New Disclosure Requirement for Out-of-Statute Debts in West Virginia

New changes to the West Virginia Code will require debt collectors to update any collection notices that will be sent to West Virginia consumers on out-of-statute debts (i.e., debts beyond the statute of limitations for filing a legal action for collection).  2014 H.B. 4360, a recently enacted bill, amends and reenacts §46A-2-128 of the Code of West Virginia relating to consumer credit protection, and specifically to unfair and unconscionable means to collect a debt.

Effective June 6, 2014, the new legislation will require debt collectors pursuing out-of-statute debts to inform consumers in their initial written communication that the creditor or collector cannot report the debt to the credit reporting agencies as unpaid and cannot sue for it.  Below is an excerpt with the required disclosure language (emphasis added):

(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 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.”

The bill also reinstates that no debt collector may use unfair or unconscionable means to collect or attempt to collect any debt.  Besides not including the necessary disclosures stated above, the following conduct will also violate §46A-2-128 of the Code of West Virginia:

-          Seeking or obtaining any written statement in any form that specifies that a consumer’s obligation is incurred for necessaries of life if this obligation was not incurred for such necessaries;

-          Seeking or obtaining any written statement in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, unless the nature and consequences of such affirmation are disclosed, as well as the fact that the consumer is not legally obligated to make such affirmation;

-          Collection or attempt to collect any interest or other charge, fee or expense incidental to the principal obligation unless they are authorized by the agreement creating the obligation and by statute;

-          Any communication with a consumer whenever they are appeared to be or are represented by an attorney unless the attorney fails to return calls or answer correspondence;

-          Collection or attempt to collect from the consumer debt collector’s fee or charge for services rendered (see restrictions in the 2014 H.B. 4360 bill).

For more information on this new legislation, the Code of West Virginia or fair debt collection statutes for other states, you may contact Joseph Messer at jmesser@messerstrickler.com or at (312) 334-3440 or Stephanie Strickler at sstrickler@messerstrickler.com or at (312) 334-3465.