WVC 46 A- 6 - 106
§46A-6-106. Private causes of action.
(a) Subject to subsections (b) and (c) of this section, any
person who purchases or leases goods or services and thereby
suffers an ascertainable loss of money or property, real or
personal, as a result of the use or employment by another person of
a method, act or practice prohibited or declared to be unlawful by
the provisions of this article may bring an action in the circuit
court of the county in which the seller or lessor resides or has
his or her principal place of business or is doing business, or as
provided for in sections one and two, article one, chapter
fifty-six of this code, to recover actual damages or $200,
whichever is greater. The court may, in its discretion, provide
such equitable relief it considers necessary or proper. Any party
to an action for damages under this subsection has the right to
demand a jury trial.
(b) No award of damages in an action pursuant to subsection
(a) may be made without proof that the person seeking damages
suffered an actual out-of-pocket loss that was proximately caused
by a violation of this article. If a person seeking to recover
damages for a violation of this article alleges that an affirmative
misrepresentation is the basis for his or her claim then he or she
must prove that the deceptive act or practice caused him or her to
enter into the transaction that resulted in his or her damages. If
a person seeking to recover damages for a violation of this article
alleges that the concealment or omission of information is the basis for his or her claim, then he or she must prove that the
person's loss was proximately caused by the concealment or
(c) Notwithstanding the provisions of subsections (a) and (b)
of this section, no action, counterclaim, cross-claim or third-
party claim may be brought pursuant to the provisions of this
section until the person has informed the seller or lessor in
writing and by certified mail, return receipt requested, of the
alleged violation and provided the seller or lessor twenty days
from receipt of the notice of violation but ten days in the case a
cause of action has already been filed to make a cure offer:
That the person shall have ten days from receipt of the
cure offer to accept the cure offer or it is deemed refused and
(d) If a cure offer is accepted, the seller or lessor has ten
days to begin effectuating the agreed upon cure and the cure must
be completed within a reasonable time.
(e) Any applicable statute of limitations is tolled for the
twenty-day period set forth in subsection (c) of this section or
for the period the effectuation of the cure offer is being
performed, whichever is longer.
(f) Nothing in this section prevents a person that has
accepted a cure offer from bringing a civil action against a seller
or lessor for failing to timely effect the cure offer.
(g) Any permanent injunction, judgment or order of the court under section one hundred eight, article seven of this chapter for
a violation of section one hundred four of this article is prima
facie evidence in an action brought pursuant to the provisions of
this section that the respondent used or employed a method, act or
practice declared unlawful by section one hundred four of this
(h) Where an action is brought pursuant to the provisions of
this section, it is a complete defense that a cure offer was made,
accepted and the agreed upon cure was performed. If the finder of
fact determines that the cure offer was accepted and the agreed
upon cure performed, the seller or lessor is entitled to reasonable
attorney's fees and costs attendant to defending the action.
(i) No cure offer is admissible in any proceeding initiated
pursuant to the provisions of this article unless the cure offer is
delivered by a seller or lessor to the person claiming loss or to
any attorney representing such person prior to the filing of the
seller or lessee's initial responsive pleading in such proceeding.
If the cure offer is timely delivered by the seller or lessor, then
the seller or lessee may introduce the cure offer into evidence at
trial. The seller or lessor is not liable for the person's
attorney's fees and court costs incurred following delivery of the
cure offer unless the actual damages found to have been sustained
and awarded, without consideration of attorney's fees and court
costs, exceed the value of the cure offer.
Note: WV Code updated with legislation passed through the 2015 Regular Session
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