or surplus.
**Clerk's NOTE: This section was amended to bring it into conformity with the newly
enacted article nine, chapter forty-six, which will take effect July 1, 2001.**
(a) This section applies to the following transactions:
(1) Transactions in which a purchase money security interest is taken in collateral which is
being purchased primarily for a personal, family, household or agricultural purpose;
(2) Transactions in which a security interest is taken in collateral which was used primarily
for a personal, family, household or agricultural purpose prior to the giving the security
interest; or
(3) Transactions in which a security interest is taken in collateral for a debt that was
incurred primarily for a personal, family, householdl or agricultural purpose.
(b) This section takes effect on July 1, 2002, and is applicable notwithstanding the provisions
of:
(1) Section six hundred ten, article nine, chapter forty-six of this code, providing that
disposition may only be by certain public or private sale, lease or license procedures;
(2) Section six hundred ten, article nine, chapter forty-six of this code, requiring that those
procedures be commercLially reasonable;
(3) Section six hundred fifteen, article nine, chapter forty-six of this code, providing for the
application of the proceeds;
(4) Section six hundred twenty, article nine, chapter forty-six of this code, requiring
dispWosition by sale, lease or license in certain circumstances; and
(5) Section six hundred two, article nine, chapter forty-six of this code, providing that these
sections may not be waived or varied by agreement.
(c) For purposes of this section, the term "debtor" shall be deemed to refer collectively to
each person who is indebted to a secured creditor in connection with a consumer lease or
consumer loan, whether the person's obligation arises as a comaker, endorser or guarantor
of the lease or loan.
(d) After a default by the debtor and after the secured creditor takes or receives possession
of collateral or makes collateral unusable as provided in section six hundred nine, article
nine, chapter forty-six of this code, the secured creditor may send a written proposal to the
debtor setting forth a value for the secured creditor's collateral which value, less any
expenses of taking and holding the collateral, shall be credited against the debtor's
obligation to the secured creditor. The written proposal must explain that:
(1) The proposal becomes effective only if the debtor agrees to it in writing but the debtor is
not required to agree to the written proposal;
(2) If the debtor does not agree to the proposal in writing, then the goods which are the
subject of the written proposal will be disposed of in a "commercially reasonable" manner by
the secured creditor in accordance with applicable law, and the amount received from the
disposition of the collateral, less the expenses of taking and holding the collateral, preparing
the collateral of the sale or lease, and selling the collateral, will be the amount credited
against the debtor's obligation to the secured creditor when calcuulating the deficiency owed
by the debtor to the secured creditor or the surplus owed by the secured creditor to the
debtor; t
(3) If the debtor agrees to the written proposal, then thae debtor will thereby release and
waive any claims against the secured creditor that the disposition of the collateral was not
commercially reasonable or was otherwise impropelr; and
(4) The written proposal may set forth a date and time by which the debtor's written
agreement must be received by secured crieditor in order for the agreement to become
effective. g
(5) The following form, when reproduced on a single sheet of paper with no other statements
or agreements and accurately completed, meets the requirements of this section even if it
contains typographical or other minor errors that are not misleading:
[Name and address of secured party]
[Date] V
TO: [Name and address of debtor]
OFFER TO CREDIT PRICE GUIDE VALUE
We have possession of your ("property") (or we have made it unusable by you), because you
broke the terms of our agreement.
By law, we may sell, lease or license this property in any commercially reasonable manner. If
we choose to sell the property at a public sale we will give you notice of the date, time and
place of the sale and you may attend the sale and bring bidders if you want. If we choose to
sell the property at a private sale we will give you notice of the date after which the sale will
take place. From the money we are paid from the sale of the property, we may subtract our
expenses in getting the property from you, storing it, preparing and selling, leasing or
licensing it. The sale money left over after these expenses are subtracted will then be
subtracted from what you owe us. If we receive less money than you owe, you will still owe
us the difference. If we receive more money than you owe, you will get the extra money back
(unless we are required to pay it to someone else).
Instead of selling, leasing or licensing this property, we are now offering to subtract the
amount of $from what you owe us. We have calculated this amount by adding the retail value
of the property of $and the § value of the property of $ and dividing that total by 2 ("value
amount"). These values were obtained from _____________, a price guide in general use as of
the date we got possession of or rendered the property unusable by you. Froem the value
amount we have subtracted our expenses of $in taking back the property from you, and our
expenses of $for storing the property through the date below by which ryou must respond to
this offer.
You do not have to accept this offer. To agree to our offer, you must sign this notice at the
bottom no sooner than one day after the date on which you rteceived this offer and deliver it
or have it delivered to us before. If you agree to this offer, you are giving up any right to
hold us liable for the way that we sell, lease or otherwise dispose of the property and
account for the proceeds.
