COMMITTEE SUBSTITUTE
FOR
H. B. 2285
(By Delegates Stalnaker, Everson, Riggs,
Williams, Willison and Ashley)
(Originating in the Committee on the Judiciary)
[January 22, 1998]
A BILL 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
such dishonored check may impose a
service
charge not to exceed fee of fifteen dollars.
No service charge
This fifteen-dollar fee shall
not be imposed or collected after
a complaint for warrant has been delivered to magistrate court:
Provided, That after a complaint for warrant is delivered to
magistrate court, the payee or holder may recover the bank
service charge 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. 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 fee
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 do 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 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
such the court and any holder or
payee unlawfully accepting payment after
such 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
such 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 aforesaid county stated above,
............................. ("the maker") did
(maker)
unlawfully issue and deliver unto issued and delivered to
........................... his certain check of the words and
figures as follows a check, draft or note with the following
words and figures:
......................... 19.... No...........
..............................................
(Name of Bank)
Pay to the Order of ..................... $..........
Dollars
For.........................................................
when he the said ................................... the maker
did not have funds on deposit in and or credit with said this
bank with which to pay same the check, draft or order upon
presentation against the peace and dignity of the State of West
Virginia. and he the said ................ The complainant
therefore prays a warrant issue and that said
............................ may be
(maker)
the maker be apprehended and held to answer the said warrant and
dealt with in relation thereto according to the law.
(b) At the time said the check, draft or order was delivered
and before the same it was accepted there was either on the check
or on a card record in the possession of the complainant the
following information regarding the identity of aforesaid 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 of
said check:
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 part (b)
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 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 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 such the check, draft or order a notice in form
substantially as follows and. 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.
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 is 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 financial institution) ................. where you did
not have funds on deposit in or credit with said bank or financial institution with which to pay same 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 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, 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 said the .......... day of
...................., 19......, at which time you will be given
a receipt with which you can obtain said the check, draft or
order from the magistrate named below court. The complainant is
forbidden by law to accept payment after the complaint is filed.
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 the
magistrate court. In the event such the drawer pays the amount of the check plus court costs total amount set forth in the
notice 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, draft or order 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 court holding the
check, draft or order it. 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, 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 such check, draft or order 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; plus such and the
court costs as which 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 drawer any fees
imposed by the payee or holder's bank. The payee or holder would
only be permitted to recover the bank service charge after he or
she files a complaint for warrant with the 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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