amended and reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
61-3-39e. Service charge; notice of dishonor for misdemeanor
offenses.
(a) The payee or holder of a ~~any such~~ dishonored check, draft or order may impose a service charge which shall not exceed ~~not to exceed~~ fifteen dollars. ~~No service charge shall be imposed or collected after a complaint for warrant has been delivered to magistrate court.~~ The payee and each holder of the dishonored check, draft or order may collect only one service charge. However, if the payee or a holder has paid other service charges which were imposed by another holder, the payee or holder may also recoup the additional payments as costs. These are the only costs which the payee or a holder may collect from another holder or the drawer.
(b) The payee ~~or holder~~ of a check, draft or order which has been dishonored because of insufficient funds or credit shall ~~may~~ send or cause the court to send a notice ~~thereof~~ of dishonor to the drawer of the check, draft or order. A holder of a dishonored check, draft or order who is not the payee shall send or cause the court to send a notice of dishonor to the previous holders of the dishonored check, draft or order, including the payee. The notice of dishonor shall be sent by certified mail, return receipt requested.
(c) Subsection (b) of this section, which requires the sending of a notice of dishonor, only applies in cases which would constitute misdemeanor offenses under the provisions of sections thirty-nine or thirty-nine-a of this article.
(d) ~~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~~ The notice of dishonor shall be notarized by a notary public who is licensed as a notary public by the state of West Virginia. The notice of dishonor shall be substantially in the following form: ~~substantially in the form provided herein, other provisions of law notwithstanding. The form of such notice shall be substantially as follows:~~
"You are hereby notified that a check [draft or order] which was issued by [name of drawer] on [date of check, draft or order] ~~,number ................, issued by you on (date of check), drawn upon (name of bank), and payable to ...........................,~~ has been dishonored. The dishonored check [draft or order] is numbered ______, was drawn upon [name of bank] , and was payable to [payee] . Pursuant to West Virginia law, you have ten days from the date of this notice to tender to the undersigned payment of the full amount of the dishonored ~~such~~ check [draft or order], costs incurred in the amount of __________, ~~plus~~ and a fifteen dollar service charge. ~~to the undersigned at ...........................~~ You are further notified that if full payment is not made within ten days of the date of this notice, the undersigned is authorized by West Virginia law to file a complaint with the magistrate court seeking a warrant for your arrest. If ~~You are further notified that in the event the above amount is timely paid in full~~ full payment is timely made, you will not be subject to any civil or criminal legal proceedings as a result of this dishonored check [draft or order].~~, civil or criminal~~.
Dated:________________________, 19___
______________________________
[printed name]
______________________________
~~(Signed~~) [signature]."

STATE OF WEST VIRGINIA, COUNTY OF ______________________________, to wit:
The foregoing instrument was taken, subscribed and sworn to or affirmed and acknowledged before me this _________ day of ___________, 19___ by the above-named person.

