H. B. 2285
(By Delegates Stalnaker, Everson, Riggs,
Williams, Willison and Ashley)
[Introduced January 14, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections thirty-nine-e and thirty- nine-g, article three, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to providing recovery of bank service charges after
a warrant is filed in magistrate court.
Be it enacted by the Legislature of West Virginia:
That sections thirty-nine-e 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 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
such dishonored check may impose a service
charge not to exceed fifteen dollars.
Except as provided in
section thirty-nine-g of this article, no service charge
shall
may be imposed or collected after a complaint for warrant has
been delivered to magistrate court:
Provided, That the
magistrate court shall add to any judgment entered against the
defendant an amount equal to any service charges imposed or
collected which would serve to reimburse the payee or
holder-plaintiff for any charges incurred from his or her
institution of banking which were imposed or collected after a
complaint for warrant was 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
such 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
such the check plus a fifteen dollar service charge 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
shall may not authorize the
making of any other written or oral threats of prosecution to
enforce or enhance the collection or honoring of
said the
dishonored check, draft or order.
The holder or payee of any
such check, draft or note 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
such the court and any holder or payee
unlawfully accepting payment after
such this time shall be liable
for all costs which may be imposed by magistrate court in the
matter, including all costs which may have accrued by the time
the magistrate court is notified of
such the payment.
§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 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 the 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 the check, draft or order a notice in form substantially as follows and shall impose
any service charges
incurred by the holder or payee and additional court costs in the
amount of ten dollars.
Such The 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 the notice shall be complete upon
mailing.
Such 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 lending institution) ................. where you did not
have funds on deposit in or credit with said bank
or lending
institution 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 this complaint and avoid
arrest by paying to the magistrate court clerk at
...................... the amount due on
said the check
, service
charges incurred by the payee or holder of the check, draft or
order in the amount of .......... and the costs of this
proceeding in the amount of ............... on or before
the
said .......... day of ...................., 19......, at which
time you will be given a receipt with which you can obtain
said
the check from the magistrate named below. The complainant is
forbidden by law to accept payment.
Magistrate Court of .................. County
.............................................
Date: .............................."
Such The 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 the drawer pays the amount
of the check plus
service charges incurred by the payee or holder
thereof and 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 the
payment is made by mail, the magistrate court clerk shall forthwith mail to the maker of
such the check the receipt
hereinbelow required. In the event
such 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
such the total amount the
magistrate court clerk shall issue to the drawer a receipt
sufficiently describing
such the check,
draft or order 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,
together with the amount
of any bank or lending institution service charge incurred by the
holder or payee as a result of the dishonored 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
such the 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,
draft or order and bank service charge, if any, plus
such court costs as would be assessed if
such the
person were found guilty of the offense charged.
Such The costs
shall be imposed in accordance with the provisions of section
two, article three, chapter fifty of this code.
NOTE: The purpose of this bill is to allow the payee or
holder of a dishonored check to recoup from the maker any fees
imposed by the payee or holder's bank after the case has gone to
magistrate court.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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