Senator Trump (R), who is also the Chairman of the Judiciary Committee, proposed Senate Bill 563 which was recently enacted by the legislature in West Virginia and signed into law on April 21, 2017. The new law strips West Virginia consumers of protections and appears to be a naked attempt to skewer the citizens of West Virginia. All I can say is welcome to the future of consumer protection. If you think this law is unfriendly for consumers then wait until Washington guts the Consumer Financial Protection Bureau. You haven’t seen anything yet.
Under WV SB 563 attorneys are now excluded from the definition of “debt collectors”, contents of legal pleadings are exempted from claims made for a violation of the Consumer Credit and Protection Act, and requires consumers to send notices to collectors they are represented by an attorney via certified mail with a return receipt. My favorite part of this law which changes consumer protections has to be the part regarding the Statute of Limitations being extended.
When it comes to the attorney exemption the law now says regarding “debt collector”, “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.”
If a consumer feels a debt collector has violated the West Virginia debt collection statutes, not only does the new law drag out this matter but it also delays the effective day of the Statute of Limitations of the debt in question. The law provide debt collector protections even if the collector is not registered to do business in West Virginia.
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Specifically the law states, “No action may be brought pursuant to this article and articles two, three and four of this chapter until the consumer has informed the creditor or debt collector in writing and by certified mail, return receipt requested, to the creditor’s or debt collector’s registered agent identified by the creditor or 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 creditor’s or debt collector’s principal place of business, of the alleged violation and the factual basis for the violation and provide the creditor or debt collector forty-five days from receipt by the agent or at the principal place of business referenced above of the notice of violation but twenty days in the case a cause of action has already been filed to make a cure offer, which shall be provided to the consumer’s counsel or, if unrepresented, to the consumer by certified mail, return receipt requested: Provided, That the consumer shall have twenty days from receipt of the cure offer to accept the cure offer or it is deemed refused and withdrawn. When a claim under the provisions set forth in section one hundred one is presented as a counterclaim, cross-claim or third party claim, the notice of right to cure shall be served with the counterclaim, cross claim or third party claim in any manner permitted by the Rules of Civil Procedure.”
It also states, ” Any applicable statute of limitations is tolled for the 45-day period set forth in subsection (a) of this section or for the period the effectuation of the cure offer is being performed, whichever is longer.”
In a bit of good news in the law, SB 563 does require that in all communications with a debtor that the debt collector must information the debtor is the obligation in question is beyond the statute of limitations. The law says, “When the debt is beyond the statute of limitations for filing a legal action for collection, failing to provide the following disclosure informing the consumer in all written communication with such consumer that:
(1) When collecting on a debt that is not past the date for obsolescence provided for in Section 605(a) of the Fair Credit Reporting Act, 15 U. S. C. 1681c: “The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it. If you do not pay the debt, (INSERT OWNER NAME) may report or continue to report it to the credit reporting agencies as unpaid”; and
(2) When collecting on debt that is past the date for obsolescence provided for in Section 605(a) of the Fair Credit Reporting Act, 15 U. S. C. 1681c: “The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it and (INSERT OWNER NAME) cannot report it to any credit reporting agencies.”
Now we just need to hope people will actually read the fine print and notice the disclosure.