Pub. 4 2013 Issue 1

www.wvbankers.org 16 cannot speak in private, ask the borrower to either provide you with a personal telephone number you may call later, or return your call at his/her convenience. A bank should not speak to the borrower’s co-workers or employers about the debt. If your call reaches a third party at the borrower’s workplace, 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 Made Directly to a Third Party As noted above, West Virginia law does not expressly address this type of contact. However, in an August, 2012 decision, the Circuit Court of Raleigh County expressly found that a “creditor has a right to engage in the procedure generically re- ferred to in the collection industry as ‘skip tracing’ if an alleged debtor has in fact ‘skipped,’ disappeared, moved, relocated, or attempted to abscond with or conceal secured property.” Notably, abuse of this practice can lead to violations of the WVCCPA. This decision has not been reviewed by the West Virginia Supreme Court of Appeals and is, therefore, not bind- ing on courts outside of Raleigh County. A bank should not contact a third party, including relatives, neighbors, friends, or co-workers of a borrower, if it has valid information about the borrower’s location, such as a phone number or an address, and the reasonable belief that the bor- rower is receiving the telephone messages or mail. This is a grey area of the law, so proceed cautiously. If you choose to contact a third party to obtain information about the borrower’s location, do not state that you are collect- ing a debt or provide the name of your bank. If the third party requests information about the call, federal law and interpre- tive cases require disclosure of the following information: • Your name (i.e., John Doe) • A telephone number where you can be reached • You are confirming/correcting location information • The call is personal The federal caselaw suggests that if the third party does not know the person or refuses to assist, the call should be ended and that third party should not be called again. This article cannot address every situation a bank may face when attempting to contact or locate a borrower, so banks should always err on the side of caution. Moreover, this area of law is fluid and there are civil actions addressing these issues pending throughout West Virginia courts. Banks should peri- odically consult legal counsel to determine if changes in the law necessitate changes to their debt collection practices. Q 1 The authors would like to thank Brittany Vascik, an associate at Bowles Rice LLP, in the Litigation Group, for her invaluable assistance on this article. 2 The term “borrower” as used throughout this article refers only to a natural person who incur a consumer loan. 3 Note that banks seeking to collect their own debt are not subject to the FDCPA. 4 An exception under West Virginia law exists for a relative who lives with the borrower; however it is extremely narrow and difficult to satisfy. 5 See Figgatt v. Green Tree Servicing, LLC , No. 10-C-930 (B), at 4 (Circuit Court of Raleigh County, West Virginia August 23, 2012). See also State of West Virginia v. CashCall, Inc., et al., No. 08-C-1964 (Circuit Court of Kanawha County, West Virginia September 10, 2012). Q Debt Collection — continued from page 12 Resourceful. Responsive. Reliable. Do business with someone who thinks like you. www.CBBonline.com 804.239.0452 Mr. Adkins andMs. Chincheck are partners with Bowles Rice LLP. Bowles Rice LLP is general counsel to the West Virginia Bankers Association. Should you require more information, please feel free to contact Mr. Adkins at (304) 347-1768 or via e-mail at madkins@bowlesrice.com. Ms. Chincheckmay be reached at (304) 347-1713 or via e-mail at jchincheck@ bowlesrice.com. The authors present thesematerials with the understanding that the infor- mationprovided isnot legaladvice. Duetotherapidlychangingnatureof the law, information contained in this publication may become outdated. Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.