Pub. 1 2010 Issue 4

winter 2010 21 known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number. Plaintiff’s attorneys invoke these provisions to allege viola- tions of the WVCCPA when a lender makes several calls to a customer to collect on a debt or when the lender makes repeated automated unanswered calls to a borrower. Cus- tomers are being advised by their legal counsel to use caller I.D. and other technology to track the number of calls and the time of each call. Some plaintiffs’ attorneys provide their clients with a device that tracks the number of calls and the time of day that the calls are made. In addition, a bank customer can obtain a copy of his phone record to substanti- ate the calls. The damages that a customer may be awarded are signifi- cant. As explained below, it is possible for a consumer to be awarded more than $4,000 (as adjusted by the consumer price index) for each telephone call. Damages for Violation of WVCCPA The WVCCPA allows for recovery of multiple civil penalties in a single action. The penalties for violation of the WVCCPA are severe and include payment of statutory damages, attor- neys fees, expenses and costs of litigation, and cancellation of the debt. W.Va. Code § 46A-5-101(1) allows for actual damages not less than $100 and not more than $1000 for each violation of the WVCCPA. Each violation of the WVCCPA creates a single cause of action to recover a single penalty. These penalties are aggregated together when there are multiple violations. In addition, the WVCCPA allows a court to adjust the dam- ages to account for inflation from the time that the WVCCPA became operative in 1974 to the time of the award of damages in an amount equal to the consumer price index. The current consumer price index is multiplied by the damage amount un- der § 46A-1-101(1) to determine the current damages amount. Applying this provision in a case decided in 2009, the court multiplied the damages by a factor of four (the increase in the CPI) to increase the borrower’s damages from $404.13 to $4,081.30 per violation. The WVCCPA also permits a court to award all or a portion of the costs of litigation, including reasonable attorney fees, court costs and fees, to the consumer in any claim brought under the WVCCPA applying to illegal, fraudulent or uncon- scionable conduct or any prohibited debt collection practice. However, if the court determines that a claim is brought in bad faith and for the purposes of harassment, the court may award to the defendant reasonable attorney fees. See, W.Va. Code § 46A-5-104 (2010). The WVCCPA also allows the court to cancel the debt if the debt is not secured by a security interest where the creditor has willfully violated the provisions of the WVCCPA apply- ing to illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice. See, W.Va. Code § 46A- 5-105. This remedy is in addition to any actual damages that the court may award. West Virginia banks should examine their current debt collection practices in light of these recent technological developments. Banks should be particularly careful not to create a pattern of behavior that may be construed as repeti- tious, continuous, or abusive. Liability for violations of the WVCCPA can be substantial, and accordingly, banks should take steps to ensure their debt collection practices do not violate the WVCCPA. Q Should you require more information, please feel free to contact the authors, Sandra M. Murphy at (304) 347-1131 or via e-mail at smurphy @bowlesrice.com , or Amy J. Tawney at (304) 347-1123 or via e-mail at atawney@bowlesrice.com. Ms. Murphy and Ms. Tawney are partners in Bowles Rice McDavid Graff & Love LLP specializing in banking and commercial law. Bowles Rice McDavid Graff & Love LLP is general counsel to the West Virginia Bankers Association. Resourceful. Responsive. Reliable. Do business with someone who thinks like you. www.CBBonline.com 804.239.0452