Articles Posted in Consumer Law

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West Virginia’s consumer credit protection statute does not regulate the residential rental fees a landlord may charge a tenant pursuant to a lease for residential real property. The Attorney General filed a civil action against Defendant Landlord, one of the largest residential lessors in the state, alleging that Landlord’s residential leases included fees and charges that violated the West Virginia Consumer Credit and Protection Act (CCPA), W.Va. Code 46A-1-101 et seq. Landlord filed a motion to dismiss on the grounds that the CCPA does not apply to residential leases. The circuit court denied the motion. Thereafter, the circuit court certified to the Supreme Court the question of whether the CCPA applies to the relationship between a landlord and tenant under a residential lease. The Supreme Court answered the question in the negative. View "State ex rel. Morrisey v. Copper Beech Townhome Communities Twenty-Six, LLC" on Justia Law

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In this dispute concerning a liability insurance policy, the Supreme Court granted relief in prohibition to State Auto Property Insurance Companies, holding that State Auto was entitled to a dismissal of CMD Plus, Inc.’s third-party complaint as a matter of law. When Plaintiffs filed an action against CMD, a residential construction company, seeking recovery for damages to their house and property, CMD filed a third-party complaint against State Auto, its insurer, alleging that State Auto delayed investigating Plaintiffs’ claim, settling Plaintiffs’ lawsuit, and indemnifying CMD. In this petition for a writ of prohibition, State Auto challenged the circuit court’s denial of its motion for summary judgment. The Supreme Court held that relief in prohibition was warranted because the record showed that State Auto defended and indemnified CMD throughout the lawsuit as required by the commercial general liability policy, and the terms of the policy provided no coverage to CMD for damage to its own property. View "State ex rel. State Auto Property Insurance Cos. v. Honorable James C. Stucky" on Justia Law

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Sue Walters filed a lawsuit against Quicken Loans, Inc., alleging that Quicken Loans violated the “illegal loan” provision of the West Virginia Residential Mortgage Lender, Broker and Servicer Act, W. Va. Code 31-17-8(m)(8), in originating a primary mortgage loan for her. A jury found in favor of Walters and awarded her damages in the amount of $27,000. Walters sued additional defendants - an appraiser and the entity that serviced the loan - with whom she settled. In total, the court offset $59,500 of the $98,000 paid by the settling defendants against the total damages, costs and fees awarded against Quicken Loans. The Supreme Court affirmed in part, reversed in part and remanded, holding that the circuit court (1) did not err in allowing the illegal loan claim to go to the jury, as section 31-17-8(m)(8) applies to a single primary mortgage loan; (2) did not err in ruling that Walters was a prevailing party and thus entitled to an award of fees and costs; (3) erred in offsetting only a portion of the settlement monies received from the settling defendants against the total compensatory damages received by Walters. View "Quicken Loans, Inc. v. Walters" on Justia Law

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The volume of telephone calls made by a debt collector to a consumer, absent any other evidence of intent to annoy, abuse, oppress or threaten, is not sufficient to establish a violation of W. Va. Code 46A-2-125(d). Plaintiff-consumer filed suit against Defendant-debt collector. The circuit court ruled that 230 unanswered collection calls Defendant placed with Plaintiff violated section 46A-2-125(d) and awarded Plaintiff damages. The Supreme Court reversed after noting that the telephone calls continued because Plaintiff never answered the calls and never informed Defendant that he contested the debt, holding (1) the volume of unanswered calls in this case did not establish intent in violation of section 46A-2-125(d); and (2) therefore, the circuit court’s ruling is deficient as a matter of law. View "Valentine & Kebartas, Inc. v. Lenahan" on Justia Law

