ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2285
(By Delegates Stalnaker, Everson, Riggs,
Williams, Willison and Ashley)
[Passed February 13, 1998; in effect ninety days from passage.]
AN ACT to amend and reenact sections thirty-nine-e, thirty-nine-f
and thirty-nine-g, article three, chapter sixty-one of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, all relating to procedures for recovering on
dishonored checks, drafts and orders in magistrate court;
authorizing payees or holders of such checks, drafts or
orders to provide notice to the drawer; permitting the
filing of a complaint in magistrate court for the issuance
of a warrant for the drawer's arrest; providing the form of
the complaint, including information on the bank service
charges imposed on the payee as a result of the dishonored
check, draft or order; requiring the magistrate court to
issue a notice to the drawer of his opportunity to avoid
arrest by making payment to the court; and including bank
service charges incurred by the payee or holder and
magistrate court cost in the amount recoverable after the
complaint is delivered to the magistrate court.
Be it enacted by the Legislature of West Virginia:
That sections thirty-nine-e, thirty-nine-f and thirty-nine- g, article three, chapter sixty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39e. Notice of dishonor by payee; service charge.
The payee or holder of a check, draft or order which has
been dishonored because of insufficient funds or credit may send
notice thereof to the drawer of the check, draft or order. The
payee or holder of any dishonored check may impose a fee of up to
fifteen dollars. This fee may not be imposed or collected after
a complaint for warrant has been delivered to magistrate court.
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 notice
substantially in the form provided herein, other provisions of
law notwithstanding. The form of the notice shall be
substantially as follows:
"You are hereby notified that a check, number
................, issued by you on (date of check), drawn upon
(name of bank), and payable to ..........................., has
been dishonored. Pursuant to West Virginia law, you have ten
days from the date of this notice to tender payment of the full amount of the check plus a fee of $..................... (not to
exceed fifteen dollars) to the undersigned at
........................... You are further notified that in the
event the above amount is timely paid in full you will not be
subject to legal proceedings, civil or criminal.
Dated ....................., 19.....
....................................
(Signed)."
The provisions of this section do not authorize the making
of any other written or oral threats of prosecution to enforce or
enhance the collection or honoring of the dishonored check, draft
or order.
The holder or payee of any check, draft or order shall
relinquish the check, draft or order to the maker upon tender of
the full amount due at any time before a complaint for warrant
has been presented to magistrate court. In the event complaint
for warrant has been presented to magistrate court, payment may
be made only through the court and any holder or payee unlawfully
accepting payment after that time shall be liable for all costs
which may be imposed by the magistrate court in the matter,
including all costs which may have accrued by the time the
magistrate court is notified of the payment.
§61-3-39f. Manner of filing complaint for warrant; form.
Notwithstanding the provisions of section one, article one,
chapter sixty-two of this code, a complaint for warrant for
violations of section thirty-nine-a of this article need not be
made upon oath before a magistrate but may be made upon oath
before any magistrate court clerk or other court officer
authorized to administer oaths or before a notary public in any
county of the state and may be delivered by mail or otherwise to
the magistrate court of the county wherein venue lies.
A complaint for warrant for violations of section thirty- nine-a of this article shall be deemed sufficient if it is in
form substantially as follows:
"State of West Virginia
County of ....................., to wit:
......................................, upon oath complains that:
(a) Within one year past, on the ...... day of ............,
19...., in the county stated above, .............................
("the maker") unlawfully issued and delivered to
........................... a check, draft or order with the
following words and figures:
......................... 19.... No...........
..............................................
(Name of Bank)
Pay to the Order of ..................... $..........
Dollars
For.........................................................
when the maker did not have funds on deposit in or credit with
this bank with which to pay the check, draft or order upon
presentation against the peace and dignity of the State of West
Virginia. The complainant therefore prays a warrant issue and
that the maker be apprehended and held to answer the warrant and
dealt with in relation thereto according to the law.
(b) At the time the check, draft or order was delivered and
before it was accepted there was either on the check or on a
record in the possession of the complainant the following
information regarding the identity of the maker:
(1) Name....................................................
(2) Residence address.......................................
(3) Business address........................................
(4) Mailing address.........................................
(5) Motor vehicle operator's number.........................
(6) Home phone..............................................
(7) Work phone..............................................
(8) Place of employment.....................................
That since the time the check, draft or order was delivered
the complainant has ascertained to the best of his or her
knowledge and belief the following facts concerning the maker:
Full name .......................................................
Home address ....................................................
Home phone no............... Business phone no...................
Place of employment .............................................
Race ............ Sex .............. Height .....................
Date of birth ...................................................
Day Month Year
..................................., Complainant
.................................... ............
Address Phone No.
(c) The complainant's bank or financial institution has
imposed on or collected from the complainant a
service charge in
the amount of $........................ in connection with the
check, draft or order described above.
Taken, subscribed and sworn to before me, this
.............. day of ......................, 19.....
.............................................
.............................................
(Title)
My commission expires the ........ day of
.................., 19....."
The failure to supply information indicated in parts (b) or
(c) of the foregoing complaint for warrant shall not affect the
sufficiency thereof.
§61-3-39g. Complaint; notice of 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 may 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 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
notice has been sent by the magistrate as hereinafter provided.
Proof that the notice was sent by the payee or holder may be
evidenced by presentation of a return receipt indicating that the
notice was mailed to the drawer by certified mail, or, in the
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 the check, draft or order a notice in form
substantially as follows. The magistrate court shall impose any
service charge reflected in the complaint as having been imposed on the payee or holder by the payee's or holder's bank or
financial institution in connection with the check, draft or
order and additional court costs in the amount of ten dollars.
This notice shall be mailed to the drawer by United States mail,
first class and postpaid, at the address provided at the time of
presenting the check, draft or order. Service of this notice is
complete upon mailing. The 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, draft or order in the
amount of ......................... drawn on
.................................................... (name of
bank or financial institution) ................. where you did
not have funds on deposit in or credit with the bank or financial
institution with which to pay the check, draft or order upon
presentation and pray that a warrant issue and that you be
apprehended wherever you may be found by an officer authorized to
make 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 this complaint and avoid
arrest by paying to the magistrate court clerk at
...................... the amount due on the check, draft or
order; service charges imposed on the payee or holder by the
payee's or holder's bank or financial institution in connection
with the check, draft or order in the amount of ..........; and
the costs of this proceeding in the amount of ten dollars on or
before the .......... day of ...................., 19......, at
which time you will be given a receipt with which you can obtain
the check, draft or order from the magistrate court. The
complainant is forbidden by law to accept payment after the
complaint is filed.
Magistrate Court of .................. County
.............................................
Date: .............................."
This 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 the drawer pays the total amount set forth
in the notice to the magistrate court within the ten-day period,
no warrant may 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 the payment is made by mail, the
magistrate court clerk shall immediately mail to the maker of the
check, draft or order the receipt required by this section. In the event the 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 the total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing the check, draft or order with which receipt the
drawer is entitled to receive the dishonored check, draft or
order from the magistrate court holding it. The magistrate court
clerk shall forward the amount of the check, draft or order,
together with any service charge reflected on the complaint as
having been imposed on the payee or holder by the payee's or
holder's bank or financial institution in connection with the
check, draft or order, 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 it 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, draft or order; any service charge
reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution
in connection with the check, draft or order; and the court costs
which would be assessed if the person were found guilty of the
offense charged. These costs shall be imposed in accordance with the provisions of section two, article three, chapter fifty of
this code.
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