Consumer Protection UDAP Demand Letter — West Virginia

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WEST VIRGINIA CONSUMER PROTECTION UDAP DEMAND LETTER

Quick-Reference Summary

Sender Letterhead

[SENDER / LAW FIRM NAME]
[________________________________]
[Street Address]
[________________________________]
[City], West Virginia [ZIP]
Telephone: [________________________________]
Email: [________________________________]
WV State Bar I.D. No.: [____________] (if attorney)

Date and Recipient

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED (required by W. Va. Code § 46A-5-108(a))
Tracking No.: [________________________________]

AND VIA EMAIL TO: [________________________________] (as courtesy only; certified mail is the statutory method)

TO (Registered Agent identified at the WV Secretary of State, OR if not registered, then to principal place of business — § 46A-5-108(a)):

[Name of Registered Agent or Officer]
[Name of Respondent / Business Entity]
[________________________________]
[Street Address]
[________________________________]
[City], [State] [ZIP]

Subject Line / Re: Block

Re: STATUTORY NOTICE OF VIOLATION AND DEMAND UNDER W. VA. CODE § 46A-5-108 — West Virginia Consumer Credit and Protection Act, W. Va. Code § 46A-1-101 et seq. (specifically Article 6, § 46A-6-101 et seq.)
  Consumer: [________________________________]
  Transaction / Account No.: [________________________________]
  Date(s) of Transaction: [__/__/____] to [__/__/____]
  Actual Out-of-Pocket Loss: $[____________]
  Total Amount Demanded (Including Statutory Damages, Civil Penalties, and Fees): $[____________]

THIS LETTER IS THE PRE-SUIT NOTICE REQUIRED BY W. VA. CODE § 46A-5-108 BEFORE ANY ACTION MAY BE FILED UNDER THE WVCCPA. NO ACTION WILL BE FILED FOR 45 DAYS AFTER YOUR RECEIPT OF THIS LETTER, DURING WHICH TIME YOU MAY MAKE A CURE OFFER UNDER § 46A-5-108(a).

I. Parties

Consumer:
[Full legal name]
[Residence address]
[________________________________]
[City], West Virginia [ZIP]

The Consumer is a natural person residing in [County] County, West Virginia, who purchased or leased the goods or services described below.

Respondent (Creditor / Debt Collector / Seller / Lessor):
[Full legal name of respondent]
[Type of entity]
[State of formation]
[Principal place of business]
[Registered agent for service in WV — confirmed at WV Secretary of State Business Search]

At all relevant times Respondent was engaged in trade or commerce in West Virginia by [describe nature of business].

II. Factual Background

§ 46A-5-108(a) requires that this notice state the "alleged violation and the factual basis for the violation." The facts below are provided in compliance with that requirement.

1. On or about [__/__/____], the Consumer [describe initiating contact or transaction].

2. Respondent represented to the Consumer that [________________________________].

3. In reliance on those representations, the Consumer [describe action — e.g., paid $[____________]; signed the agreement attached as Exhibit A; financed the transaction].

4. Contrary to Respondent's representations, the actual facts were that [________________________________].

5. Specific alleged violations of W. Va. Code § 46A-6-104 (incorporating § 46A-6-102 definitions):

  a. [Specific deceptive act — e.g., "Representing that goods or services have characteristics... that they do not have" — § 46A-6-102(7)(E)];

  b. [Specific deceptive act — e.g., "Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding" — § 46A-6-102(7)(M)];

  c. [Specific unfair/unconscionable act — describe];

  d. [If applicable, claims under other WVCCPA articles — e.g., illegal debt-collection conduct under § 46A-2-127, unauthorized communications under § 46A-2-128];

  e. [Additional acts].

6. Ascertainable loss and actual out-of-pocket loss (§ 46A-6-106(a)-(b)): As a direct and proximate result of Respondent's conduct, the Consumer suffered ascertainable loss and an actual out-of-pocket loss of $[____________], consisting of [itemize: purchase price, finance charges, repair costs, interest, fees].

7. Causation (§ 46A-6-106(b)): Respondent's affirmative misrepresentation(s) [and/or concealment/omission(s)] caused the Consumer to enter into the transaction that resulted in the Consumer's damages.

