Pub. 6 2015 Issue 2

www.wvbankers.org 10 West Virginia Banker P erhaps most significant are the amendments to the statutory pro- vision prohibiting contact with a consumer after receiving notice that the consumer is represented by counsel. This section – § 46A-2-128(e) – has been the source of innumerable lawsuits in the state. The amended statute appears to be an attempt to reign in some of this liti- gation by providing more certainty as to what is required for notice of represen- tation and when, after notice, a violation occurs. Currently, the statute simply states that it shall be a violation to 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.” In contrast, the amended statute speci- fies requirements for notice. Notice that the consumer is represented by counsel, specifically with regard to the subject debt, must be given in writing by the consum- er or his attorney, to be delivered by paper or electronic means. The Notice must clearly state the attorney’s name, address and telephone number. It must be sent to the debt collector’s registered agent, or if no agent is registered with the Office of the Secretary of State, then to the debt collector’s principal place of business. It is not a violation to communicate with the consumer until 72 hours after receiving notice of attorney representa- tion. Hence, creditors and debt collectors should revisit their company’s proce- dures for processing mail received from their registered agent or at the principal place of business to be certain notices of representation are promptly noted on the consumer’s account. The amendment clarifies that regular account statements and notices required under applicable law, for example, escrow statements, sent to the consum- er are not a violation of the statute. The statute does not, however, provide any guidance as to what constitutes a “communication” that would violate the statute. This will continue to be a source of litigation. S.B. 542 also amended the statute of limitations for bringing claims under the WVCCPA. Under the current statute, the statute of limitations is different for closed-end versus open-end loans, and for closed-end loans, it is based on the “due date of the last scheduled pay- ment,” not on the date of the violation. After September 1, 2015, no action for violation of the WVCCPA may be brought more than four years after a violation has occurred, regardless of the type of credit. As originally enacted, the WVCCPA provided a statutory penalty for each 2015 Legislative Changes to the West Virginia Consumer Credit and Protection Act By Debra Lee Hovatter, Spilman Thomas & Battle, PLLC In the previous issue of West Virginia Banker, we discussed the Sostaric v. Marshall opinion. Although we had intended a follow-up article on this important decision in this edition, we thought it more timely to share information about the recent changes to the West Virginia Consumer Credit and Protection Act (“WVCCPA”). One of more than 260 bills sent to Governor Earl Ray Tomblin during the 2015 session of the West Virginia Legislature, Senate Bill 542 (“S.B. 542”) amends the WVCCPA’s debt collection provisions. With a couple of exceptions, which are specifically noted, the amendments take effect June 12, 2015.