ENGROSSED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 429

(By Senator Wooton)

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[Originating in the Committee on the Judiciary;

reported February 17, 1999.]

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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 nonrevolving consumer loans or consumer credit sales for home improvements.

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 a nonrevolving consumer loan or a consumer credit sale for home improvements.

(a) A nonrevolving consumer loan for labor and material to improve or repair the consumer's homestead property, including a factory-built home, creating a consensual security interest in the homestead property that is solicited outside of a seller's regular place of business is valid if:
(1) The contract for labor and material is executed by the consumer twelve days after the consumer applies in writing for a nonrevolving consumer loan for labor and material, unless the consumer states in writing that the labor and material are necessary to immediately repair material defects and conditions on the homestead property affecting the health or safety of the consumer or others residing on the homestead property; and
(2) The nonrevolving consumer loan creating a consensual security interest in the consumer's homestead property is executed and notarized by the consumer at the office of a third-party lender, accountant or attorney at law who informs the consumer that a default on the loan may result in a foreclosure action on the consumer's homestead property.
(b) A consumer credit sale for improvements or repairs on a consumer's homestead property, including a factory-built home, that creates a consensual security interest in the homestead property and that is solicited outside the seller's regular place of business is valid if:
(1) The consumer credit sale for labor and material is executed by the consumer twelve days after the consumer applies in writing for a consumer credit sale for labor and material, unless the consumer states in writing that the labor and material are necessary to immediately repair material defects or conditions on the homestead property affecting the health or safety of the consumer or others residing on the homestead property;
(2) No substantial disparity exists between the selling price of the labor and material and the value of the labor and material in the community; and
(3) The consumer credit sale creating a consensual security interest in the consumer's homestead property is executed and notarized by the consumer at the office of an accountant or attorney at law who informs the consumer that a default on the credit sale may result in a foreclosure action on the consumer's homestead property.
(c) A nonrevolving consumer loan, consumer credit sale, mortgage, trust deed or other lien in violation of this section is 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 regulate the means through which a seller can take a security interest in the homestead property of a consumer for nonrevolving consumer loans and consumer credit sales for repairs and improvements that are solicited outside of the seller's regular place of business.

This section is new; therefore, strike-throughs and underscoring have been omitted.)