Introduced Version
House Bill 3113 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3113
(By Delegate H. White)
[Introduced
March 21, 2005
; 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 limiting to one year
the time
that an action may be brought for a violation of the
Consumer Protection Act involving
consumer credit sales or
consumer loans made pursuant to revolving charge accounts or
revolving loan accounts; and providing certain exceptions
.
Be it enacted by the Legislature of West Virginia:
That §46A-5-101 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. CIVIL LIABILITY AND CRIMINAL PENALTIES.
§46A-5-101. Effect of violations on rights of parties; limitation
of actions.
(1) If a creditor 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 loan discharged in bankruptcy, the consumer has a cause
of action to recover actual damages and, in addition, a right in an
action to recover from the person violating this chapter a penalty
in an amount determined by the court not less than one hundred
dollars nor more than one thousand dollars. With respect to
violations arising from consumer credit sales or consumer loans
made pursuant to revolving charge accounts or revolving loan
accounts, 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. With respect to violations
arising from other consumer credit sales or consumer loans, no
action pursuant to this subsection may be brought more than one
year after the due date of the last scheduled payment of the
agreement.
(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 arising
from other regulated consumer loans, no action pursuant to this
subsection may be brought more than one year after the due date of
the last scheduled payment of the agreement pursuant to which the
charge was paid.
(3) A consumer is not obligated to pay a charge in excess of
that allowed by this chapter, and if he has paid an excess charge
he has a right to a refund. A refund may be made by reducing the
consumer's obligation by the amount of the excess charge. If the
consumer has paid an amount in excess of the lawful obligation
under the agreement, the consumer may recover in an action the
excess amount from the person who made the excess charge or from an
assignee of that person's rights who undertakes direct collection
of payments from or enforcement of rights against the consumer
arising from the debt.
(4) If a creditor has contracted for or received a charge in excess of that allowed by this chapter, the consumer may, in
addition to recovering such excess charge, also recover from the
creditor or the person liable in an action a penalty in an amount
determined by the court not less than one hundred dollars nor more
than one thousand dollars. With respect to excess charges arising
from consumer credit sales or consumer loans made pursuant to
revolving charge accounts or revolving loan accounts, no action
pursuant to this subsection may be brought more than four years
after the time the excess charge was made. With respect to excess
charges arising from other consumer credit sales or consumer loans
no action pursuant to this subsection may be brought more than one
year after the due date of the last scheduled payment of the
agreement pursuant to which the charge was made.
(5) Except as otherwise provided, a violation of this chapter
does not impair rights on a debt.
(6) If an employer discharges an employee in violation of the
provisions prohibiting discharge, the employee may within ninety
days bring a civil action for recovery of wages lost as a result of
the violation and for an order requiring the reinstatement of the
employee. Damages recoverable shall not exceed lost wages for six
weeks.
(7) A creditor has no liability for a penalty under subsection
(1) or subsection (4) of this section if within fifteen days after
discovering an error, and prior to the institution of an action under this section or the receipt of written notice of the error,
the creditor notifies the person concerned of the error and
corrects the error. If the violation consists of a prohibited
agreement, giving the consumer a corrected copy of the writing
containing the error is sufficient notification and correction. If
the violation consists of an excess charge, correction shall be
made by an adjustment or refund.
(8) If the creditor establishes by a preponderance of evidence
that a violation is unintentional or the result of a bona fide
error of fact notwithstanding the maintenance of procedures
reasonably adapted to avoid any such violation or error, no
liability is imposed under subsections (1), (2) and (4) of this
section, and the validity of the transaction is not affected.
(9) An action under the provisions of this section may be
brought within one year from the date of the occurrence of the
violation. A person is not barred from asserting a violation of
this chapter in an action to collect the debt if the action was
brought more than one year after the occurrence of a violation of
this chapter as a matter of defense by recoupment or set off.
NOTE: The purpose of this bill is to reduce from four years
to one year the time that an action may be brought for a violation
of the Consumer Protection Act involving
consumer credit sales or
consumer loans made pursuant to revolving charge accounts or
revolving loan accounts. The bill also provides that a debt
collection action may be brought more than one year after the
occurrence of a violation as a matter of defense.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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