Pub. 2 2011 Issue 3

www.wvbankers.org 6 L ast quarter we focused on claims that can be asserted under the debt collec- tion provisions of the West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A-1-101 et seq . (the “WVC- CPA”). This article will focus on the basic defenses available to creditors under the WVCCPA. Despite the “strict li- ability” feel to the claims consumers may assert under the WVCCPA, the defenses available to creditors may enable a credi- tor to avoid any liability for technically violating a section of the WVCCPA. First, there is a limited time period within which claims may be brought un- der the WVCCPA. For cases related to revolving charge accounts or revolving loan accounts, no action may be brought more than four years after the alleged violation occurred. 1 For cases involv- ing consumer credit sales or consumer loans not made pursuant to a revolving account, no action may be brought more than one year after the due date of the last scheduled payment. 2 Thus, a court will not hear a case for claims related to violations that occurred outside of the applicable one and four year periods. Second, a defense exists if the creditor has timely remediated a violation or if the creditor’s violation was erroneous. If (1) the violation is discovered and corrected within 15 days, and (2) the consumer has not commenced a civil ac- tion or sent a cure demand, the creditor may not be held liable under the WVCC- PA. 3 Furthermore, there is no liability if a creditor can establish that the violation was unintentional or in error. 4 A viola- tion could be found to be unintentional or in error if the violation occurred as a result of the creditor’s adherence to its procedures that have been adapted to avoid that violation. 5 It should be noted, however, that these defenses are not available to a creditor that has been sued in a common law action and not a specific action under the WVCCPA. 6 Third, a defense also exists if the person does not meet the definition of a “consumer” under the WVCCPA. A “consumer” is the individual who owes, or who is alleged to owe, the debt at issue. 7 Further, the WVCCPA is only available to an individual who incurred indebtedness through the purchase of items that were primarily for personal, household, or family. 8 Fourth, defenses are available for each particular claim under the WVC- CPA’s debt collection provisions if the plaintiff fails to meet all of the neces- sary requirements of that particular section. For instance, while section 2-128(e) prohibits communication with a consumer after attorney notifica- tion is given, the notification must provide either (a) the attorney’s name or address to be valid or (b) the at- torney’s name and address are “easily ascertainable.” There is no guidance regarding what information makes an attorney’s name and address “reason- ably ascertainable” but courts have found that if a customer provides in- formation relating to an attorney, the Defenses, Damages, and Attorney’s Fees and Costs Under the WVCCPA By Angela L. Beblo and Patrick R. Barry, Spilman Thomas & Battle, PLLC Q WVCCPA — continued on page 16