Complaint for Warrant for Dishonored Check - Bad Bounced Check - Criminal
West Virginia Law Summary
Notice of Dishonored Check
Note: This summary is not intended to be an all
inclusive summary of the law of bad checks, but does contain basic and
other provisions.
Civil Provisions
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
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), 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 [§§
61-3-39a through 61-3-39h] of article three, chapter sixty-one of this
code on the same check.
Criminal Provisions
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39. Obtaining property in return for worthless check;
penalty.
It is unlawful for any person, firm or corporation to obtain any
money, services, goods or other property or thing of value by means of
a check, draft or order for the payment of money or its equivalent upon
any bank or other depository, knowing at the time of the making, drawing,
issuing, uttering or delivering of the check, draft or order that there
is not sufficient funds on deposit in or credit with such bank or other
depository with which to pay the same upon presentation. The making,
drawing, issuing, uttering or delivery of any such check, draft or order,
for or on behalf of any corporation, or its name, by any officer or agent
of such corporation, shall subject such officer or agent to the penalties
of this section to the same extent as though such check, draft or order
was his own personal act, when such agent or officer knows that such corporation
does not have sufficient funds on deposit in or credit with such bank or
depository from which such check, draft or order can legally be paid upon
presentment.
This section shall not apply to any such check, draft or order when
the payee or holder knows or has been expressly notified prior to the acceptance
of same or has reason to believe that the drawer did not have on deposit
or to his credit with the drawee sufficient funds to insure payment as
aforesaid, nor shall this section apply to any postdated check, draft or
order.
No prosecution shall be confined to the provisions of this section
by virtue of the fact that worthless checks, drafts or orders may be employed
in the commission of some other criminal act.
A person who violates the provisions of this section, if the amount
of the check, draft or order is less than five hundred dollars, is guilty
of a misdemeanor, and, upon conviction thereof, the person shall be fined
not more than two hundred dollars, or confined in jail not more than six
months, or both. A person who violates the provisions of this section,
if the amount of the check, draft or order is five hundred dollars or more,
is guilty of a felony, and, upon conviction thereof, the person shall be
fined not more than five hundred dollars, or imprisoned in the penitentiary
not less than one year nor more than ten years, or both.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39a. Making, issuing, etc., worthless checks; penalty.
(a) It is unlawful for any person, firm or corporation
to make, draw, issue, utter or deliver any check, draft or order for the
payment of money or its equivalent upon any bank or other depository, knowing
or having reason to know there is not sufficient funds on deposit in or
credit with the bank or other depository with which to pay the check, draft
or order upon presentation. The making, drawing, issuing, uttering or delivering
of any check, draft or order, for or on behalf of any corporation, or its
name, by any officer or agent of the corporation, shall subject the officer
or agent to the penalty of this section to the same extent as though the
check, draft or order was his or her own personal act.
(b) This section shall not apply to any such check,
draft or order when the payee or holder knows or has been expressly notified
prior to the acceptance of same or has reason to believe that the drawer
did not have on deposit or to his or her credit with the drawee sufficient
funds to insure payment as aforesaid, nor shall this section apply to any
postdated check, draft or order. This section shall not apply when the
insufficiency of funds or credit is caused by any adjustment to the drawer's
account by the bank or other depository without notice to the drawer or
is caused by the dishonoring of any check, draft or order deposited in
the account unless there is knowledge or reason to believe that the check,
draft or order would be dishonored.
(c) Any person violating the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof, shall
be fined not more than two hundred dollars; and upon a third or subsequent
conviction thereof, shall be fined not more than two hundred dollars, or
confined in the county or regional jail not more than ten days, or both.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39b. Payment as defense.
Payment of a dishonored check, draft or order shall not constitute
a defense or ground for dismissal of charges brought under section thirty-nine
[§ 61-3-39] of this article. Payment of a dishonored check, including
any authorized charges or costs, shall constitute a defense or grounds
for dismissal of charges brought under section thirty-nine-a [§ 61-3-39a]
of this article.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39c. Reason for dishonor; duty of drawee.
It shall be the duty of the drawee of any check, draft or order,
before refusing to pay the same to the holder thereof upon presentation,
to cause to be written, printed or stamped in plain language thereon or
attached thereto, the reason for drawee's dishonor or refusal to pay same.
In all prosecutions under section thirty-nine or thirty-nine-a [§
61-3-39 or 61-3-39a] of this article, the introduction in evidence of any
unpaid and dishonored check, draft or other written order, having the drawee's
refusal to pay stamped or written thereon, or attached thereto, with the
reason therefor as aforesaid:
(a) Shall be prima facie evidence of
the making or uttering of said check, draft or other written order, and
the due presentation to the drawee for payment and the dishonor thereof,
and that the same was properly dishonored for the reasons written, stamped
or attached by the drawee on such dishonored checks, drafts or orders;
and
(b) Shall be prima facie evidence, as against
the maker or drawer thereof, of the withdrawing from deposit with the drawee
named in the check, draft or other written order, of the funds on deposit
with such drawee necessary to insure payment of said check, draft or other
written order upon presentation within a reasonable time after negotiation;
and
(c) Shall be prima facie evidence of the drawing,
making, uttering or delivering of a check, draft or written order with
the knowledge of insufficient funds in or credit with such drawee.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39d. Prima facie evidence of knowledge; identity;
penalty for providing false information.
(a) In any prosecution under section thirty-nine
[§ 61-3-39] of this article, the making, drawing, uttering or delivery
of a check, draft or order, the payment of which is refused by the drawee
because of lack of funds or credit, shall be prima facie evidence that
the drawer has knowledge at the time of making, drawing, issuing, uttering
or delivering such check, draft or order that there is not sufficient funds
or credit to pay the same, unless the check, draft or order is paid along
with any charges or costs authorized by this article.
(b) In any prosecution under section thirty-nine-a
[§ 61-3-39a] of this article, it shall constitute prima facie evidence
of the identity of the drawer of a check, draft or order if at the time
of acceptance of such check, draft or order there is obtained the following
information: Name and residence, business or mailing address and either
a valid motor vehicle operator's number or the drawer's home or work phone
number or place of employment. Such information may be recorded on the
check, draft or order itself or may be retained on file by the payee and
referred to on the check, draft or order by identifying number or other
similar means.
(c) Any person who shall provide false information
when information is requested prior to accepting a check, draft or order
either at the time such check, draft or order is presented or for the purpose
of obtaining a check cashing identification card or similar check cashing
privilege shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than two hundred dollars, or imprisoned not more
than thirty days, or both fined and imprisoned.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
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:
... [ see, USLF
form WV-401N ] ...
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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§ 61-3-39f. Manner of filing complaint for warrant; form.
Notwithstanding the provisions of section one [§ 62-1-1],
article one, chapter sixty-two of this code, a complaint for warrant for
violations of section thirty-nine-a [§ 61-3-39a] 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:
... [ see, USLF form WV-402N ] ...
The failure to supply information indicated in parts (b) or (c)
of the foregoing complaint for warrant shall not affect the sufficiency
thereof.
