West Virginia Amends its Consumer and Credit Protection Act

West Virginia is passing a bill to amend and reenact its Consumer and Credit Protection Act (Chapter 46A of the Code of West Virginia).

These changes, specific to the debt industry:

• excluding attorneys from the definition of “debt collector” under certain circumstances
• changing the time period where direct contact with a consumer must cease after receipt of notice of representation from seventy-two hours to three business days
• establishing means of notice to a debt collector of a consumer’s representation by legal counsel
• requiring notice of representation to a debt collector be sent by certified mail, return receipt requested

The Definition of a Debt Collector

Per the amended Code: Debt collectors include "any person or organization engaging directly or indirectly in debt collection" as well as "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."

Attorneys can also be debt collectors, with this exception: "The term excludes attorneys representing creditors provided the attorneys are licensed in West Virginia or otherwise authorized to practice law in the State of West Virginia and handling claims and collections in their own name as an employee, partner, member, shareholder or owner of a law firm and not operating a collection agency under the management of a person who is not a licensed attorney."

Contacting Consumers

The Code is now changed from a 72-hour window, irrespective of business days, to three business days. Per §46A-2-128. Unfair or unconscionable means, subsection (e):

"Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:

(e) Any communication with a consumer made more than three business days after the debt collector receives written notice, from the consumer or his or her attorney that the consumer is represented by an attorney specifically with regard to the subject debt."

Establishing Means of Contact

Of interest here is this edit: at one point, consumers could submit notices of dispute "either on paper or electronically." That clause has now been deleted, and only written communication is stated.

Certified Mail

Consumers must send this information to a debt collector via certified mail:

To be effective under this subsection, such notice must clearly state the attorney’s name, address and telephone number and be sent by certified mail, return receipt requested, to the debt collector’s registered agent, identified by the debt collector at the office of the West Virginia Secretary of State or, if not registered with the West Virginia Secretary of State, then to the debt collector’s principal place of business.

Of interest is this additional piece of information: " Communication with a consumer is not prohibited under this subsection if the attorney fails to answer correspondence, return phone calls or discuss the obligation in question, or if the attorney consents to direct communication with the consumer."