H. B. 2900
(By Delegates Fleischauer, Houston, Marshall,
Staton, Doyle, Linch and Leach)
[Introduced February 25, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one hundred eleven, article
seven, chapter forty-six-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
increasing the civil penalty for willfully violating the
Consumer Credit and Protection Act.
Be it enacted by the Legislature of West Virginia:
That section one hundred eleven, article seven, 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 7. ADMINISTRATION.
§46A-7-111. Civil actions by attorney general.
(1) After demand, the attorney general may bring a civil
action against a creditor for making or collecting charges in
excess of those permitted by this chapter. If it is found that an excess charge has been made, the court shall order the
respondent to refund to the consumer the amount of the excess
charge. If a creditor has made an excess charge in a deliberate
violation of or in reckless disregard for this chapter, or if a
creditor has refused to refund an excess charge within a
reasonable time after demand by the consumer or the attorney
general, the court may also order the respondent to pay to the
consumer a civil penalty in an amount determined by the court not
in excess of the greater of either the amount of the sales
finance charge or loan finance charge or ten times the amount of
the excess charge. Refunds and penalties to which the consumer
is entitled pursuant to this subsection may be set off against
the consumer's obligation. If a consumer brings an action
against a creditor to recover an excess charge or civil penalty,
an action by the attorney general to recover for the same excess
charge shall be stayed while the consumer's action is pending and
shall be dismissed if the consumer's action is dismissed with
prejudice or results in a final judgment granting or denying the
consumer's claim. With respect to excess charges arising from
consumer credit sales made pursuant to revolving charge accounts
or from consumer loans made pursuant to revolving loan accounts,
no action pursuant to this subsection may be brought more than
four years after the time the excess charge was made. With
respect to excess charges arising from other consumer credit sales or consumer loans, no action pursuant to this subsection
may be brought more than one year after the due date of the last
scheduled payment of the agreement pursuant to which the charge
was made. If the creditor establishes by a preponderance of
evidence that a violation is unintentional or the result of a
bona fide error, no liability to pay a penalty shall be imposed
under this subsection.
(2) The attorney general may bring a civil action against a
creditor or other person to recover a civil penalty for willfully
violating this chapter, and if the court finds that the defendant
has engaged in a course of repeated and willful violations of
this chapter, it may assess a civil penalty of no more than five
thousand dollars for each separate and distinct violation. No
civil penalty pursuant to this subsection may be imposed for
violations of this chapter occurring more than four years before
the action is brought.
NOTE: The purpose of this bill is to increase the civil
penalty from no more than $5,000 for a course of repeated and
willful violations to no more than $5,000 for each separate and
distinct willful violation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.