West Virginia Recent Regulatory Updates
West Virginia Modifies Provisions Regarding SAFE Mortgage Licensing Act
The state of West Virginia modified its provisions relating to its Secure and Fair Enforcement for Mortgage Licensing Act that include license application fee requirements and prelicensing and continuing education requirements. These provisions are effective on May 31, 2018.
The amendment increases the licensure application fee from $50 to $200 and also provides that a person must complete at least twenty-four hours of education to meet the prelicensing education requirement. The twenty-four hours of education shall include at least four hours of training related to West Virginia mortgage and consumer laws or issues.
Additionally, the amendment provides that a licensed mortgage loan originator must complete at least nine hours of education in order to meet the annual continuing education requirements. The nine hours of education shall include two hours training related to West Virginia law or regulations.
West Virginia Amends Provisions Regarding Uniform Power of Attorney Act
The state of West Virginia amended its provisions relating to its Uniform Power of Attorney Act relating to limiting the ability of an agent under a power of attorney to take self-benefiting actions. The amendment removes the presumption that an act is not within the scope of authority granted in a power of attorney when an agent benefits from the act to the detriment of an ancestor, spouse, heir, or descendant. The amendment also removes the prohibition of an agent from exercising authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise. These provisions are effective on June 8, 2018.
West Virginia Enacts Provisions Regarding Uniform Fiduciary Access to Digital Assets Act
The state of West Virginia enacted provisions relating to its Uniform Fiduciary Access to Digital Assets Act as well as updates to its power of attorney sample form. These provisions are effective on June 5, 2018.
The amendment creates the West Virginia Uniform Fiduciary Access to Digital Assets Act; provides a short title to the act and defines certain terms. The amendment sets forth to whom the article applies i.e. a fiduciary acting under a will or power of attorney, a personal representative acting for a decedent, a conservatorship proceeding, a trustee and a custodian if the user resides in the state.
The amendment provides for user direction for disclosure of assets with or without an online tool, addresses terms of service agreements, sets forth a procedure for disclosing digital assets by custodian, allows the custodian to assess reasonable administrative charges and to seek a court order when a request imposes an undue burden.
The amendment provides for disclosure of the content of electronic communications and other digital assets of deceased users and also provides for disclosure of content of electronic communications and digital assets of a principal by custodian. The amended provisions also address disclosure of electronic communications and digital assets held in trust when the trustee is not the original owner or user and address disclosure of digital assets to a conservator of a protected person.
Additionally, the amendment sets forth a fiduciary’s duties and authority, provides for a custodian’s compliance and immunity, provides for the uniformity of the application and construction of the article and addresses electronic signatures.
West Virginia Modifies Provisions Regarding Uniform Voidable Transactions Act
The state of West Virginia modified its provisions relating to its Uniform Voidable Transactions Act that include establishing requirements for evidence and burden of proof. These provisions are effective on June 8, 2018.
The amendment adds new and modifies existing definitions and establishes that a presumption imposes on the party against which the presumption is directed the burden of proving that the nonexistence of insolvency is more probable than its existence.
The amendment provides that a creditor making a claim for relief has the burden of proving the elements of the claim for relief by a preponderance of the evidence and also sets forth rules regarding the defenses, liability and protection of transferees.
The amendment establishes the governing law and sets down rules determining a debtor’s location. A debtor’s location is an individual’s principal residence for an individual debtor, a place of business for an organization that has only one place of business and a chief executive office for an organization that has more than one place of business. A claim for relief under this article is governed by the local law of the jurisdiction in which the debtor is located when the transfer is made or the obligation is incurred.
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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