West Virginia Amends Provisions Regarding Consumer Credit, Uniform Trust and Allowable Fees
West Virginia Amends Provisions Regarding Consumer Credit and Protection Act
The state of West Virginia amended its provisions regarding its Consumer Credit and Protection Act under two bills (SB 344 and SB 563). These provisions were passed on April 5, 2017 and are effective 90 days from this passage date. The bills contain several major changes to the West Virginia Consumer Credit and Protection Act and the most significant ones are the following:
W.Va. Code §46A-3-111 provides that all payments made to a creditor in accordance with the terms of a precomputed consumer credit sale or consumer loan shall be applied to installments in the order in which they fall due and then to delinquency and other outstanding charges.
Furthermore, the statute permits lenders to hold payments which do not comply with the terms of a precomputed consumer credit sale or consumer loan in a suspense or unapplied funds accounts.
The lender must disclose to the consumer the total amount of funds held in a suspense or unapplied funds accounts. Once full payment is received the lender must apply the entire payment to the loan.
W.Va. Code §46A-2-122 amends the definition of “debt collector” to exclude attorneys representing creditors provided the attorneys are licensed and are 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.
W.Va. Code §46A-2-128 changes the period of time from seventy-two hours to three business days from which a debt collector must cease direct contact with a consumer after receiving notice of representation. The provision further specifies that notice to a debt collector of a consumer’s representation by legal counsel which before only needed to be in writing, must now be sent by certified mail, return receipt requested.
A new section, designated §46A-2-140, establishes that pleadings filed in a court of West Virginia shall not be a basis of a cause of action under this chapter, nor shall the act of filing a civil action be the basis of a cause of action under this chapter unless the pleading or the filing of the civil action constitutes a material violation of certain statutory provisions.
Additionally, W.Va. Code § 46A-5-101(2) amends the statute of limitations from four (4) years to one (1) year for claims relating to the setting aside of a foreclosure sale. Also, the amendment provides that any counterclaim brought under this chapter is subject to the applicable statute of limitations.
W.Va. Code § 46A-5-108 requires that consumers give a lender or debt collector notice of a right to cure in writing before filing a lawsuit. The consumer must provide the creditor or debt collector forty-five (45) days from receipt of the notice of violation but twenty days (20) to make a cure offer in case a cause of action has already been filed.
The consumer shall have twenty days (20) from receipt of the cure offer to accept the cure offer or it is deemed refused and withdrawn. If a cure offer is accepted, the creditor or debt collector has twenty days (20) to begin effectuating the agreed upon cure and the cure must be completed within a reasonable time.
Where an action is brought under this article, it is a complete defense that a cure offer was made, accepted and the agreed upon cure was performed. If a cure offer is made, but rejected by the consumer, the consumer may only be awarded attorney’s fees in the subsequent litigation if he or she is awarded an amount at trial that exceeds the cure offer.
West Virginia Modifies Provisions Regarding Fees and Allowance
The state of West Virginia modified its provisions relating to fees the clerk of county commission may charge. These provisions were passed on April 5, 2017 and are effective 90 days from this passage date.
The amendment provides that, when a writing is admitted to record, for receiving proof of acknowledgment thereof, entering an order in connection therewith, endorsing clerk’s certificate of recordation thereon and indexing in a proper index, the clerk of the county commission shall charge twenty-five dollars instead of fifteen dollars that was previously charged for a deed of conveyance (with or without a plat), trust deed, fixture filing or security agreement concerning real estate lease.
The amendment further stipulates that of the fees collected, five dollars instead one dollar shall be deposited in the county reappraisal fund and dedicated to the operation of the assessor’s office mapping division. Three dollars shall be deposited in the Courthouse Facilities Improvement Fund, and three dollars shall be deposited in the county general fund and dedicated to the operation of the county clerk’s office.
West Virginia Amends Provisions Regarding Uniform Trust Code
The state of West Virginia amended its provisions relating to trusts. These provisions were passed on April 5, 2017 and are effective 90 days from this passage date. The amendments generally relate to trusts and their administration.
The provisions establish an insurable interest of a trustee in the life of an individual insured under a life insurance policy that is owned by the trustee of the trust acting in a fiduciary capacity or that designates the trust itself as the owner if, on the date the policy is issued the insured is a grantor of the trust; or an individual in who, a grantor of the trust has, or would have had if living at the time the policy was issued, an insurable interest.
A “grantor” means a person that executes a trust instrument. The term includes a person for which a fiduciary or agent is acting.
The amendment eliminates the requirement to give notice to a trustee of substitution under certain circumstances and increase the amount of non-charitable trust property to terminate trust without court approval from $100,000 to $200,000.
The update requires that a self-settled spendthrift trust have one independent qualified trustee. Furthermore, the provisions allow a creditor or assignee to reach the maximum amount distributed for the grantor’s benefit from an irrevocable and change references from beneficiary to interested person in limitation on actions to contest validity of revocable trust.
Lastly, the amendment modifies the duty of a trustee to inform and report to beneficiaries from sixty days to a reasonable time and grant a trustee authority and power to wind up the administration of the trust upon its termination.
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
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