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Senate Bill No. 4

(By Senator Minard)


[Introduced February 9, 2005; referred to the Committee

on the Judiciary.]


A BILL to amend and reenact §46A-6-102 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §46A-6-111, all relating to defining "consumer reporting agency"; requiring consumer reporting agencies to notify consumers of negative credit reports in advance of their release; and providing a cause of action and civil penalties for violations.

Be it enacted by the Legislature of West Virginia:
That §46A-6-102 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §46A-6-111, all to read as follows:
§46A-6-102. Definitions.
When used in this article the following words, terms and phrases, and any variations thereof required by the context, shall have the meaning ascribed to them in this article, except where the context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or circulation of any matter, oral or written, including labeling, which tends to induce, directly or indirectly, any person to enter into any obligation, sign any contract, or acquire any title or interest in any goods or services and includes every word device to disguise any form of business solicitation by using such terms as "renewal," "invoice," "bill," "statement" or "reminder," to create an impression of existing obligation when there is none, or other language to mislead any person in relation to any sought-after commercial transaction.
(b) "Consumer" means a natural person to whom a sale or lease is made in a consumer transaction, and a "consumer transaction" means a sale or lease to a natural person or persons for a personal, family, household or agricultural purpose.
(c) "Consumer reporting agency" has the meaning assigned by Section 603(f), Fair Credit Reporting Ace (15 U.S.C. Section 1681a (f).
(c)(d) "Merchantable" means, in addition to the qualities prescribed in section three hundred fourteen, article two, chapter forty-six of this code, that the goods conform in all material respects to applicable state and federal statutes and regulations establishing standards of quality and safety of goods and, in the case of goods with mechanical, electrical or thermal components, that the goods are in good working order and will operate properly in normal usage for a reasonable period of time.
(d)(e) "Sale" includes any sale, offer for sale or attempt to sell any goods for cash or credit or any services or offer for services for cash or credit.
(e)(f) "Trade" or "commerce" means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state.
(f)(g) "Unfair methods of competition and unfair or deceptive acts or practices" means and includes, but is not limited to, any one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) Causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another;
(4) Using deceptive representations or designations of geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have, or that a person has a sponsorship, approval, status, affiliation or connection that he or she does not have;
(6) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
(8) Disparaging the goods, services or business of another by false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them as advertised;
(10) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any deception, fraud, false pretense, false promise or misrepresentation, or the concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised, printed, displayed, published, distributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extension of consumer credit including the rates, terms or conditions for the sale of such goods or the extension of such credit, which is false, misleading, or deceptive, or which omits to state material information which is necessary to make the statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a group of prizes or any other thing of value, if receipt of the prize or thing of value is contingent upon any payment of a service charge, mailing charge, handling charge or any other similar charge by the person or upon mandatory attendance by the person at a promotion or sales presentation at the seller's place of business or any other location: Provided, That a person may be offered one item or the choice of several items conditioned on the person listening to a sales promotion or entering a consumer transaction if the true retail value and an accurate description of the item or items are clearly and conspicuously disclosed along with the person's obligations upon accepting the item or items; such description and disclosure shall be typewritten or printed in at least eight point regular type, in upper or lower case, where appropriate; or
(16) Violating any provision or requirement of article six-b of this chapter.
(g)(h) "Warranty" means express and implied warranties described and defined in sections three hundred thirteen, three hundred fourteen and three hundred fifteen, article two, chapter forty-six of this code and expressions or actions of a merchant which assure the consumer that the goods have described qualities or will perform in a described manner.
§46A-6-111. Consumer reporting agencies to notify consumers in advance of reporting negative credit rating.

(a) A consumer reporting agency shall notify a consumer if a credit report has been requested concerning his or her credit and if the report demonstrates a negative credit rating. The report shall be in writing and shall be sent by certified mail posted at least twenty days prior to publishing the report to the requesting party. A complete copy of that report to the consumer constitutes a writing.
(b) If a consumer reporting agency violates the provisions of subsection (a) of this section and the credit sought by the consumer is denied for reason of obsolete or other erroneous material contained in the report, the consumer has a cause of action for the amount of any monetary loss incurred by him or her.
A consumer reporting agency violating the provisions of this section is also subject to a civil penalty in an amount determined by the court of not less than one hundred nor more than one thousand dollars.

NOTE: The purpose of this bill is to compel consumer reporting agencies to notify consumers of negative credit reports to allow consumers an opportunity to correct any discrepancies before the report is relied upon by a potential creditor. The bill provides for a cause of action for violations and subjects consumer reporting agencies violating the provisions of the bill to a civil penalty.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§46A-6-11 is new; therefore, strike-throughs and underscoring have been omitted.
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