III. Statutory Demand

Pursuant to W. Va. Code § 46A-5-108(a), the Consumer hereby provides Respondent with notice of the alleged violation and the factual basis for the violation, and demands that Respondent make a cure offer within forty-five (45) days of receipt of this letter in the following form (or such alternative cure as is reasonably acceptable):

☐ Refund the full amount paid plus interest in the amount of $[____________];

☐ Rescind the contract dated [__/__/____] and restore the Consumer to the position the Consumer occupied before the transaction;

☐ Repair or replace the [goods/services] at Respondent's sole expense within [____] days;

☐ Cease and desist from the unfair and deceptive practices identified above;

☐ Pay the Consumer's reasonable attorney fees and costs incurred to date in the amount of $[____________] (recoverable under § 46A-5-104);

☐ Preserve all evidence relating to this matter (see Section V below); and

☐ Other: [________________________________].

The Consumer will have twenty (20) days from receipt of any cure offer to accept it, after which the offer is deemed refused and withdrawn (§ 46A-5-108(a)). Any cure offer must be delivered to the undersigned by certified mail, return receipt requested. The 45-day period set forth in § 46A-5-108(a) tolls any applicable statute of limitations under § 46A-5-108(c).

IV. Damages and Remedies If Not Cured

If Respondent fails to make a satisfactory cure offer within 45 days, or if the cure offer is materially deficient, the Consumer will file suit in the Circuit Court of [County] County, West Virginia, where venue is proper under § 46A-6-106(a) and § 46A-1-104, seeking the following relief:

The Consumer further reserves the right to assert (i) common-law claims for fraud, breach of contract, breach of warranty, and unjust enrichment; (ii) claims under the federal Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.; (iii) claims under any other applicable WVCCPA article (e.g., § 46A-2 debt-collection violations); and (iv) the right to file a complaint with the West Virginia Attorney General's Consumer Protection Division.

Notice regarding § 46A-5-108(f): A timely cure offer that, if accepted and performed, would exceed the damages and equitable relief the Consumer ultimately obtains at judgment, may cut off the Consumer's right to recover post-offer attorney fees and costs. The Consumer therefore expects any cure offer to be made in good faith and to reflect the full ascertainable loss and out-of-pocket damages identified above.

V. Litigation Hold / Evidence Preservation Notice

Respondent and its officers, directors, employees, agents, attorneys, affiliates, successors, and any third parties acting on its behalf are hereby placed on formal notice to preserve all evidence that may be relevant to this dispute, including:

☐ All contracts, agreements, retail-installment sales contracts, loan documents, security agreements, invoices, receipts, work orders, and purchase/lease records relating to the Consumer's transaction;

☐ All advertising, marketing, sales scripts, training materials, and website content concerning the goods or services at issue (including archived Wayback versions);

☐ All written, electronic, and recorded communications with the Consumer (emails, SMS, voicemails, recorded debt-collection calls, chat logs);

☐ All internal communications referencing the Consumer or the practices at issue;

☐ Account notes, collection logs, call recordings, dialer logs, automated dialing system records, and call disposition codes;

☐ Complaint logs, customer service notes, BBB complaints, WV AG inquiries, and CFPB complaints involving similar conduct;

☐ Financial records reflecting amounts charged, refunded, or credited;

☐ Backup tapes, cloud storage, and any data scheduled for routine destruction; and

☐ All documents identified in any document-retention or litigation-hold policy.

Spoliation may result in adverse-inference instructions, monetary sanctions, and other remedies under West Virginia law. See Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003).

VI. Response Deadline and Method

Pursuant to W. Va. Code § 46A-5-108(a), Respondent has FORTY-FIVE (45) calendar days from receipt of this letter to deliver a written cure offer by certified mail, return receipt requested, to the undersigned. The Consumer is not required to file suit, and will not file suit, before [__/__/____] (45 days from anticipated receipt).

Direct all responses and cure offers to:

[Name of Sender / Counsel]
[________________________________]
[Street Address]
[________________________________]
[City], West Virginia [ZIP]
Email: [________________________________]
Telephone: [________________________________]

If Respondent is represented by counsel, please have counsel contact the undersigned directly; no further communication should be made directly with the Consumer.

If no cure offer is received within 45 days, or if the cure offer is inadequate and is deemed refused after 20 days, the Consumer will proceed to file suit under the WVCCPA seeking all available statutory damages, civil penalties, attorney fees, costs, equitable relief, and jury trial.

