West Virginia Debt Collection Act
§ 46A-2-122. Definitions
For the purposes of this section and sections one hundred twenty-three, one hundred twenty-four, one hundred twenty-five, one hundred twenty-six, one hundred twenty-seven, one hundred twenty-eight, one hundred twenty-nine, and one hundred twenty-nine-a of this article, the following terms shall have the following meanings:
(a) "Consumer" means any natural person obligated or allegedly obligated to pay any debt.
(b) "Claim" means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or service which is the subject of the transaction is primarily for personal, family or household purposes, whether or not such obligation has been reduced to judgment.
(c) "Debt collection" means any action, conduct or practice of soliciting claims for collection or in the collection of claims owed or due or alleged to be owed or due by a consumer.
(d) "Debt collector" means any person or organization engaging directly or indirectly in debt collection. The term includes 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.
Acts 1974, c. 12; Acts 1978, c. 18; Acts 1996, c. 160, eff. 90 days after March 8, 1996.
§ 46A-2-123. Practice of law by debt collectors
Unless a licensed attorney in this State, no debt collector shall engage in conduct deemed the practice of law. With-out limiting the general application of the foregoing, the following conduct is deemed the practice of law:
(a) The performance of legal services, furnishing of legal advice or false representation, direct or by implication, that any person is an attorney;
(b) Any communication with consumers in the name of an attorney or upon stationery or other written matter bear-ing an attorney's name; and
(c) Any demand for or payment of money constituting a share of compensation for services performed or to be performed by an attorney in collecting a claim.
Acts 1974, c. 12.
§ 46A-2-124. Threats or coercion
No debt collector shall collect or attempt to collect any money alleged to be due and owing by means of any threat, coercion or attempt to coerce. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The use, or express or implicit threat of use, of violence or other criminal means, to cause harm to the person, reputation or property of any person;
(b) The accusation or threat to accuse any person of fraud, any crime, or any conduct which, if true, would tend to disgrace such other person or in any way subject him to ridicule, or any conduct which, if true, would tend to dis-grace such other person or in any way subject him to ridicule or contempt of society;
(c) False accusations made to another person, including any credit reporting agency, that a consumer is willfully refusing to pay a just debt, or the threat to so make false accusations;
(d) The threat to sell or assign to another the obligation of the consumer with an attending representation or implica-tion that the result of such sale or assignment would be that the consumer would lose any defense to the claim or would be subjected to harsh, vindictive or abusive collection attempts;
(e) The threat that nonpayment of an alleged claim will result in the:
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(1) Arrest of any person; or
(2) Garnishment of any wages of any person or the taking of other action requiring judicial sanction, without informing the consumer that there must be in effect a judicial order permitting such garnishment or such other action before it can be taken; and
Acts 1974, c. 12.
§ 46A-2-125. Oppression and abuse
No debt collector shall unreasonably oppress or abuse any person in connection with the collection of or attempt to collect any claim alleged to be due and owing by that person or another. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The use of profane or obscene language or language that is intended to unreasonably abuse the hearer or reader;
(b) The placement of telephone calls without disclosure of the caller's identity and with the intent to annoy, harass or threaten any person at the called number;
(c) Causing expense to any person in the form of long distance telephone tolls, telegram fees or other charges in-curred by a medium of communication, by concealment of the true purpose of the communication; and
(d) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number.
Acts 1974, c. 12.
§ 46A-2-126. Unreasonable publication
No debt collector shall unreasonably publicize information relating to any alleged indebtedness or consumer. With-out limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The communication to any employer or his agent before judgment has been rendered of any information relating to an employee's indebtedness other than through proper legal action, process or proceeding;
(b) The disclosure, publication, or communication of information relating to a consumer's indebtedness to any rela-tive or family member of the consumer if such person is not residing with the consumer, except through proper legal action or process or at the express and unsolicited request of the relative or family member;
(c) The disclosure, publication or communication of any information relating to a consumer's indebtedness to any other person other than a credit reporting agency, by publishing or posting any list of consumers, commonly known as "deadbeat lists," except lists to prevent the fraudulent use of credit accounts or credit cards, by advertising for sale any claim to enforce payment thereof, or in any manner other than through proper legal action, process or proceeding; and
(d) The use of any form of communication to the consumer, which ordinarily may be seen by any other persons, that displays or conveys any information about the alleged claim other than the name, address and phone number of the debt collector.
Acts 1974, c. 12.
