Pub. 12 2021 Issue 2

www.wvbankers.org 10 West Virginia Banker Three Ways the Legislature Has Redefined Consumer Litigation in West Virginia By Nicholas P. Mooney II, Spilman Thomas and Battle D uring the 2021 legislative session, the West Virginia Legislature once again amended the West Virginia Consumer Credit and Protection Act, one of the primary statutes under which consumers sue creditors, collectors and others. For years, the Act stood substantially in its original form since its 1974 passage. In 2015, the Legislature began amending the Act every year to do the following, among other things: • Reduce the statute of limitations; • Reduce the number of penalties per violation; • Impose explicit call volume caps; • Impose qualifications on how consumers give notice of being represented by an attorney; and • Impose a pre-suit notice requirement. This year, the Legislature considered several bills aimed at further amending and in some instances, restricting the Act. Some of those bills did not pass, but one significant bill did, and its provisions became effective June 16, 2021. It changes consumer litigation in three critical ways. 1. Guidance on Awarding Attorney’s Fees The Legislature has brought clarity and guidance to trial courts deciding whether to award a party attorney’s fees and expenses in action brought under the Act. Before the new law, the Act merely told trial courts they could award “reasonable” attorney’s fees and expenses to a consumer and award the same to a defendant if it was a bad faith action brought for the purpose of harassment. The new law requires trial courts to conduct a “lodestar” analysis and examine the following factors in determining the amount of fees and expenses to award: • The time and labor required; • The novelty and difficulty of the questions; • The requisite skill to perform the legal service properly; • Preclusion of other employment by the attorney due to acceptance of the case; • The customary fee; • Whether the fee is fixed or contingent; • Time limitations imposed by the client or the circumstances; • The amount involved and the amount of the judgment and any nonmonetary relief obtained; • The experience, reputation and ability of the attorneys; • The undesirability of the case; • The nature and length of the professional relationship with the client; and • Awards in similar cases. 2. Revisions to the Pre-Suit Notice Requirement Before the new law, the Act included a provision that required a consumer to give pre-suit notice to a defendant and allow that defendant to make a cure offer. If the cure offer was not Continued on page 12