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Failing to Satisfy a Pre-Suit Notice Requirement in a Consumer Lawsuit May Not be Fatal to the Consumer’s Claims
May 10, 2019
In our last article, we discussed the pre-suit notice requirements in the West Virginia Consumer Credit and Protection Act, one of the primary consumer protection statutes under which plaintiffs bring claims related to consumer loans, leases, and credit sales. Recently, one defendant moved to dismiss a case based on an alleged failure in a pre-suit notice and learned that not only was the notice adequate, but the failure to provide a notice may not be fatal to a consumer’s claims.
Effective July 4, 2017, a new pre-suit notice requirement was added to the act by way of a new statute section, W. Va. Code § 46A-5-108. It provides that “[n]o action may be brought pursuant to this article and articles two, three, and four of this chapter until the consumer has informed the creditor or debt collector in writing . . . of the alleged violation and the factual basis for the violation.”  “This article” refers to Article 5, which provides a consumer the ability to bring a private cause of action under several parts of the act. Accordingly, by its terms, a consumer appears to be precluded from bringing a lawsuit until that consumer gives the creditor or debt collector a pre-suit notice of the alleged violations. Later parts of section 5-108 provide the time period within which a creditor or debt collector may respond as well as other aspects of the notice procedure.
Recently, a federal court in West Virginia was faced with a motion to dismiss by a defendant that claimed a class of consumers had failed to provide an adequate pre-suit notice. The consumers had provided a notice, which stated the factual bases for the alleged claims and the sections of the act they claimed had been violated. However, the defendant argued the consumers’ notice was ineffective because it failed to reference the fact that one of the cited sections of the act had changed.
Not surprisingly, the court found the consumers’ notice was adequate to satisfy section 5-108’s requirements. However, before making that finding, the court ruled the pre-suit notice requirement in section 5-108 was not jurisdictional in nature. In other words, the failure to satisfy the pre-suit notice requirement may not be fatal, and a consumer's lawsuit nonetheless may be permitted to proceed. In so finding, the court looked to pre-suit notice requirements in medical malpractice lawsuits and the state supreme court’s ruling that “dismissal [of a lawsuit] is not always the appropriate remedy for deficiencies in the pre-suit notice.”
One is left to wonder why the defendant challenged the pre-suit notice in this case. The consumers provided a notice, and, unlike many notices that purport to be served pursuant section 5-108, the notice in this case actually gave information about the factual bases for the alleged violations and the applicable sections of the act. 
Pre-suit notices pursuant to section 5-108 should be required, as the statute provides, especially since section 5-108 provides that a plaintiff who rejects an offer and does not recover more at trial than the defendant offered, in certain circumstances, may not recover his or her attorney’s fees from the defendant. Removing the requirement of a pre-suit notice nullifies this part of the act and removes this protection for a defendant.
Please contact us if you would like to talk more about pre-suit notice requirements in consumer lawsuits or any other aspect of consumer litigation in West Virginia. Please remember this article is for information only. It is not legal advice.
Consumer Finance Nicholas P. Mooney II