Pub. 10 2019 Issue 4

www.wvbankers.org 20 West Virginia Banker Nicholas P. Mooney II is a member attorney in Spilman Thomas & Battle’s Charleston, West Virginia office. His primary area of practice is consumer financial services litigation in federal and state courts. He has devoted all of his time for the past 19 years to that practice area. He can be reached at 304.340.3860 or nmooney@ spilmanlaw.com. made to a West Virginia consumer carries with it the implied representation that the collector has taken all steps necessary to be lawfully permitted to collect. They argue that, if the agency has not complied with the WVCAA but nonetheless attempts to collect, every call or letter contains a fraudu- lent, deceptive or misleading misrepresentation, leaving the agency liable under the WVCCPA. They further argue that, since the alleged misrepresentations are the same as to every consumer, a class-action lawsuit can be filed. The consumers do not stop there. They also argue that the credi- tors employing those collectors are derivatively liable for the violations of the WVCCPA. They base those claims on the argument that the WVCCPA provides that an entity meets the definition of a “debt collector” if it is “engaging directly or indi- rectly in debt collection.” 10 They argue that a creditor is engaged “indirectly” in debt collection when it hires a collector and, thus, can be liable for the collector’s violations of the WVCCPA. Collectors who contact West Virginia consumers, and the creditors who retain them, should be aware of the WVCAA’s provisions and the fact that it has been playing an increasing role in consumers’ lawsuits in West Virginia.  1 W. Va. Code §§ 46A-1-101 et seq. 2 W. Va. Code §§ 47-16-1 et seq. 3 W. Va. Code §47-16-2. 4 W. Va. Code § 47-16-4(a). 5 W. Va. Code § 47-16-4(a). 6 W. Va. Code § 47-16-4(b). 7 W. Va. Code § 47-16-4(a). 8 W. Va. Code §§ 46A-5-101 and 5-104. 9 W. Va. Code § 46A-2-127. 10 W. Va. 46A-2-122(d). Continued from page 19