West Virginia Demand Letter

Introduction

Key Things to Know

1. 1

   West Virginia Code Section 46A-5-108(a) requires 45 days' written notice by certified mail, describing the alleged violation and its factual basis, before you may sue a seller, lender, or debt collector, including a creditor collecting its own consumer debt, for a violation of the West Virginia Consumer Credit and Protection Act's Articles 2, 3, 4, or 6; the 45 days runs from when you give that notice.

2. 2

   Within 45 days of receiving your notice, the recipient may make a cure offer, which you then have 20 days to accept; if you accept and the recipient performs the cure, Section 46A-5-108(e) makes that a complete defense to your claim, and the recipient can recover its own defense fees.

3. 3

   Because the Act defines debt collector to include any person or organization collecting a debt directly or indirectly, an original creditor sending its own demand letter is bound by the same anti-threat and anti-deception rules under Section 46A-2-124, -127, and -128 as a third-party collection agency, with no exemption for first-party creditors.

4. 4

   A demand letter must never threaten arrest to collect a debt, and may not threaten wage garnishment without disclosing that a judicial order permitting it must first be in effect; Section 46A-2-124(e) covers these threats for any debt collector, including a creditor collecting its own debt.

5. 5

   Under Section 46A-5-101(1), a court may impose a statutory penalty of $1,000 per violation of the Act's provisions on excess charges, security, disclosures, default charges, or a prohibited debt collection practice, capped at the greater of $175,000 or the total debt alleged; if the violation was willful, Section 46A-5-105 also lets the court cancel an unsecured debt.

6. 6

   If your claim involves a dishonored check, West Virginia Code Section 55-16-1(b) requires its own written demand at least 30 days before suit, describing the check and the dishonor and demanding payment, before you can recover the face amount plus damages of $500 or the face amount, whichever is less, plus your filing costs.

7. 7

   West Virginia gives ten years to sue on a written contract signed by the party to be charged and five years on an oral or implied contract (Section 55-2-6); claims within the Magistrate Court of West Virginia's $20,000 jurisdictional limit may be brought there, where an attorney is allowed to appear (Sections 50-2-1, 50-4-4a).

West Virginia Requirements for Demand Letter

• WVCCPA 45-Day Pre-Suit Notice

  West Virginia Code Section 46A-5-108(a) requires a consumer to give written notice by certified mail, describing the alleged violation and its factual basis, at least 45 days before filing suit against a seller, lender, or debt collector, including a creditor collecting its own consumer debt, under the Act's Articles 2, 3, 4, or 6.

• Cure Offer Is a Complete Defense

  Under Section 46A-5-108(e), if the recipient makes a cure offer within 45 days of receiving the notice and the consumer accepts and receives the cure, that is a complete defense to the claim, and the recipient may recover its own defense fees. Section 46A-5-108(c) tolls the statute of limitations for the 45-day notice period or the cure performance period, whichever is longer.

• Certified Mail to Registered Agent or Principal Office

  The Section 46A-5-108(a) notice must be sent in writing by certified mail, return receipt requested, to the recipient's registered agent on file with the West Virginia Secretary of State, or to its principal place of business if the recipient is unregistered.

• First-Party Creditors Bound by the Same Collection Rules

  West Virginia Code Section 46A-2-122(d) defines debt collector to include any person or organization collecting a debt directly or indirectly, so an original creditor collecting its own consumer debt is bound by the same anti-threat and anti-deception rules in Sections 46A-2-124, -127, and -128 as a third-party collection agency.

• Arrest Threats Barred; Garnishment Threats Restricted

  A demand letter must never threaten arrest to collect a debt; Section 46A-2-124(e) covers arrest and garnishment threats, and bars threatening wage garnishment without disclosing that a judicial order permitting it must first be in effect. Section 46A-2-124(b) separately bars threatening to accuse a person of fraud, a crime, or other disgraceful conduct to collect a debt.

• $1,000 Per-Violation Statutory Penalty

  A court may impose a statutory penalty of $1,000 per violation of the Act's provisions on excess charges, security, disclosures, default charges, or a prohibited debt collection practice, capped at the greater of $175,000 or the total debt alleged (Section 46A-5-101(1)). On a finding of a willful violation, the court may also cancel an unsecured debt (Section 46A-5-105).

• Dishonored Check 30-Day Demand and Penalty

  West Virginia Code Section 55-16-1(b) requires a written demand describing the check and its dishonor, delivered by personal service, certified mail, or regular mail with proof of mailing, at least 30 days before suit. Section 55-16-1(c) then allows recovery of the face amount of the check, less any partial payment, plus damages of $500 or the face amount, whichever is less, plus filing costs.

• Ten-Year Limitations Period for Signed Written Contracts

  West Virginia Code Section 55-2-6 gives ten years to sue on a contract in writing signed by the party to be charged and five years on an oral or implied contract, longer than the periods common in other states.

• Magistrate Court Jurisdiction and $20,000 Limit

  The Magistrate Court of West Virginia, Civil Division, hears civil actions up to $20,000, exclusive of interest and costs (Section 50-2-1), and permits a party to appear by an attorney with the same effect as appearing in person (Section 50-4-4a).