COMMITTEE SUBSTITUTE
FOR
H. B. 2377
(By Delegates Ashley and Perdue)
(Originating in the Committee on the Judiciary)
[February 26, 1999]
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, making, uttering,
issuing or delivery of worthless checks, drafts, or other
written orders; providing for the recovery of damages and
attorney fees; requiring a written demand; establishing
affirmative defenses; and limiting criminal prosecutions.
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 draft or other
written order payable on demand and drawn on a bank or depository.
(b) If the maker or drawer of a check (1) knowingly 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 with which to pay the check
on deposit in or credit with the bank or depository upon
presentation and (2) fails to pay the amount of the check in cash
to the payee, within thirty days following written demand, the
payee has a cause of action against the drawer or maker.
(c) In an action under this section, the payee may be awarded:
(1) The amount owing on the check;
(2) Damages of five hundred dollars or three times the amount owing on the check, whichever is less; and
(3) Reasonable attorney fees.
(d) In an action under this section, the court or jury may
waive all or part of the damages or fees allowed by subdivisions
(2) and (3) of subsection (c) of this section 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.
(e) The making, drawing, uttering, issuing or delivery of a check, the payment of which is refused by the drawee because of
lack of funds or credit, shall be prima facie evidence of the
making, drawing, uttering, issuing, or delivery of a check with the
knowledge of insufficient funds in or credit with the drawee.
(f) The written demand required in subsection (a) of this
section 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 damages under this section if payment is not received
within thirty days; and
(3) Be mailed to the defendant at his or her last known
address by certified mail.
(g) It is an affirmative defense to any claim under this
section 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 to satisfy the obligation.
(h) No action may be brought pursuant to both this section and
sections thirty-nine-a through thirty-nine-h of article three of
chapter sixty-one of this code on the same check.