H. B. 3233

         (By Delegates Ashley, Miley, Michael,

                        Boggs and Frazier)

         [Introduced February 21, 2011; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §46A-2-122 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §46A-2-128a, all relating to the protection of consumers against certain actions of debt collectors.

Be it enacted by the Legislature of West Virginia:

    That §46A-2-122 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §46A-2-128a, all to read as follows:

ARTICLE 2. CONSUMER CREDIT PROTECTION.

§46A-2-122. Definitions.
    For the purposes of this section and sections one hundred twenty-three, one hundred twenty-four, one hundred twenty-five, one hundred twenty-six, one hundred twenty-seven, one hundred twenty-eight, one hundred twenty-eight-a, one hundred twenty-nine and one hundred twenty-nine-a of this article, the following terms shall have the following meanings:

    (a) "Consumer" means any a natural person obligated or allegedly obligated to pay any a debt.

    (b) "Claim" means any an obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or service which is the subject of the transaction is primarily for personal, family or household purposes whether or not such obligation has been reduced to judgment.

    (c) "Debt collection" means any an action, conduct or practice of soliciting claims for collection or in the collection of claims owed or due or alleged to be owed or due by a consumer.

    (d) "Debt collector" means any a person or organization engaging directly or indirectly in debt collection. The term includes any person or organization who sells or offers to sell forms which are, or are represented to be, a collection system, device or scheme and are intended or calculated to be used to collect claims.

§46A-2-128a. Failures to respond by debt collectors; unlawful actions, damages.

    (a) A debt collector who receives a written inquiry from a consumer or a consumer’s representative concerning an alleged obligation of the consumer shall respond, in writing, to the written inquiry within thirty days. The debt collector’s obligation to respond is limited to three written inquiries within a calendar year.

    (b) If a debt collector does not respond, in writing, to a written inquiry from a consumer or the consumer’s representative within thirty days, the debt collector is prohibited from taking any adverse collection action against the consumer including, but not limited to, causing a complaint to be filed in any court of competent jurisdiction seeking to enforce the debt allegedly owed by the consumer, causing the issuance of any form of garnishment or the reporting of adverse information regarding the consumer to a credit reporting agency. This prohibition is removed following the debt collector’s delivery of a written response to the consumer or the consumer’s representative.

    (c) A consumer who has been subject to a violation of subsection (a) or (b) of this section may bring an action to recover actual damages for any injury sustained by the action or failure to act of the debt collector. In addition to actual damages, a minimum additional damage assessment of $300 may be recovered for violations of this section. In a claim brought under this section, the court may award all or a portion of the costs of litigation, including reasonable attorney fees, court costs and fees, to the consumer and, if the court finds that the debt collector has willfully violated the provisions of this section, may cancel the debt when the debt is not secured by a security interest.

    NOTE: The purpose of this bill is to add additional protection of consumers against certain actions of debt collectors.

    Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.

    §46A-2-128a is new; therefore, it has been completely underscored.