Signature Block

Respectfully,

_______________________________________
[Name of Sender / Attorney]
[Title — Consumer / Attorney for Consumer]
[Law Firm, if applicable]
WV State Bar I.D. No.: [____________] (if attorney)
[Street Address]
[________________________________]
[City], West Virginia [ZIP]
Telephone: [________________________________]
Email: [________________________________]

Enclosures:
☐ Exhibit A — [Contract / Loan Documents / Invoice / Receipt]
☐ Exhibit B — [Advertisement / Written Representation]
☐ Exhibit C — [Photographs / Inspection Report]
☐ Exhibit D — [Prior correspondence with Respondent]
☐ Exhibit E — [Itemized damages calculation]
☐ Exhibit F — [Records demonstrating debt-collection or other WVCCPA Article violations, if applicable]
☐ Exhibit G — [Other supporting documentation]

cc:
☐ West Virginia Attorney General — Consumer Protection Division, State Capitol Complex, Bldg. 1, Room E-26, Charleston, WV 25305
☐ Better Business Bureau serving West Virginia
☐ Consumer Financial Protection Bureau (if financial product)
☐ Client file

Pre-Send Checklist

☐ Verified that all W. Va. Code citations remain current (WV Legislature: https://code.wvlegislature.gov/).
☐ Confirmed Respondent is a "creditor, debt collector, seller, or lessor" subject to the WVCCPA.
☐ Confirmed conduct constitutes a violation under § 46A-6-104 (using § 46A-6-102 definitions) AND/OR another WVCCPA article.
☐ Confirmed Consumer has "ascertainable loss" AND "actual out-of-pocket loss" proximately caused by the violation (§ 46A-6-106(b)).
☐ Identified the correct registered agent at WV Secretary of State Business Search (https://apps.sos.wv.gov/business/corporations/), OR — if no registered agent — the principal place of business (§ 46A-5-108(a)).
☐ Sent BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED as required by § 46A-5-108(a) — email alone is insufficient.
☐ Notice explicitly states (i) the alleged violation and (ii) the factual basis (§ 46A-5-108(a)).
☐ Calendared 45-day cure period from receipt before any complaint may be filed.
☐ Confirmed statute of limitations is tolled during the 45-day period (§ 46A-5-108(c)) — recompute SOL deadline.
☐ Anticipated possible cure offer and evaluated good-faith floor relative to actual damages (§ 46A-5-108(f) risk).
☐ Retained the certified-mail tracking number, return receipt, and dated copies of the letter and every enclosure.
☐ Diary date for the 45-day cure deadline, 65-day post-receipt date (45 + 20 for cure acceptance), and 70-day litigation readiness check.
☐ Considered parallel complaints to WV AG Consumer Protection, BBB, CFPB, FTC.
☐ Reviewed contract for arbitration clauses, class-action waivers, choice-of-law, choice-of-forum.
☐ Removed all <!-- GUIDANCE --> comments and bracketed instructions before sending.
☐ Reviewed by a West Virginia-licensed attorney prior to transmission.

Sources and References

• West Virginia Consumer Credit and Protection Act — WV Code Chapter 46A: https://code.wvlegislature.gov/46A/
• W. Va. Code § 46A-5-108 (Right to Cure / Pre-Suit Notice, as amended effective June 16, 2021): https://code.wvlegislature.gov/46A-5-108/
• W. Va. Code § 46A-5-101 (Civil Liability — annually adjusted statutory penalties): https://code.wvlegislature.gov/46A-5-101/
• W. Va. Code § 46A-5-104 (Attorney fees; lodestar factors): https://code.wvlegislature.gov/46A-5-104/
• W. Va. Code § 46A-6-102 (Definitions): https://code.wvlegislature.gov/46A-6-102/
• W. Va. Code § 46A-6-104 (Unlawful acts or practices): https://code.wvlegislature.gov/46A-6-104/
• W. Va. Code § 46A-6-106 (Private causes of action): https://code.wvlegislature.gov/46A-6-106/
• West Virginia Attorney General — Consumer Protection Division: https://ago.wv.gov/consumerprotection/
• WV Secretary of State — Business & Licensing (entity / registered-agent search): https://apps.sos.wv.gov/business/corporations/
• 2021 WVCCPA Amendments (Spilman Thomas & Battle analysis): https://www.spilmanlaw.com/resource-article/three-ways-the-legislature-has-redefined-consumer-litigation-in-west-virginia/
• Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003) (spoliation)