H. B. 2377
(By Delegates Ashley and Perdue)
[Introduced January 26, 1999; referred to the
Committee on the Judiciary then Finance.]
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 sixteen, relating
to establishing a civil remedy for drawing and uttering of
worthless checks, drafts, or other written order.
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 sixteen, to read
as follows:
ARTICLE 16. CIVIL REMEDY FOR WORTHLESS CHECK.
§55-16-1. Civil remedy for making, drawing, issuing, uttering or
delivery of worthless check, draft or order.
(a) As used in this section, "check" means a check, draft or
other written order drawn on a bank or depository.
(b) In addition to criminal penalties, a person who
knowingly or with fraudulent intent draws, makes, utters, or
issues and delivers to another a check drawn on a bank or
depository that refuses to honor it because the maker or drawer
does not have sufficient funds on deposit in or credit with the
bank or depository with which to pay the check upon presentation
and who fails to pay the same amount in cash to the payee, within
thirty days following written demand, is liable to the payee for
the amount owing on the check and for damages of the lesser of
five hundred dollars or three times the amount owing on the
check. In an action under this section, the court or jury may
waive all or part of the treble damages upon a finding that the
defendant's failure to satisfy the dishonored check was due to
the defendant's recent discharge from his or her employment,
personal or family illness, or personal or family catastrophic
loss. The making, drawing, uttering or delivery of a check,
draft or order, the payment of which is refused by the drawee
because of lack of funds or credit, shall be prima facie evidence
of the knowledge required to be proven under this subsection.
The written demand shall:
(1) Describe the check and the circumstances of its
dishonor;
(2) Contain a demand for payment and a notice of intent to
file suit for treble damages under this section if payment is not received within thirty days; and
(3) Be mailed by certified mail to the defendant at his or
her last known address.
(c) In an action under item (1), the presiding judge may
award the prevailing party, as part of the court costs payable,
a reasonable attorney's fee to the attorney representing the
prevailing party in the action.
(d) It is an affirmative defense, in addition to other
defenses, to an action under this section if it is found that:
(1) Full satisfaction of the amount of the check was made
before the beginning of the action;
(2) The bank or depository erred in dishonoring the check;
or
(3) The acceptor of the check knew at the time of acceptance
that there were insufficient funds on deposit in the bank or
depository with which to cause the check to be honored.
NOTE: The purpose of this bill is to establish a civil
remedy for the drawing and uttering of worthless checks.
This article is new; therefore, strike-throughs and
underscoring have been omitted.