_______________________________My commission expires on _____________________
Notary Signature
(e) 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 sending a notice of dishonor which is substantially in the same form as is provided in subsection (d) of this section. However, the payee or holder of a dishonored check, draft or order shall not make ~~The provisions of this section shall not authorize the making of~~ any other written or oral threats of prosecution to enforce or enhance the collection or honoring of the ~~said~~ dishonored check, draft or order.
(f) The ~~holder or~~ payee of a ~~any such~~ dishonored check, draft or ~~note~~ order shall relinquish ~~the check, draft or order~~ it to ~~the maker~~ the drawer upon payment to the payee ~~tender~~ of the full amount due, including any costs and service charge which are authorized by subsection (a) of this section, at any time before a complaint for a warrant has been ~~presented to~~ filed with the magistrate court. A holder of a dishonored check, draft or order shall relinquish it to a previous holder, the payee or the drawer who pays the holder the full amount due, including any costs and service charge which are authorized by subsection (a) of this section, at any time before a complaint for a warrant has been filed with the magistrate court. ~~In the event~~ If a complaint for a warrant has been ~~presented to~~ filed with the magistrate court for a misdemeanor violation, payment may be made only through that ~~such~~ court. Any ~~and any holder or~~ payee or holder who ~~unlawfully accepting~~ accepts payment after a complaint for a warrant has been filed for a misdemeanor violation ~~such time~~ shall be liable for all costs and fees which may be imposed by the magistrate court in the matter, including all costs and fees which may have accrued by the time the magistrate court is notified of such payment.
§ 61-3-39g. 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 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.
(a) A payee or holder of a dishonored check, draft or order which would constitute a felony violation of section thirty-nine of this article may refer the matter to a law-enforcement officer or to the prosecuting attorney of the county in which the dishonored check, draft or order was made, drawn, issued, uttered or delivered. A complaint charging a felony violation of section thirty-nine of this article may be filed only by a law- enforcement officer or prosecuting attorney and shall be accompanied by the dishonored check, draft or order.
(b) A payee or a holder of a dishonored check, draft or order which would constitute a misdemeanor violation of section thirty-nine or thirty-nine-a or this article may file a complaint for a warrant for the arrest of the drawer of the dishonored check, draft or order in the magistrate court of the county in which the dishonored check, draft or order was made, drawn, issued, uttered or delivered.
(1) If a payee or holder of a dishonored check, draft or order seeks to file a complaint for an arrest warrant in the magistrate court for a misdemeanor violation of section thirty- nine or thirty-nine-a of this article, the complaint shall be accompanied by the dishonored check, draft or order and by a copy of the notice of dishonor, including a receipt which indicates that the notice of dishonor was mailed to the drawer by certified mail.
(2) If the payee or holder of a dishonored check, draft or order has sent a notice of dishonor, and more than ten days have passed from the date of the notice of dishonor, the magistrate court clerk shall accept the complaint, and a magistrate shall issue a warrant for the arrest of the drawer of the dishonored check, draft or order. After an arrest warrant has been issued, all payments related to the dishonored check, draft or order shall be made to the magistrate court, and the complainant is prohibited from accepting any payment directly from the drawer.
(3) If the dishonored check, draft or order and a copy of the notice of dishonor with the certified mail receipt are not presented with the complaint, or if ten days have not passed since the date of the notice of dishonor, the clerk of the magistrate court shall refuse to accept the complaint. If the complaint is refused because a notice of dishonor has not been sent, the payee or holder of the dishonored check, draft or order may, at his or her option, either send a notice of dishonor to the drawer or request that the magistrate court clerk issue the notice of dishonor. Upon request of the payee or holder of the dishonored check, draft or order, and upon payment of a fee of twenty-five dollars per notice which cannot be recouped from the drawer of the dishonored check, draft or order, the magistrate court clerk shall prepare a notice of dishonor for the signature of the payee or holder in accordance with the provisions of section thirty-nine-e of this article. The magistrate court clerk shall then instruct the payee or holder of the dishonored check, draft or order to mail the notice of dishonor by certified mail, return receipt requested, to the drawer of the dishonored check, draft or order. A notice of dishonor which is prepared by the magistrate court clerk shall be in the form which is prescribed by section thirty-nine-e of this article, and shall not bear any indication that it was prepared by the magistrate court. Under no circumstances shall a notice of dishonor which is prepared by the magistrate court clerk be mailed by the magistrate court clerk to the drawer of a dishonored check, draft or order.
(4) If the total amount of the dishonored check, draft or order, including the costs and service charge which are authorized by subsection (a) of section thirty-nine-e of this article, is not paid within the ten-day period provided by the notice of dishonor, the magistrate court shall then accept the complaint, and a magistrate shall issue a warrant for the arrest of the drawer of the dishonored check, draft or order.
(c) After a complaint has been filed, but prior to the trial of the matter, the drawer of the dishonored check, draft or order may pay the magistrate court the full amount of the dishonored check, draft or order, all costs and service charge which are authorized by subsection (a) of section thirty-nine-e of this article, all fees, and all court costs which would be imposed upon conviction pursuant to section two, article three, chapter fifty of this code. The drawer may pay this amount in cash, certified or cashier's check, or money order, and may pay in person or by mail. However, no cash will be accepted by mail. Upon payment of this full amount by the drawer prior to trial, the complaint shall be dismissed and no criminal penalties shall be imposed.
(d) If a trial of the matter is held in the magistrate court, and the drawer of the dishonored check, draft, or order is convicted of a misdemeanor violation of section thirty-nine or thirty-nine-a of this article, the magistrate court shall order the drawer to pay to the magistrate court the full amount of the dishonored check, draft or order, all costs and service charge which are authorized by subsection (a) of section thirty-nine-e of this article and are substantiated by the evidence, all fees, and all court costs. The drawer may pay this amount in cash, certified or cashier's check, money order or credit card, as provided in section two-a, article three, chapter fifty of this code. The magistrate court may also impose any criminal penalty which is provided by sections thirty-nine or thirty-nine-a of this article.
(e) Upon complete payment of all court-imposed assessments, the dishonored check, draft or order shall be returned to the drawer by the magistrate court.
(f) The magistrate court shall forward to the complainant the amount which is collected, less court costs and fees, along with a description of the dishonored check, draft or order which is sufficient to enable the complainant to identify the transaction involved.
(g) Upon conviction, court costs and fees shall be imposed in accordance with the provisions of section two, article three, chapter fifty of this code. Such court costs and fees which are collected shall be handled in accordance with the law applicable to other criminal proceedings.

NOTE: The purpose of this bill is to require the payee or holder of a worthless check to attempt to collect the amount of the check from the drawer without resorting to filing a complaint with the magistrate court. This only applies to worthless checks which would be misdemeanor offenses under sections thirty-nine and thirty-nine-a of this article. This bill would also allow the payee or holder of a worthless check to collect service charges even after filing a complaint with the magistrate court because the payee or holder would have attempted to collect the worthless check before resorting to the magistrate court. Finally, this bill eliminates three sections of article three, chapter sixty- one, all of which address lists of worthless checks.

Strike-throughs indicate language which would be stricken from the present law, and underscoring indicates new language which would be added.