COMMITTEE SUBSTITUTE
FOR
H. B. 2377
(By Delegates Ashley and Perdue)
(Originating in the House Committee on the Judiciary)
[March 1, 2000]
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; 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) 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) knowingly 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 face amount of the check, less any money received by
the payee in partial payment of the debt of the check;
(2) Damages of five hundred dollars or the face amount of
the check, whichever is less; and
(3) Reasonable costs incurred in filing the action.
(d) In an action under this section, the court or jury may
waive all or part of the damages or fees allowed by subdivision
(2) 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 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 delivered by personal service or by certified mail to
the defendant at his or her last known address.
(f) 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; or
(2) The bank or depository erred in dishonoring the check.
(g) 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.
This article is new; therefore, strike-throughs and
underscoring have been omitted.