H. B. 4360
(By Delegates Guthrie, L. Phillips, Poore,
Sponaugle, Young, Skinner, Fragale, Skaff
(Originating in theCommittee on the Judiciary)
[February 21, 2014]
A BILL to amend and reenact §46A-2-128 of the Code of West Virginia, 1931, as amended, all relating to consumer credit protection; and including additional conduct that is an unfair or unconscionable means to collect or attempt to collect a debt.
Be it enacted by the Legislature of West Virginia:
That §46A-2-128 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-128. Unfair or unconscionable means.
No debt collector shall may use unfair or unconscionable means to collect or attempt to collect any claim. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The seeking or obtaining of any written statement or acknowledgment in any form that specifies that a consumer's obligation is one incurred for necessaries of life where the original obligation was not in fact incurred for such necessaries;
(b) The seeking or obtaining of any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing the nature and consequences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation;
(c) The collection or the attempt to collect from the consumer all or any part of the debt collector's fee or charge for services rendered: Provided, That attorney's fees, court costs and other reasonable collection costs and charges necessary for the collection of any amount due upon delinquent educational loans made by any institution of higher education within this state may be recovered when the terms of the obligation so provide. Recovery of attorney's fees and collection costs may not exceed thirty-three and one-third percent of the amount due and owing to any such institution: Provided, however, That nothing contained in this subsection shall be construed to limit or prohibit any institution of higher education from paying additional attorney fees and collection costs as long as such additional attorney fees and collection costs do not exceed an amount equal to five percent of the amount of the debt actually recovered and such additional attorney fees and collection costs are deducted or paid from the amount of the debt recovered for the institution or paid from other funds available to the institution;
(d) The collection of or the attempt to collect any interest or other charge, fee or expense incidental to the principal obligation unless such interest or incidental fee, charge or expense is expressly authorized by the agreement creating the obligation and by statute; and
(e) Any communication 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, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication; and
(f) The collection of or the attempt to collect from the consumer, all or any part of a debt:
(1) That the statute of limitations has expired;
(2) That is no longer owned by the original obligee or successor by merger or acquisition;
(3) That has been sold or otherwise transferred by the original obligee to a debt collector; and
(4) That the debtor has made no payment for at least ten years.