Pub. 7 2016 Issue 4

www.wvbankers.org 12 West Virginia Banker With urging of the banking industry, the West Virginia Legislature amended the WVCCPA in 2015 and again in 2016 to address the sometimes egregious practices of consumer lawyers that unfairly imposed liability on banks. For the first time, a court has decided the meaning and scope of certain amendments enacted in 2015. In Biser v. Manufacturers and Traders Trust Company, the United States District Court for the Southern District of West Virginia held that the WVCCPA amendments effective on June 15, 2015 cannot be applied retroactively to alleged violations of the WVCCPA that occurred before that date. According to U.S. District Judge Irene Berger, if alleged violations of the WVCCPA occurred before June 12, 2015, then the old version of the law will apply to those violations and consumers may be able to collect much greater damages. At issue in Biser were amendments to West Virginia Code § 46A-2-125(d) and West Virginia Code § 46A-2-128(e). Originally, § 46A-2-125(d) prohibited “[c] ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number.” Since June 12, 2015, § 46A-2-125(d) is violated where a debt collector “call[s] any person more than thirty times per week or engaging  2015 Amendments to the West Virginia Consumer Credit and Protection Act May Not Apply Retroactively — continued from page 11 Sandra Murphy and Floyd Boone are attorneys in theCharleston office of Bowles Rice LLP. Should you requiremore information, please feel free to contact the authors directly. Ms. Murphy is the leader of the firm’s Banking and Financial Servicesteam.Sheconcentrates her prac tice in banking, commercial and financial services and securities law. She can be reached at (304) 347- 1131 or by e-mail at smurphy@ bowlesrice.com. Mr. Boone is a Bowles Rice partner and has extensive experience representing financial institutions in lawsuits brought by consumers and regulators. He can be reached at (304) 347-1733 or by e-mail at fboone@bowlesrice.com. Judge Berger’s decision is important because, if adopted by other courts, it could determine whether a defendant in a WVCCPA case faces tens of thousands of dollars in potential liability or no liability at all. That is, if the old version of the WVCCPA applies because a significant number of WVCCPA violations allegedly occurred before June 12, 2015, then a defendant’s potential liability could be significant. On the other hand, if the same alleged violations allegedly occurred after June 12, 2015, then the same defendant might face no liability. Accordingly, banks facing potential liability based on the debt collection provisions of the WVCCPA should carefully consider the impact of a court finding retroactivity does not apply when assessing their exposure. any person in telephone conversation more than ten times per week, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the dialed number.” In addition, amended § 46A-2-125(d) contains a presumption that telephone calls made between 8:00 a.m. and 9:00 p.m. are made at reasonable times. With respect to West Virginia Code § 46A-2-128(e), before the 2015 amendment, “any communication with a consumer” could result in a debt collector obtaining knowledge that the consumer was represented by legal counsel, which would then generally trigger liability for each subsequent call to the consumer. As amended, liability under § 46A-2-128(e) is triggered by “communication[s] with a consumer made more than seventy-two hours after the debt collector receives written notice, either on paper or electronically, from the consumer or his or her attorney that the consumer is represented by an attorney specifically with regard to the subject debt.” Moreover, written notification of attorney representation must be provided to a debt collector’s registered agent, if registered with the West Virginia Secretary of State, or in a communication sent to the debt collector’s principal place of business. Judge Berger concluded that the 2015 amendments could not be applied retroactively to alleged violations that occurred before June 12, 2015, because the amendments could not be characterized as a mere clarification of the WVCCPA’s original provisions. Instead, Judge Berger found that the amendments established “bright line rules” that are “a substantive departure from the prior version of the law.” Although West Virginia state court judges and other federal judges are not required to follow Judge Berger’s decision, there is a strong possibility that these judges will adopt Judge Berger’s analysis. At a minimum, in cases before other courts, the Biser decision will give plaintiffs’ lawyers at least some advantage in arguing for greater damages where alleged violations of the WVCCPA occurred before June 12, 2015. Judge Berger’s decision is important because, if adopted by other courts, it could determine whether a defendant in a WVCCPA case faces tens of thousands of dollars in potential liability or no liability at all. That is, if the old version of the WVCCPA applies because a significant number of WVCCPA violations allegedly occurred before June 12, 2015, then a defendant’s potential liability could be significant. On the other hand, if the same alleged violations allegedly occurred after June 12, 2015, then the same defendant might face no liability. Accordingly, banks facing potential liability based on the debt collection provisions of the WVCCPA should carefully consider the impact of a court finding retroactivity does not apply when assessing their exposure. 