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one thousand nine hundred thirty-one, as amended, be repealed;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.