Senate Bill No. 749

(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler, Oliverio, Ross, Schoonover, Snyder, White, Buckalew, Deem, Kimble and Scott)

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[Originating in the Committee on the Judiciary;

reported February 26, 1998.]

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A BILL to amend article two, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one hundred forty, relating to establishing limitations on security interests in homestead property in connection with certain loans or credit sales for home improvement.

Be it enacted by the Legislature of West Virginia:
That article two, chapter forty-six-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section one hundred forty, to read as follows:
ARTICLE 2. CONSUMER CREDIT PROTECTION.

§46A-2-140. Additional limitations on security interests in homestead property in connection with certain loans or credit sales for home improvements.

(a) In connection with a nonrevolving purchase money consumer loan for work and materials used in making improvements or repairs on homestead property solicited outside of a regular business establishment of the seller, a consensual security interest in a consumer's real property homestead or factory-built home used as a homestead is valid only if:
(1) The contract for the work and material is not executed by the consumer or spouse before the twelfth day after the consumer makes written application for any consumer loan for the work and material, unless the work and material are necessary to complete immediate repairs to conditions on the homestead property that materially affect the health or safety of the consumer or person residing in the homestead and the owner of the homestead acknowledges such in writing; and
(2) All documents involved with the extension of credit, including the consensual security interest, are executed by the consumer only at the office of a third-party lender making an extension of credit for the work and material or the offices of an attorney at law.
(b) In connection with a consumer credit sale for improvements or repairs on homestead property solicited outside of a regular business establishment of the seller, a consensual security in a consumer's real property homestead or factory-built home used as a homestead is valid only if:
(1) The contract for the work and material is not executed by the consumer or spouse before the twelfth day after the consumer makes written application for any consumer loan for the work and material, unless the work and material are necessary to complete immediate repairs to conditions on the homestead property that materially affect the health or safety of the consumer or person residing in the homestead and the owner of the homestead acknowledges such in writing;
(2) There is no substantial disparity between the price of the work and materials sold and the value of work and materials measured by the price at which similar work and materials are available in the community; and
(3) The consensual security interest is executed by the consumer and consumer's spouse only at the office of an attorney or the seller before a notary public who explains the ramifications of the security instrument.
(c) A mortgage, trust deed or other lien in violation of this section shall be per se unconscionable and subject to the provisions of section one hundred twenty-one of this article.
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(NOTE: The purpose of this bill is to limit security interests in homestead property in connection with credit sales or loans for home improvement when the contract for the home improvement has been solicited outside of a business establishment.
This section is new; therefore, strike-throughs and underscoring have been omitted.)