Pub. 2 2011 Issue 2

www.wvbankers.org 6 T his quarter, we are highlighting sec- tions and aspects of the WVCCPA relating to communications made to customers after notice of attorney represen- tation, Caller ID, and mailing of monthly statements. One law that applies to collection of ac- counts is the WVCCPA. When plaintiffs file lawsuits based upon collection acts, they tend to assert claims under sec- tions 2-125, 2-125(d), 2-127(c), 2-127(d), and 2-128(e). Section 2-125 states that no “oppression” or “abuse” may occur during collection—including the constant ringing of a telephone and calls during inconvenient times. 1 Under section 2-127(c), collectors must clearly identify their busi- ness. Under section 2-127(d), collectors cannot make false representations about the “character, extent or amount of a claim against a consumer, or of its status in any legal proceeding.” Although claims under the statute sec- tions listed above and common law claims (for negligence, intentional infliction of emotional distress, and invasion of pri- vacy) are asserted, past experience shows plaintiffs focus their debt collection claims on section 2-128(e). Section 2-128(e) states that collectors cannot communicate “with a consumer whenever it appears that the consumer is represented by an attorney and the attorney’s name and address are known or could be easily ascertained.” There is no requirement that the consumer send written notification to cease collection ef- forts—verbal notice of counsel is sufficient. After getting notice of representation by an attorney (even if it is someone that appears impossible to the collector), the collector cannot communicate directly with the debt- or until it is determined the representation claim is false, counsel “fails to answer cor- respondence, return phone calls or discuss the obligation in question,” or the counsel “consents to direct communication.” 2 Significant in the prohibition against direct communication with the debtor is a lack of specificity as to what “communica- tion” is. Section 2-128 prohibits unfair or unconscionable means to collect a debt. “Communication” is not defined in section 2-128 or anywhere within the WVCCPA. With little to no statutory guidance, a few courts inWest Virginia have ruled that any attempt to communicate with a debtor to collect a debt—whether an actual con- versation with a debtor, an unanswered telephone call, or a written letter—after the debtor has provided attorney representation information pursuant to section 2-128(e) is a statutory violation of that section. These courts have ruled that an attempted call which the debtor does not answer is still a violation if the debtor has Caller ID and could later determine that the collector called. Thus, an attempted call may subject the collector to the same statutory penalty as a completed call in which the collector actually speaks with the represented debtor. Last quarter, we provided an overview of the West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A-1-101 et seq. (“WVCCPA”). Debt Collection Claims Typically Asserted by Plaintiffs Under the WVCCPA By Angela L. Beblo, Esq. and Patrick R. Barry, Esq.