You can get the property back at any time befsore you accept this offer or we sell, lease or
license the property by paying us the full amount you owe (not just the past due payments),
including our expenses so far. To learn the exact amount you must pay, you may call us at. If
you want us to explain to you in writging how we calculated the amount that you owe us, you
may call us at or write us at and request a written explanation.
[We are sending this notice to the following other people who owe money under our
agreement. They will also have to agree to our offer or we will sell the property as we
normally do.
[Names of all other debtors and obligors, if any]]
I accept the offer:
Signed ___________________________
Date of signature ___________________
[End of Form]
(e) (1) The value of the collateral set forth in the written proposal shall be determined from
any price guide used generally by persons who are not purchasers or lessees of that type of
collateral and who insure, lend money for the purchase of, lease or otherwise deal in goods
of the same type as the collateral when it would be to the advantage of the user for the price
guide to have higher values.
(2) The value of the collateral set forth in the written proposal shall be determined as of the
date the secured party took possession of the collateral, received possession of the collateral
or rendered the collateral unusable.
(3) For a motor vehicle, as that term is defined by section one, article one, chapter
seventeen-a of this code, the value of the motor vehicle collateral shall be calculated by
adding together the retail value and the trade-in value for the motor vehicle and dividing
that sum by two.
(4) For a manufactured home, mobile home or house trailer, as those terms are defined in
section one, article six, chapter seventeen-a of this code, which at the time oef default was
located on a lot owned by the debtor, an obligor or a person related to the debtor, the value
of the manufactured home, mobile home or house trailer collateral shalrl be calculated by
adding together the retail value and the wholesale value designated for the manufactured
home that is moved for resale, mobile home or house trailer and dividing that sum by two.
(5) For a manufactured home, mobile home or house trailer,t as those terms are defined in
section one, article six, chapter seventeen-a of this code, which at the time of default was
located on a lot owned by a person or organization in the business of renting or leasing lots
or on a lot owned by a person who is not the debtor, an obligor or a person related to the
debtor or obligor, the value of the manufactured home, mobile home or house trailer
collateral shall be calculated by adding togethser the retail value and the wholesale value
designated for collateral that is offered for sale without moving the collateral from its
current location, and dividing that sum by two.
(6) For other personal property, the value of the collateral shall be calculated by adding
together the used retail value eand the highest listed wholesale value for the property and
dividing that sum by two.
(f) If the debtor agrees in writing to the written proposal within the time period prescribed
by the secured creditor, then:
(1) The collateral value as calculated in subsection (e) above, less any expenses of taking and
holding the collateral, shall be applied to the indebtedness as provided in section six
hunWdred fifteen, article nine, chapter forty-six of this code;
(2) Any expenses incurred by the secured creditor in the actual sale or lease of the collateral
or preparing the collateral for sale or lease may not be charged to the debtor but must be
born by the secured creditor; and
(3) The secured creditor is not required to dispose of the collateral in a commercially
reasonable manner and is not liable for any failure to comply with any law of this state
relating to the disposition of the collateral or application of the proceeds.
(g) The written agreement of the debtor is not valid unless it is signed by the debtor on or
after the next calendar day after it is received by the debtor or the second calendar day after
it was sent to the debtor.
(h) If the debtor is more than one person, then the secured creditor must send the proposal
described in subsection (d) of this section to all such persons. If any one of the persons
indebted to a secured creditor on a consumer lease or consumer loan does not agree in
writing to the proposal or does not respond timely to the proposal, then the secured creditor
must proceed with a sale or other disposition of its collateral as provided in article nine,
chapter forty-six of this code.
(i) If a person other than the debtor has a recorded ownership interest in preoperty securing
the debtor's obligation to a secured creditor and such other person is not also indebted to
the secured creditor on such obligation, then the secured creditor mustr send a copy of the
proposal described in subsection (d) of this section to such other person but is not required
to obtain such other person's consent or agreement to the proposal in order to effect the
proposal.
(j) Upon receipt of the debtor's executed acceptance of a written proposal described in
subsection (d) of this section, title to the collateral described in the proposal shall be deemed
to pass to the secured creditor unless such collateral is a vehicle, manufactured home,
mobile home or house trailer.
(k) Upon presentation of the debtor's executed acceptance of a written proposal described in
subsection (d) of this section to the department of motor vehicles and a certificate of title to
the debtor's vehicle, manufactured hgome, mobile home or house trailer described in the
written proposal, the department of motor vehicles shall issue a new certificate of title to the
vehicle, manufactured home, meobile home or house trailer in the name of the secured
creditor as the owner thereof.
(l) Nothing in this section may be construed to create, directly or indirectly, or impose a duty
on the secured creditor to make a written offer or give notice under this section. A secured
creditor's failure to make a written proposal shall not subject the secured creditor to any
liability to the debtor or any other person.
(m)W The provisions of this section may not be waived or varied.‹ Prev All West Virginia sections Next ›
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