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Finding a Cure: The required time period to permit a defendant to cure consumer protection violations may be satisfied by the time it takes parties to brief a motion
November 27, 2017

On July 4, 2017, amendments to the West Virginia Consumer Credit and Protection Act (“WVCCPA”) took effect. One of those amendments requires a potential plaintiff to give a creditor or collector notice of alleged violations under the statute before the potential plaintiff can file a lawsuit against them. They then have 20 days to make an offer to cure the alleged violations, and the potential plaintiff has 20 days thereafter to decide whether to accept it.

Recently, a federal court interpreted this amendment in deciding whether to grant a plaintiff’s motion to amend her complaint. In Henry v. Ocwen Loan Servicing, LLC, 2017 WL 5503718, the plaintiff had filed a lawsuit against Ocwen before the 2017 amendment took effect. After it took effect, the plaintiff filed a motion asking the court to allow her to amend her complaint to assert additional claims. The plaintiff attached a proposed amended complaint to her motion.

Ocwen opposed the plaintiff’s motion on a couple grounds, including its argument that the plaintiff was prohibited from asserting new claims unless she gave Ocwen notice of those claims and gave it 20 days to make a cure offer. The court disagreed and granted the plaintiff’s motion. Among the grounds on which it relied was the fact the plaintiff’s motion was on file for more than 20 days before the court ruled on it, thereby giving Ocwen more than 20 days to make a cure offer.

This decision is important because courts have not yet issued many decisions interpreting the 2017 amendments to the WVCCPA. The Henry court stated it was not deciding whether the assertion of new claims by way of an amended complaint (as opposed to the assertion of a new lawsuit altogether) triggered the notice requirement. However, if courts interpret the Henry case broadly and hold the time period that a motion is pending can satisfy the 20-day period to make a cure offer, then we would expect plaintiffs to start arguing the 20 to 30 days a defendant is given to respond to a new lawsuit satisfies the notice requirement under the amendments. That approach seems to nullify the purpose of the amendment.

If you have any questions, please contact us.

Consumer Finance Nicholas P. Mooney II
304.340.3860
nmooney@spilmanlaw.com