West Virginia HB 2997: Conforming the state Consumer Credit and Protection Act to the federal Fair Debt Collection and Practices Act

Bill Text

HB 2997 Text

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Introduced Version

« House Bill 2997 History

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 Key: Green = existing Code. Red = new code to be enacted

WEST virginia 
legislature

2019 regular session

Introduced

House Bill 2997

By Delegates Higginbotham, 
Kessinger, and Waxman

[Introduced February 12, 
2019; Referred

to the Committee on the Judiciary.]

A BILL to amend and 
reenact §46A-5-101 of the Code of West Virginia, 1931, as amended, relating to 
conforming the state Consumer Credit and Protection Act to the federal Fair 
Debt Collection and Practices Act.

Be it enacted by the 
Legislature of West Virginia:

ARTICLE 5. CIVIL 
LIABILITY AND CRIMINAL PENALTIES.

§46A-5-101. Effect of violations on rights of parties; 
limitation of actions.

(1) If a creditor or debt 
collector has violated the provisions of this chapter applying to collection of 
excess charges, security in sales and leases, disclosure with respect to 
consumer leases, receipts, statements of account and evidences of payment, 
limitations on default charges, assignment of earnings, authorizations to 
confess judgment, illegal, fraudulent or unconscionable conduct, any prohibited 
debt collection practice, or restrictions on interest in land as security, 
assignment of earnings to regulated consumer lender, security agreement on 
household goods for benefit of regulated consumer lender, and renegotiation by 
regulated consumer lender of a loan discharged in bankruptcy, the consumer has 
a cause of action to recover: (a) Actual damages; and (b) a right in an 
action to recover damages from the person violating this chapter a 
penalty of $1,000 per violation civil action: Provided, 
That the aggregate amount of the penalty awarded shall not exceed the greater 
of $175,000 or the total alleged outstanding indebtedness Provided, however, 
That in a class action the aggregate limits on the amount of the penalty 
damages set forth above shall be applied severally to each named 
plaintiff. and each class member such that no named plaintiff nor any class 
member may recover in excess of the greater of $175,000 or the total alleged 
outstanding indebtedness But the recovery attributed to the members of 
the class may not be in excess of the lesser of $500,000 or one percent of the 
net worth of the debt collector or creditor. With respect to violations 
arising from consumer credit sales, consumer leases or consumer loans, or from sales 
as defined in article six of this chapter, no action pursuant to this 
subsection may be brought more than four years after the violations occurred: Provided, 
further however, That no action pursuant to this 
subsection to set aside a foreclosure sale of any real estate securing a 
consumer loan may be brought more than one year after the foreclosure sale is 
final. 

(2) If a creditor has 
violated the provisions of this chapter respecting authority to make regulated 
consumer loans, the loan is void and the consumer is not obligated to pay 
either the principal or the loan finance charge. If he or she has paid 
any part of the principal or of the finance charge, he or she has a 
right to recover in an action the payment from the person violating this 
chapter or from an assignee of that person’s rights who undertakes direct 
collection of payments or enforcement of rights arising from the debt. With 
respect to violations arising from regulated consumer loans made pursuant to 
revolving loan accounts, no action pursuant to this subsection may be brought 
more than four years after the violation occurred. With respect to violations 
of the provisions of this chapter respecting the authority to make arising from 
other regulated consumer loans, no action pursuant to this subsection may be 
brought more than four years after the violation occurred: Provided, 
That no action pursuant to this subsection to set aside a foreclosure sale of 
any real es