Signed into law March 31, 2015, the new state code clarifies the West Virginia Consumer Credit and Protection Act, §46A-1-101, et seq., by bringing the West Virginia code into line with language of the FDCPA.
The following points paraphrase the highlights of the reformed legislation and cite to the relevant sections of the code:
§46A-2-125. Oppression and abuse, (b) declares unanswered telephone calls will not be treated the same as calls that result in an actual conversation. Pursuant to the revised code, a debt collector may not engage a person in telephone conversation without disclosing the collector’s identity, and never with intent to annoy, harass or threaten any person at the called number. Previously, the requirement applied to the placement of telephone calls, which was interpreted to include any unanswered calls to consumers. Therefore, unanswered calls no longer trigger disclosure requirements and only calls resulting in conversations will be subject to claims that the collector intentionally harassed the consumer.
§46A-2-125. Oppression and abuse, (d) declares it a violation to call any person more than 30 times per week or engage any person in telephone conversation more than 10 times per week.
§46A-2-128. Unfair or unconscionable means, (e) defines what is proper notice to the collector that a consumer is represented by an attorney. Pursuant to the law, the collector has a 72-hour grace period after receiving written notice of attorney representation before contacting the consumer will constitute a violation. Notice to the collector must be in writing (on paper or electronically), from the consumer or the attorney, stating that the consumer is represented by an attorney specifically regarding the subject debt. The notice must clearly state the attorney’s name, address and telephone number and be sent to the debt collector’s registered agent, identified by the debt collector at the office of the West Virginia Secretary of State or, if not registered with the West Virginia Secretary of State, then to the debt collector’s principal place of business. The collector’s regular account statements and other notices required to be provided to the consumer shall not constitute prohibited communications under this section.
This subsection also states that the collector is not prohibited from communicating with the consumer if the attorney consents to the collector contacting the consumer directly, or if the attorney fails to answer the collector’s attempts to discuss the debt. However, the code does not define how long the collector must give the attorney to respond.
§46A-3-112. Delinquency charges on precomputed consumer credit sales or consumer loans, (1) doubles the delinquency charges permitted on precomputed consumer credit sales or consumer loans not paid in full within 10 days after its scheduled due date. The new law allows the greater of (a) or (b):
(a) 5% of the unpaid amount of the installment, not to exceed $30 (formerly $15); or
(b) an amount equal to the deferral charge permitted to defer the unpaid amount of the installment for the period that it is delinquent.
§46A-5-101. Effect of violations on rights of parties; limitation of actions, (1) clarifies that a consumer may only recover up to $1,000 in additional damages per violation, not to exceed either $175,000 or the total alleged outstanding indebtedness. The limitations period applies to all actions filed on or after September 1, 2015.
§46A-5-101. Effect of violations on rights of parties; limitation of actions, (1) redefines the statute of limitations in that no action filed on or after September 1, 2015 can be brought more than four years after the violation occurred. Previously, the limit was one year after the due date of the last scheduled payment under the credit agreement.
§46A-5-107. Venue, eliminates venue shopping by requiring consumers to bring civil action either in the circuit court of the county in which the plaintiff legally resides at the time of the civil action, last resided in the state of West Virginia, or where the creditor or debt collector has its principal place of business.
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