Pub. 2 2011 Issue 3

www.wvbankers.org 16 debt collector has an obligation to attempt to communicate with the alleged attorney before resuming communications directed at the customer. 9 Fifth, another defense is found in the Unfair and Deceptive Acts or Practices (“UDAP”) provisions of Article 6 of the WVCCPA that requires the consumer to follow statutory procedure before a claim will be considered valid. The UDAP provisions contain an express statutory prerequisite to a con- sumer bringing a private cause of action. A plaintiff may not commence a UDAP claim without first sending the intended defendant notice of the alleged violations claimed and giving the defendant at least 20 days from receipt of the notice to cure such violations. 10 If the statutory notice was not given to the defendant, there is not an actionable cause of action under the UDAP provisions against that defendant. 11 In addition to the defenses identified in the WVCCPA, com- mon law defenses (such as laches, standing, comparative negligence, and waiver) also are available. While the WVCCPA may feel like it applies “strict liability” on creditors for violations, creditors should rest assured that they do have a number of the defenses that they can assert under the WVCCPA to shield from liability. Next issue, we will focus on the damages that a person may be entitled to under the Act. Q 1 Id . at 5-101(1). 2 Id . 3 Id . at 5-101(7). 4 Id . at 5-101(8). This defense in the WVCCPA contains a significant difference from the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq . (“FDCPA”). Under the FDCPA, the defense is available if the violation is unintentional and the result of a bona fide error of fact notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation or error. Under the WVCCPA, the defense is phrased in the disjunctive, thereby creating two defenses (the violation was unintentional or the result of a bona fide error of fact notwithstanding the maintenance of procedures). 5 Id . 6 Syl. pt. 1, Casillas v. Tuscarora Land Co. , 186 W. Va. 391, 391-92, 412 S.E. 2d 792, 792-93 (1991). 7 W. Va. Code § 46A-2-102(12); see Mem. Op. and Order, Payne v. Green Tree Servicing LLC , 2:05-cv-00293 (S.D.W. Va. March 7, 2006). 8 W. Va. Code § 46A-2-122(b). 9 Id . at 2-128(e). 10 Id . at 6-106(b). However, one judge in Raleigh County, West Virginia, recently ruled that a plaintiff may commence litigation without first sending the required notice and that the statute can be satisfied by merely staying the litigation for 20 days. 11 Perry v. Tri-State Chrysler Jeep, LLC , No. 3:08-0104, 2008 WL 1780938, at *4 (S.D.W. Va. April 16, 2008). New Name. Familiar Service. Converge is CenterState Bank’s innovative web-based online banking platform and is the access point for our Clearing/Cash Management Solution. Converge services include: For more information regarding Converge, please contact your Business Development Officer. 120 Club Oaks Court, Suite 150 Winston-Salem, NC 27104 336.659.7100 y 877.604.8282 www.csbcorrespondent.com Account Information Domestic Wires OFAC Email Notification ACH Services FRB Services International Services Q WVCCPA — continued from page 6 AngelaL.BebloandPatrickR.Barryareassociates intheCon- sumer Finance Litigation Group at Spilman Thomas & Battle, PLLC. Ms. Beblo and Mr. Barry routinely represent, counsel, anddefendfinancial institutionsandothercreditors infederal and state courts involving alleged violations of the WVCCPA andfederalconsumerprotectionlawsinconnectionwithhome loanmortgages,unsecuredloans,automobilefinancing,credit card accounts, and consumer credit sales. You may contact Ms. Beblo at 304.340.3852, abeblo@spilmanlaw.com, or Mr. Barry at 304.340.3884, pbarry@spilmanlaw.com .