West Virginia Modifies its Consumer Credit and Protection Act

The West Virginia Governor signed into law Senate Bill 563 on April 21, 2017, which modifies the West Virginia Consumer Credit and Protection Act (“WVCCPA”). Modifications of note include: (1) eliminating certain attorneys from the definition of debt collector; (2) requiring notice of attorney representation be sent by certified mail; (3) giving the creditor a right to cure; (4) requiring the debt collector to notify the borrower of debt that is beyond the statute of limitations in all written communications; and (5) implementing provisions that state contents of or omissions from a pleading do not provide the basis for a claim under WVCCPA. These changes are effective July 4, 2017.

First, the WVCCPA will exclude attorneys from the definition of debt collector provided that the attorneys are licensed in West Virginia and not operating a collection agency under the management of a person who is not a licensed attorney.

Next, a debt collector will have three business days, rather than 72 hours, to stop communicating with the consumer once the debt collector has received written notice that the consumer is represented by an attorney. The consumer will have to send the written notice by certified mail, return requested, to the debt collector’s registered agent.

Under the WVCCPA amendments, a consumer will not be able to bring a claim until he or she informs the creditor in writing and by certified mail of the alleged violation. The amendment will provide the creditor with 45 days from receipt to make a cure offer. Then, the consumer will have 20 days from receipt to accept the cure offer, and the creditor will have 20 days from acceptance of the cure offer to “begin effectuating” the cure.

Furthermore, a creditor will have to notify the consumer in all written communications that the debt is beyond the statute of limitations for a legal collection action. On another note, no action to set aside a foreclosure sale under the WVCCPA will be able to be brought more than one year after the foreclosure sale is final.

The WVCCPA will require that all agreements with a balloon payment include certain language in form and substance substantially similar to existing requirements.

Finally, nothing contained in or omitted from a pleading filed in a West Virginia Court will be able to be the basis of a cause of action under the WVCCPA.