The West Virginia Legislature, in an effort to alleviate the hardships placed upon sellers and lessors of goods by the increasing number of lawsuits and staggering litigation costs, amended §46A-6-102 and §46A-6-106 of West Virginia’s Consumer Credit and Protection Act to provide sellers and lessors with a right to cure where a “consumer” claims to have suffered a loss as a result of a “consumer transaction.” These sections involve consumer claims for “unfair methods of competition” or “unfair or deceptive acts or practices” against sellers or lessors.  

§46A-6-102 defines “consumer” as a “natural person to whom a sale or lease is made in a consumer transaction.” A “consumer transaction” means a sale or lease to a natural person or persons for a personal, family, household or agricultural purpose.” Thus, a consumer transaction encompasses most sales of goods to consumers in this state. This section also enumerates the specific acts or omissions, albeit in a general and vague manner, which constitute “unfair methods of competition” or “unfair or deceptive acts or practices.”

§46A-6-106 provides a cause of action by consumers against sellors and lessors for the prohibited acts enumerated by §46A-6-102 committed in a consumer transaction where those acts result in “any ascertainable loss of money or property” by the consumer. Venue for such actions lies in the circuit court in the county where the seller or lessor resides, has his or her principal place of business or is doing business. Venue also lies as provided for in § 56-1-1 and § 56-1-2, the venue statutes. A consumer may recover actual damages resulting from the prohibited conduct or two hundred dollars ($200.00), whichever is greater.

The Legislature attempted to afford sellers and lessors greater protection from such lawsuits by adding a right to cure. Section 46A-6-106 (2005) provides that consumer must first provide written notice via certified mail to the seller or lessor of the alleged violation. The seller or lessor then is provided twenty (20) days from the date of receipt of the notice to make a cure offer to the consumer, who then has ten (10) days to accept the cure offer or it is automatically deemed refused and withdrawn.

Should the consumer accept the cure offer, the seller and lessor have ten (10) days from the date of acceptance to begin making the cure and such cure must be completed within a “reasonable time.” The applicable statute of limitation is tolled for the greater of the twenty (20) day period allotted the seller or lessor after receiving a notice of claim or for the period of time that the agreed cure is being performed. A consumer is not foreclosed from bringing a civil action for failure to timely complete the cure.

Sellers and lessors are provided a complete or affirmative defense to any action brought by a consumer pursuant to the statute where the cure offer was “made, accepted and performed.” A consumer may be liable for the seller’s or lessor’s attorney’s fees and costs in defending the action if the fact finder, i.e. circuit court or jury, determines that a cure offer had been accepted by the consumer and performed by the seller or lessor.

Although the Legislature’s intentions were good for the business community by attempting to place the burden on the consumer to bear the seller’s or lessor’s attorney’s fees and costs, the practical effect of this provision likely will be to stifle acceptances of cure offers. Most consumer attorneys likely will err on the side of caution and counsel their clients not to accept a cure offer for fear of subjecting the consumer to paying the seller’s or lessor’s attorney’s fees and costs should the agreed cure later be deemed insufficient to compensate the consumer for his or her losses. 

This practical result, however, should not deter sellers or lessors from making cure offers where appropriate because a consumer’s refusal to accept a cure offer also has its disadvantages to consumers and their counsel. If a seller or lessor makes a cure offer to a consumer or his/her attorney prior to the filing of the seller’s or lessor’s initial responsive pleading in a lawsuit brought pursuant to the statute, then such a cure offer may be admitted by the seller or lessor into evidence at trial in an effort to show that the consumer was unreasonable or that his/her damage claim is inflated. To the contrary, proffering the cure offer into evidence also may suggest to the jury that the seller or lessor impliedly admitted wrongdoing and defense counsel should request a limiting instruction regarding the use of such evidence by the jury.

Another benefit to the seller and lessor from proffering a cure offer into evidence at trial is that the seller or lessor may not be liable for the consumer’s attorney’s fees and court costs incurred by the consumer after the cure offer was made. This protection to the seller and lessor applies only if the actual damages awarded by the jury to a consumer, excluding the amount of attorney’s fees and court costs, are greater than the value of the cure offer.

Sellers and lessors would be wise to promptly consider making a cure offer upon receipt of a notice of claim from a consumer in an effort to avoid unnecessary litigation fees and costs. They should also give careful consideration to the value of the cure offer to be made because such offer will form the threshold for determining whether the consumer will be entitled to recover his or her attorney’s fees and court costs from the seller or lessor.

These reforms, at a minimum, will require consumers and their attorneys to more carefully weigh any cure offer that is made and refrain from filing frivolous lawsuits. If consumers accept a cure offer and it is performed by the seller or lessor, then the consumer may be subjected to paying the seller’s or lessor’s attorney’s fees and costs in defending any subsequent lawsuit filed by the consumer as a result of that consumer transaction. On the other hand, if the consumer rejects the cure offer, then the seller or lessor can introduce that offer into evidence at trial and foreclose the consumer from recovering his/her attorney’s fees and costs if the damage award is less than the cure offer. Consumer attorneys, therefore, will be forced to more carefully screen potential claims and cure offers and err on the side of resolving questionable claims by cure or rejecting frivolous claims.