West Virginia Code of State Rules › Agency 142 - Attorney General › Title 142 - PROCEDURAL RULE ATTORNEY GENERAL › Series 142-05 - Prevention Of Unfair Or Deceptive Acts Or Practices In Home Improvement Transactions › Section 142-5-3 - Home Improvement Transactions

Current through Register Vol. XLI, No. 28, July 12, 2024
3.1. In connection with any home improvement
				transaction, and without limitation by enumeration, it is an unfair or
				deceptive act or practice for any seller to:
3.1.1. Fail to provide the buyer a written
				contract, describing in an meaningful way, and in "plain language" as required
				by W. Va. Code '46A-6-109,
				the goods or services purchased, the contract price together with all required
				financing information or credit terms and any other material terms as required
				by these rules or agreed to by the parties: Provided, however, That where the
				contract price is to be calculated on a "cost plus" basis, this fact shall be
				clearly and conspicuously set forth along with the method of calculating
				additions to cost and a good faith estimate of the eventual contract
				price;
3.1.2. Fail to provide an
				approximate completion date for all construction or improvements in the written
				contract unless the contract clearly and conspicuously discloses that no
				completion date is provided;
3.1.3.
				Fail to fill in all the relevant blank spaces in the written contract before it
				is signed by the buyer;
3.1.4. Fail
				to include the home improvement contractor's name, address, and telephone
				number on the contract;
3.1.5. Fail
				to include in the contract proper notification of the buyer's right to rescind
				if required pursuant to fifteen (15) U.S.C. '1635 and twelve (12) C.F.R.
				'226.15;
3.1.6. Fail to include in
				the contract all affirmations of fact, promises or description which constitute
				express warranties under the terms of W. Va. Code '46-2-313,
				or would so constitute express warranties if the sale of goods only were
				involved;
3.1.7. Disclaim, exclude,
				modify or otherwise attempt to limit any warranty, including the warranties of
				merchantability and fitness for a particular purpose, or to exclude, modify or
				attempt to limit any remedy provided by law, including the measure of damages
				available, for a breach of warranty, express or implied;
3.1.8. Fail to substantially perform the home
				improvement contract, absent material breach by the buyer, or to deviate from
				or disregard plans or specifications in any material respect without the
				written consent of the buyer;
3.1.9. Make any misrepresentation in the
				promotion, advertisement or sale of a home improvement contract or make any
				false promise of a character likely to influence, persuade or induce;
3.1.10. Represent to a prospective buyer that
				his dwelling or building is to serve as a lure for prospective buyers, "model
				home," "advertising job" or other similar inducement, and that a reduced price
				is offered for that reason, if such is not the case;
3.1.11. Violate the prohibition on referral
				sales in W. Va. Code '46A-2-110;
3.1.12. Fail to complete the home improvement
				by the completion date as stated in the home improvement contract unless such
				home improvement is delayed by events beyond the home improvement contractor's
				control or the buyer has agreed in writing to a later date;
3.1.13. Attempt to induce a buyer to sign any
				certificate or completion form before such home improvement or home
				construction is actually completed;
3.1.14. Fail to disclose that any goods being
				offered need additional attachments or fixtures in order to perform the
				functions claimed for them by the seller;
3.1.15. Unfairly or deceptively induce or
				persuade a buyer or prospective buyer to sign any writing when the seller knows
				or has reason to know that the buyer or prospective buyer is unable to read or
				write, or does not understand the terms of the instrument;
3.1.16. Represent that the buyer or
				prospective buyer has been specially selected to receive a bargain, discount or
				other advantage which will reduce the cost of the improvements or goods, when
				such is not the case;
3.1.17. Fail
				to disclose to a buyer or prospective buyer orally prior to the time of sale,
				and clearly and conspicuously in the written contract required in '3.1.1. of
				this Rule, that any promissory note or other instrument of indebtedness which
				must be executed by the buyer or prospective buyer, may be discounted,
				negotiated, or assigned to a finance company or other third party, and to
				clearly and conspicuously label any such instrument of indebtedness as a
				"Consumer Note";
3.1.18. Represent
				that the goods being offered are current models, when in fact, they are not
				current models, or are discontinued models;
3.1.19. Misrepresent the quality, capacity,
				character, nature, manufacturer, or composition of any goods;
3.1.20. Misrepresent or falsely state that
				the buyer's present equipment, materials, goods or fixtures are dangerous,
				defective or in need of repair or replacement;
3.1.21. Fail to clearly and conspicuously
				disclose that an advertised price or offer does not include delivery or
				installation;
3.1.22. Mislead the
				prospective buyer into believing that the down payment or some other figure
				constitutes the full amount the buyer will be obligated to pay, or to omit or
				exclude any other obligations, fees, charges or costs to the buyer;
3.1.23. Gain entry or access to the
				prospective buyer's home or property under the false guise of performing a
				governmental, public utility or other official inspection, or to represent that
				the seller is acting on behalf of or as an employee of any such entity, when
				such is not the case;
3.1.24.
				Represent that the seller is an employee, officer or representative of a
				manufacturer, importer or any other person, firm or organization, or that such
				person, firm or organization will assume some obligation in fulfilling the
				terms of the contract, when such is not the case;
3.1.25. Represent to a prospective buyer that
				the buyer is being given an introductory, confidential, close out, going out of
				business, factory or wholesale price discount, that a price discount is being
				made due to "materials leftover from a nearby job," a test of the local market
				or a market survey or to otherwise falsely claim that the prices offered are
				discounted, when such is not the case;
3.1.26. Utilize preprinted or form contract
				documents in a transaction solicited by the seller which are structured in such
				a way as to characterize or constitute the buyer as the offeror, thereby
				requiring the buyer to sign or signify assent to a proposal before it is
				binding on the seller;
3.1.27.
				Include in any contract or written document evidencing such a transaction a
				clause stating or suggesting that the seller's oral representations, promises,
				assurances, or the like, are not binding;
3.1.28. Include in any home improvement
				contract or written document evidencing such a transaction a clause requiring
				liquidated damages or the forfeiture of any deposit or any other amount already
				paid upon cancellation of the home improvement contract.
3.1.29. Fail to file a certificate in the
				office of the Clerk of the County Commission in the county in which the
				principal place of business of the seller is located, setting forth the assumed
				name in or by which the business is being conducted in conformity with the
				provisions of Chapter 47, Article 8, Section 2 of the code of West Virginia,
				1931, as amended.