Spilman Thomas & Battle, PLLC
  March 15, 2011 - West Virginia

Consumer Protection: West Virginia Debt Collection Provisions
  by by Angela L. Beblo, Esq. and Patrick R. Barry, Esq.

In the past several years, there has been an increase in cases asserting claims
under the West Virginia Consumer Credit and Protection Act, W. Va. Code
§ 46A-1-101, et seq. (“WVCCPA”) relating to illegal debt
collection. The success of early suits has lead to an increased number
of these lawsuits. Thus, West Virginia-based financial institutions
should endeavor to learn about the intricacies of the WVCCPA and, if not
already in place, develop policies, procedures, and training programs
to ensure they are not violating the WVCCPA when they are collecting
debts from consumers in West Virginia. 

Over the next several quarters, we will be providing information on the WVCCPA and how it
relates to collection efforts by financial institutions. We will begin
with an overview of the WVCCPA, review each of the individual sections,
and finish with recommendations and considerations for the future. The
WVCCPA can significantly impact the way any financial institution does
business, making an understanding of the WVCCPA’s provisions and how
litigants utilize the WVCCPA’s provisions when asserting claims against
financial institutions paramount. 

Overview Of The Debt Collection Provision Contained Within The WVCCPA

The
WVCCPA was passed into law in 1974 and is incredibly consumer-friendly.
The WVCCPA applies to consumer loans, credit sales, and leases.1 It proscribes the maximum charges and fees that may be imposed on accounts.2 The collection provisions3
apply to all debt collection activity – whether done by third-party
collectors or creditors/issuers seeking to collect against their
customer.4 In connection with collecting on a debt, the WVCCPA prohibits: (1) threats and coercion5; (2) oppression and abuse6; (3) unreasonable publication7; (4) fraudulent, deceptive, or misleading representations8; (5) unfair or unconscionable conduct9; (6) postal violations10; and (7) deceptive or oppressive telephone calls.11 Each of these sections contains a non-exhaustive list of activities that are prohibited under the WVCCPA.

Next quarter’s article will focus on an analysis of the types of claims typically asserted under the WVCCPA.


For more information on immigration and employment law compliance advice, please contact:

by Angela L. Beblo, Esq. and Patrick R. Barry, Esq.

Angela L. Beblo
304.340.3852
[email protected]

Patrick R. Barry
304.340.3884
[email protected]



Footnotes:


1W.
Va. Code § 46A-1-104 (“This chapter applies if a consumer, who is a
resident of this state, is induced to enter into a consumer credit sale
made pursuant to a revolving charge account, to enter into a revolving
charge account, to enter into a consumer loan made pursuant to a
revolving loan account, or to enter into a consumer lease [ ], and the
goods, services or proceeds are delivered to the consumer in this state,
and payment on such account is to be made from this state.”); W. Va.
Code § 46A-1-102 (including definitions of the types of transactions
subject to the Act).

2Id. at 1-103, 2-115, 3-101 -109, 3-112 -117.

3Id. at 2-122 -129a.

4Id. at 2-122(c-d) (“debt collection” is defined as
“any action, conduct or practice of soliciting claims for collection or
in the collection of claims . . . alleged to be owed or due by a
consumer” and “debt collector” is defined as “any person or organization
engaging directly or indirectly in debt collection”; See Thomas v.
Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d 905 (1980).

5W. Va. Code § 46A-2-124 (including, but not limited too, (a)
the use or threat of violence, (b) threat or accusation of threat that a
person has committed a fraud or crime and that would tend to disgrace
the person accused, (c) false accusations of failure to pay, including
information reported to a credit agency, and (d) threatening arrest or
garnishment without first explaining that judicial order must be in
effect).

6Id. at 2-125 (including (a) using obscene or profane
language, (b) a caller’s failure to identify themselves and with the
intent to annoy, harass or threaten the person called, (c) causing a
person to incur charges by concealing the purpose of the communication,
and (d) causing a phone to ring or talking to a person at inconvenient
times with the intent to annoy, harass, or threaten a person).

7Id. at 2-126 (including, but not limited too, (a)
impermissibly disclosing indebtedness to an employer outside of legal
proceedings and (b) impermissibly disclosing indebtedness to a family
member).

8Id. at 2-127 (including, but not limited too, (a)
using a false business name, (c) failure to disclose the name and
address of the business that has been assigned the claim or to whom the
claim is owed, (d) false representations about the “character, extent or
amount of a claim” or the status of legal proceedings, and (g)
statements that the debt may be increased by various fees that cannot
legally be added to the debt).

9Id. at 2-128 (including, but not limited too, (c)
collecting or attempting to collect all or part of a collector’s fee,
(d) collecting or attempting to collect fees or charges not permitted by
the agreement, and (e) communicating with a consumer that is
represented by an attorney, whose name and number are known or could
easily be discovered).

10Id. at 2-129 (stating that a collector shall not
remit any communication that “violates or fails to conform to United
States postal laws and regulations”).

11W. Va. Code § 46A-2-129a (making it impermissible to claim that a call is “’urgent’ or an ‘emergency’”).