Pub. 6 2015 Issue 2

summer 2015 11 West Virginia Banker Debra Lee Hovatter is a Member based in Spilman Thomas & Battle’s Morgantown office. She is co-chair of the firm’s Consumer Finance Practice Group. Her primary areas of practice are consumer finance litigation and bankruptcy. She can be reached at 304.291.7951 or dhovatter@spilmanlaw.com Ask about FREE Equipment if you contact us TODAY! violation in an amount ranging from $100 to $1,000, which would be de- termined by the court. The statutory penalty provision is revised to provide a penalty of $1,000 per violation. In addi- tion, the total penalties awarded cannot exceed the greater of $175,000 or the total alleged outstanding indebtedness. The current statutory scheme, enacted in 1975, allows the statutory penalty of $100 to $1,000 to be adjusted for inflation. The inflation adjustment still will be available. However, it has been “re-set” to September 1, 2015. In other words, the inflation adjustment that previously was applied after 1974 is no longer available. The statutory penalty of $1,000 per violation may be adjusted for inflation after September 1, 2015. Also affecting litigation, S.B. 542 added § 46A-5-107, which specifies venue for civil actions brought by a consumer to recover actual damages or statutory penalties for violation of the WVC- CPA. Such actions must be brought in the circuit court of the county (i) in which the plaintiff has his legal resi- dence at the time the civil action is filed; (ii) where the plaintiff last resided in West Virginia; or (iii) in which the debt collector or creditor has its principal place of business. There are a number of other noteworthy amendments: • the maximum allowable late fee was increased to $30; • the filing of a complaint or oth- er pleading with a court will not violate the prohibition against unreasonably publicizing informa- tion related to indebtedness or the consumer; • consistent with the federal Fair Debt Collections Practices Act (“FDC- PA”), collection calls made between 8:00 a.m. and 9:00 p.m. will be considered the convenient time for calling a consumer, barring any extenuating circumstances; • it is a violation to engage a person in telephone conversation without disclosure of the caller’s identity if done so with the intent to annoy, harass or threaten the person called; • a safe harbor is created for the num- ber of collection calls that may be made by a debt collector, making it a violation if the debt collector calls a person more than 30 times per week or engages the person in tele- phone conversation more than 10 times per week. Note, however, that whether collection calls are oppres- sive and abusive will be evaluated from the standpoint of a reasonable person; and • it is not a violation for the debt collector to obtain information regarding the consumer’s location so long as the debt collector does so in compliance with the applicable provisions of the FDCPA. As with any new legislation, the full impact of the amendments will not be known for some time. For questions regarding the amendments or details regarding the changes discussed above, you should consult your West Virginia counsel, or alternatively, the author. n