Pub. 12 2021 Issue 2

www.wvbankers.org 32 West Virginia Banker WVCCPA Finds Its Equilibrium By David E. Chaney and Peter J. Raupp, Steptoe & Johnson PLLC O n March 29, 2021, Governor Jim Justice signed into law Senate Bill 5, which amended the West Virginia Consumer Credit and Protection Act (“WVCCPA”). The amendments were met with optimism by businesses in West Virginia as they provide enhanced procedures intended to deter frivolous lawsuits. Initially enacted in 1974, the stated purpose of the WVCCPA was to “protect the public and foster fair and honest competition.” However, since its enactment, the WVCCPA has been criticized for its notoriously consumer- friendly application. As amended, the WVCCPA provides (1) criteria for a court to evaluate reasonable attorney’s fees and expense awards to the consumer; (2) an explicit process for an offer to settle or offer of judgment; (3) an avenue for the recovery of attorney’s fees from plaintiffs in the event for finding a claim was frivolous or made in bad faith or upon rejection of a settlement without justification; and (4) a unified mechanism for pre-suit notices of violation and offers to cure. The new amendments to the WVCCPA intend to help equalize the positions of the consumer plaintif f and defendant in claims brought under the WVCCPA in several ways. First, the amendments provide 12 factors a court should examine to determine reasonable attorney’s fees and expenses to the consumer plaintiff. The court will utilize these 12 factors when determining reasonable attorney’s fees and expenses for the defendant when a plaintiff consumer has brought a claim in bad faith or for harassment. Second, the amendments provide a mechanism to make an offer of judgment. The amendments seek to penalize a consumer plaintiff who rejects a reasonable offer of judgment. If the final judgment is one of no liability or if the final judgment, inclusive of all actual damages, civil