Pub. 4 2013 Issue 1

www.wvbankers.org 12 Sometimes banks find themselves dealing with delinquent borrowers 2 who are difficult to reach or who cannot be located. Both the West Virginia Consumer Credit and Protection Act (“WVCCPA”) and the Fair Debt Collection Practices Act (“FDCPA”) 3 permit banks to contact a borrower as long as the banks comply with the limitations of these Acts. W hile the FDCPA also permits banks to contact third parties in limited circumstances, the VCCPA does not expressly address such contact. However, recent lower court decisions in West Virginia have discussed contact with third parties when seeking borrower location in- formation. The following is intended to provide banks with guidelines for contacting borrowers and third parties in order to avoid potential liability. Procedural Safeguards Regarding Contacting Borrowers First, a bank should set the caller identification for any number the bank may use to contact a borrower (as well as a third party) to read “unavailable.” The bank should not set an incor- rect or misleading name to appear on the caller identification. Allowing the bank’s name to appear on caller identification could potentially be Debt Collection Calls in West Virginia By J. Mark Adkins and Julia A. Chincheck, Bowles Rice LLP 1 considered inappropriate publication of the borrower’s debt. Next, a bank should not ask a borrower to consent at the onset of the transac- tion to allow the bank to contact a third party in the event of default. West Vir- ginia law explicitly prohibits a borrower from waiving rights provided under the WVCCPA. Telephone Calls to the Borrower At the Borrower’s Home When contacting the borrower at home, the bank should only provide informa- tion directly to the borrower or his/ her spouse; information may also be provided to the parents of a minor child who is a borrower. Do not provide any information to girlfriends, boyfriends, parents, grandparents, children, aunts/ uncles, etc., of the borrower. 4 When leaving a message on a home phone or with a person who answers the phone and is not the borrower or the bor- rower’s spouse, only state the following: • Your name (i.e., John Doe) • Your telephone number • You are requesting a return call • The subject of the call is personal Telephone Calls to a Borrower’s Personal Mobile Phone It is an unsettled area of law how much information a bank may leave on a bor- rower’s cell phone voicemail; therefore, the best practice is to provide only the information outlined above for calling the borrower’s home. Telephone Calls to a Borrower At His or Her Workplace West Virginia law does not expressly address contact with the borrower at his or her place of work. However, if you choose to contact the borrower at work, do not call unless you are certain that the borrower can take the call in a private area. If the borrower Q Debt Collection — continued on page 16