Notice of Dishonored Check - Civil - Keywords: bad check, bounced check
West Virginia Law Summary
Notice of Dishonored Check
Note:Â Â Â 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.
Code 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 authorized 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, certified mail or regular mail to the defendant at his or her last known address: Provided, That service by regular mail shall be supported by either a post-marked certificate of mailing or a notarized affidavit of service.
(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, article three, chapter sixty-one of this code on the same check.
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.
61-3-39a Making, issuing, etc., worthless checks on a preexisting debt; 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 on a preexisting debt 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 on a preexisting debt, 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 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.
61-3-39b Payment as defense.
Payment of a dishonored check, draft or order, made to the magistrate clerk within ten days after the notice mailed to the defendant pursuant to section thirty-nine-g of this article, constitutes a complete defense or ground for dismissal of charges brought under section thirty-nine or section thirty-nine-a of this article.<br />
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61-3-39c Reason for dishonor; duty of drawee. <br />
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 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:<br />
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(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<br />
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(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<br />
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(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.<br />
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61-3-39d Prima facie evidence of knowledge; identity; penalty for providing false information. <br />
(a) In any prosecution under section thirty-nine 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.<br />
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(b) In any prosecution under section thirty-nine-a of this article, it shall constitute prima facie evidence of the identity of the drawer of a check, draft 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.<br />
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(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.<br />
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61-3-39e Notice of dishonor by payee; service charge.<br />
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 twenty-five dollars a worthless check. 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:<br />
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“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 twenty-five dollars a worthless check) 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.<br />
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Dated ………………….., 20…..<br />
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……………………………<br />
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(Signed).”<br />
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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.<br />
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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.<br />
61-3-39f Manner of filing complaint for warrant; form.<br />
(A) Notwithstanding the provisions of section one, article one, chapter sixty-two of this code, a complaint for warrant for violations of section thirty-nine or 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: Provided, That nothing in this section changes the authority and responsibility of the prosecuting attorney to prosecute any person or persons for violations of section thirty-nine or section thirty-nine-a of this article.<br />
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(B) 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:<br />
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“State of West Virginia<br />
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County of …………………, to wit:<br />
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……………………………….., upon oath complains that:<br />
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(a) Within one year past, on the …… day of …………, 20…., in the county stated above, ……………………….. (“the maker”) unlawfully issued and delivered to ……………………… a check, draft or order with the following words and figures:<br />
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…………………… 20 …. No………..<br />
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……………………………………….<br />
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(Name of Bank)<br />
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Pay to the Order of ………………… $………. Dollars<br />
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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.<br />
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(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:<br />
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(1) Name…………………………………………….<br />
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(2) Residence address…………………………………<br />
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(3) Business address………………………………….<br />
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(4) Mailing address…………………………………..<br />
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(5) Motor vehicle operator’s number…………………….<br />
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(6) Home phone……………………………………….<br />
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(7) Work phone……………………………………….<br />
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(8) Place of employment……………………………….<br />
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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:<br />
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Full name ……………………………………………….<br />
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Home address …………………………………………….<br />
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Home phone no…………… Business phone no……………….<br />
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Place of employment ………………………………………<br />
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Race ………… Sex ………….. Height …………………<br />
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Date of birth ……………………………………………<br />
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DayMonthYear<br />
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…………………………….., Complainant<br />
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………………………………………….<br />
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AddressPhone No.<br />
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(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.<br />
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Taken, subscribed and sworn to before me, this ………….. day of …………………., 20…..<br />
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………………………………………<br />
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………………………………………<br />
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(Title)<br />
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My commission expires the …….. day of ………………, 20…..”<br />
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(C) The failure to supply information indicated in parts (b) or (c) of the foregoing complaint for warrant shall not affect the sufficiency of the complaint.
