On Tuesday, March 31, 2015, Governor Tomblin signed into law Senate Bill No. 542 amending several sections of the West Virginia Consumer Credit Protection Act (WVCCPA). The bill will be effective on June 12, 2015, however, certain provisions of the bill become applicable only to actions filed after September 1, 2015. The amendments will have a significant impact on claims that are frequently litigated in West Virginia.
The amendments contain several dramatic revisions to WVCCPA provisions that are frequently the subject of litigation in West Virginia:
- The bill specifies that “calling any person more than thirty times per week or engaging any person in telephone conversation more than ten times per week” is a violation of § 46A-2-125. Further, § 46A-2-125 now identifies 8 a.m. through 9 p.m. as convenient times for communicating with consumers.
- The bill amends § 46A-2-128(b) to allow a debt collector to seek affirmation from a consumer that the consumer has declared bankruptcy.
- The bill provides that notice of attorney representation must be written (paper or electronically) and must be “sent to the debt collector’s registered agent . . . or, if not registered with the West Virginia Secretary of State, then to debt collector’s principal place of business.”
- The bill increases the late fee cap from $15 to $30 per month.
- The bill clarifies that the statute of limitation period is four (4) years from the date of the violation “arising from consumer credit sales, consumer leases, or consumer loans, or from sales a defined in article six of this chapter” (effective for actions filed after September 1, 2015).
- The bill sets the statutory penalty for a single violation at $1000, with an overall cap at the greater of $175,000 or the total outstanding indebtedness. In a class action, each class member is permitted to recover the statutory maximum of $1,000 per violation or the greater of $175,000 or the total outstanding indebtedness.
- The bill provides that a creditor is not liable for penalties under §§ 46A-5-101(1) and (4) if the creditor, prior to an action being commenced, “notifies the person concerned of the error and corrects the error: (a) within fifteen days if the error affects no more than two persons; or (b) within sixty days if the error affects more than two persons.”
- The bill adds § 46A-5-107, Venue, which provides that proper venue for a WVCCPA claim is in the circuit court of the county where the borrower resides or the county where the borrower last resided in West Virginia.
These amendments represent significant changes to the WVCCPA. Please do not hesitate to contact John Lynch, David Anthony, Jason Manning, or Kyle Deak if you have questions or would like additional information on compliance with these amendments and their anticipated effect on litigation in West Virginia. The Financial Servicing Litigation group at Troutman Sanders has handled hundreds of contested matters in West Virginia, including individual and class action cases, arbitrations, including through appeal to the Fourth Circuit.