H. B. 4529
(By Delegates Rowe, Hutchins, Thompson,
Kominar, Trump, Spencer and Miller)
[Introduced February 23, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one hundred six, article two,
chapter forty-six-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
consumer credit protection; and requiring notice from
creditors to cosigners of failure of consumer to make
scheduled payments.
Be it enacted by the Legislature of West Virginia:
That section one hundred six, article two, chapter
forty-six-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-106. Notice of consumer's right to cure default; cure; acceleration.
After a consumer has been in default on any installment obligation or any other secured obligation for five days for
failure to make a scheduled payment or otherwise perform pursuant
to such a consumer credit sale, consumer lease or consumer loan
other than with respect to a covenant to provide insurance for or
otherwise to protect and preserve the property covered by a
security interest, the creditor may give him or her notice of
such fact in the manner provided for herein. Actual delivery of
such notice to a consumer or delivery or mailing of same to the
last known address of the consumer is sufficient for the purpose
of this section. If given by mail, notice is given when it is
deposited in a mailbox properly addressed and postage prepaid.
Notice shall be in writing and shall conspicuously state the
name, address and telephone number of the creditor to whom
payment or other performance is owed, a brief description of the
transaction, the consumer's right to cure such default and the
amount of payment and other required performance and date by
which it must be paid or accomplished in order to cure the
default. A copy of the notice required by this section shall be:
(i) Sent to any cosigner of the obligation unless the cosigner
has waived in writing the cosigner's right to receive copies of
the notice; (i) (ii) retained by the creditor; (ii) (iii)
certified in the manner prescribed by this section by an officer
or other authorized representative of such creditor; and (iii)
(iv) notarized by a person licensed as a notary under the laws of the state of West Virginia or any other state or territory of the
United States. The certification required by this section shall
substantially conform to the following language:
"I, ___________________________ (name of person certifying),
the ______________________________ (title of person certifying)
of ___________________________ (creditor's name), hereby certify
that the notice of the consumer's right to cure default on which
this certification appears (or to which this certification is
attached) was on this _________ day of ______________, 19______,
mailed to the person(s) whose name(s) appear herein (therein) at
the address(es) set forth herein (therein).
___________________________________________"
(Signature)
Except as hereinafter provided in this section, after a
default on any installment obligation or any other secured
obligation other than with respect to a covenant to provide
insurance for or otherwise to protect and preserve the property
covered by a security interest or lease, a creditor may not
accelerate maturity of the unpaid balance of any such installment
obligation or any other such secured obligation, commence any
action or demand or take possession of collateral on account of
default until ten days after notice has been given to the
consumer of his or her right to cure such default. Until such
period expires, the consumer shall have the right to cure any default by tendering the amount of all unpaid sums due at the
time of the tender, without acceleration, plus any unpaid
delinquency or deferral charges and by tendering any other
performance necessary to cure such default. Any such cure shall
restore a consumer to all his or her rights under the agreement
the same as if there had been no default. A consumer who has
been in default three or more times on the same obligation and
who has been given notice of such fact three or more times shall
not have the right to cure a default under this section even
though previous defaults have been cured and his or her
creditor's right to proceed against him or her and his or her
collateral shall not be impaired or limited in any way by this
section. There shall be no acceleration of the maturity of all
or part of any amount owing in such a consumer credit sale,
consumer lease or consumer loan, except where nonperformance
specified in the agreement as constituting default has occurred.
NOTE: The purpose of this bill is to require creditors to
send notice of failure to make scheduled payments to cosigners of
consumer credit transactions, unless the consigner waives the
right to receive the notice.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.