Consumer creditors are often faced with incurring fees and/or other expenses incidental to the consumer's principle obligation that they believe should legitimately be passed on to the consumer. Many creditors who have attempted to collect these fees, however, have faced potential violations of the West Virginia Consumer Credit Protection Act, which presently bars debt collectors from the collection of or the attempt to collect any interest or other charge, fee, or expense incidental to the principle obligation unless such interest or incidental fee, charge, or expense is expressly authorized by the agreement creating or modifying the obligation and by statute or regulation. While a consumer may have expressly agreed to pay incidental fees and costs in the agreement creating the obligation, the WVCCPA severely limits those circumstances in which the creditor can actually recover the fees.
The proposed legislation would permit the recovery of these incidental fees and costs if the fee, charge, or expense is expressly authorized by the agreement or authorized by statute or regulation. Thus, if this ligation passes, the creditor consumer agreement alone would govern the rights of the parties with respect to the collection of incidental fees or expenses. In addition, proposed modifications to the statute would permit recovery of reasonable attorney's fees, court costs, and other reasonable collection costs and charges necessary for the collection of any past due consumer debt when the terms of the obligation so provide. Under the existing statute, such fees and costs are only recoverable on delinquent educational loans made by an institution of higher education within this state, and even then with limited recourse.