§ 46A-2-127. Fraudulent, deceptive or misleading representations
No debt collector shall use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning consumers. Without limiting the general application of the fore-going, the following conduct is deemed to violate this section:
(a) The use of any business, company or organization name while engaged in the collection of claims, other than the true name of the debt collector's business, company or organization;
(b) Any false representation that the debt collector has in his possession information or something of value for the consumer that is made to solicit or discover information about the consumer;
(c) The failure to clearly disclose the name and full business address of the person to whom the claim has been as-signed for collection, or to whom the claim is owed, at the time of making any demand for money;
(d) Any false representation or implication of the character, extent or amount of a claim against a consumer, or of its status in any legal proceeding;
(e) Any false representation or false implication that any debt collector is vouched for, bonded by, affiliated with or an instrumentality, agent or official of this state or any agency of the federal, state or local government;
(f) The use or distribution or sale of any written communication which simulates or is falsely represented to be a document authorized, issued or approved by a court, an official or any other legally constituted or authorized authority, or which creates a false impression about its source, authorization or approval;
(g) Any representation that an existing obligation of the consumer may be increased by the addition of attorney's fees, investigation fees, service fees or any other fees or charges when in fact such fees or charges may not legally be added to the existing obligation; and
(h) Any false representation or false impression about the status or true nature of or the services rendered by the debt collector or his business.
Acts 1974, c. 12; Acts 1997, c. 64, eff. 90 days after April 12, 1997.
§ 46A-2-128. Unfair or unconscionable means
No debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim. Without limit-ing the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The seeking or obtaining of any written statement or acknowledgment in any form that specifies that a consum-er's obligation is one incurred for necessaries of life where the original obligation was not in fact incurred for such necessaries;
(b) The seeking or obtaining of any written statement or acknowledgment in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing the nature and conse-quences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation;
(c) The collection or the attempt to collect from the consumer all or any part of the debt collector's fee or charge for services rendered: Provided, That attorney's fees, court costs and other reasonable collection costs and charges ne-cessary for the collection of any amount due upon delinquent educational loans made by any institution of higher education within this state may be recovered when the terms of the obligation so provide. Recovery of attorney's fees and collection costs may not exceed thirty-three and one-third percent of the amount due and owing to any such institution: Provided, however, That nothing contained in this subsection shall be construed to limit or prohibit any institution of higher education from paying additional attorney fees and collection costs as long as such additional attorney fees and collection costs do not exceed an amount equal to five percent of the amount of the debt actually recovered and such additional attorney fees and collection costs are deducted or paid from the amount of the debt recovered for the institution or paid from other funds available to the institution;
(d) The collection of or the attempt to collect any interest or other charge, fee or expense incidental to the principal obligation unless such interest or incidental fee, charge or expense is expressly authorized by the agreement creating the obligation and by statute; and
(e) Any communication with a consumer whenever it appears that the consumer is represented by an attorney and the attorney's name and address are known, or could be easily ascertained, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication.
Acts 1974, c. 12; Acts 1983, c. 42; Acts 1990, c. 49.
§ 46A-2-129. Postal violations
No debt collector shall use, distribute, sell or prepare for use any written communication which violates or fails to conform to United States postal laws and regulations.
Acts 1974, c. 12.
§ 46A-2-129a. Deceptive or oppressive telephone calls
No debt collector shall place a telephone call or otherwise communicate by telephone with a consumer or third par-ty, at any place, including a place of employment, falsely stating that the call is "urgent" or an "emergency".
Acts 1994, c. 26.
§ 46A-2-130. Limitation on garnishment
(1) For the purposes of the provisions in this chapter relating to garnishment:
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(a) "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld; and
(b) "Garnishment" means any legal or equitable procedure through which the earnings of an individual are required to be withheld for payment of a debt.
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(a) Twenty percent of his disposable earnings for that week, or
(b) The amount by which his disposable earnings for that week exceed thirty times the federal minimum hourly wage prescribed by section 6(a)(1) of the "Fair Labor Standards Act of 1938," U.S.C. Title 19, Sec. 206(a)(1), in effect at the time the earnings are payable.
(c) In the case of earnings for a pay period other than a week, the commissioner shall prescribe by rule a multiple of the federal minimum hourly wage equivalent in effect to that set forth in subdivision (b), subsection (2) of this sec-tion.
(4) No garnishment governed by the provisions of this section will be given priority over a voluntary assignment of wages to fulfill a support obligation, a garnishment to collect arrearages in support payments, or a notice of with-holding from wages of amounts payable as support, notwithstanding the fact that the garnishment in question or the judgment upon which it is based may have preceded the support-related assignment, garnishment, or notice of withholding in point of time or filing.
Acts 1974, c. 12; Acts 1986, c. 42; Acts 1996, c. 160, eff. 90 days after March 8, 1996.
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