Posted in: Consumer Law

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The Supreme Court affirmed the circuit court’s ruling that Petitioner was not a “consumer” within the applicable definitions of the West Virginia Consumer Credit and Protection Act. The circuit court granted summary judgment to Respondent, a debt collector, concluding that Petitioner lacked standing to seek relief under the Act because Petitioner did not have any specific debt in connection with the calls that Respondent made to her land line phone. The Supreme Court affirmed, holding (1) Petitioner clearly did not come within the definition of “consumer” set forth in the Act, and (2) therefore, the circuit court correctly ruled that Petitioner lacked standing to pursue a claim under the Act. View "Young v. EOSCCA" on Justia Law

Posted in: Consumer Law

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In 2013, the decedent filed a complaint alleging violations of the West Virginia Consumer Credit and Protection Act and other causes of action against Respondent, Professional Bureau of Collections of Maryland, Inc. After the decedent died in 2014, Respondent filed a motion for summary judgment arguing that the decedent’s claims under the Act did not survive his death pursuant to W. Va. Code 55-7-8a(a) because the claims were personal to the consumer who owed the debt and that the decedent’s estate did not have standing to bring a claim under the Act because an estate is not a natural person under the Act. Petitioner, the executrix of the estate of the decedent, moved to substitute the decedent’s estate as plaintiff. The circuit court granted summary judgment in favor of Respondent, concluding that the decedent’s estate lacked standing to maintain a private right of action as a “consumer” within the meaning of the Act. The Supreme Court affirmed, holding that a claim brought under W. Va. Code 46A-2-127(c) of the Act is not sufficiently analogous to a claim for fraud so that the claim survives the death of the consumer pursuant to section 55-7-8a(a). View "Horton v. Professional Bureau of Collections of Maryland" on Justia Law

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Robert Perry was issued a Citibank MasterCard account in 1998. The terms and conditions of the Citibank Card Agreement governing Perry’s account included an arbitration agreement. In 2010, Citibank filed a debt collection action against Perry seek to recover the balance owed on Perry’s account. In 2015, Perry filed an answer to Citibank’s complaint and a class counterclaim alleging that Citibank had violated the West Virginia Consumer Credit and Protection Act. Thereafter, Citibank filed a motion asking the court to compel arbitration of the parties’ claims. The circuit court concluded that Citibank had implicitly waived its right to arbitration by filing suit in circuit court and waiting nearly five years before seeking to invoke its contractual right to arbitrate. Citibank appealed. The Supreme Court reversed, holding that Citibank did not waive its right to compel arbitration in this matter. Remanded. View "Citibank, N.A. v. Perry" on Justia Law

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Adams dropped out of school in the 11th grade, moved to West Virginia, and receives social security disability on the basis of severe hypertension, migraine headaches, and mild mental retardation with marginal illiteracy. In 2007, Adams began receiving calls from a collection agency regarding a $2,500 guaranteed student loan procured in her name in 1986, for the purpose of attending school in Florida. Adams denied entering into the loan agreement, executing an application or promissory note, or attending school, but, nonetheless entered into a “rehabilitation agreement,” and made about 30 payments of $86.00/month to remove the “default” status of the loan, which was then owned by the Department of Education as a federally guaranteed Stafford Loan. She claims the agency threatened to take her social security if she did not make payments. In 2010, she again disavowed the loan, claiming identity theft. An investigation was launched. Adams eventually agreed to assume responsibility again, but, in 2011, asserted that she was entitled to discharge because she was disabled. She submitted her social security award decision, but failed to produce a required physician’s report. She retained counsel, but the agency continued written and telephone contact. The circuit court entered summary judgment for the agency, holding that the debt collection activity is required by Federal Family Education Loan Program regulations promulgated under the Higher Education Act of 1965. The Supreme Court of Appeals of West Virginia affirmed, finding her state Consumer Credit and Protection Act claim preempted by federal law. View "Adams v. Pa. Higher Educ. Assistance Agency" on Justia Law

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At issue in this case was a dispute between a homeowners association that was a West Virginia Limited Expense Planned Community (“Association”), and homeowners who failed to pay their association assessments (“Homeowners”). The instant conflict revolved around the Association’s ability to place a lien on the real property of homeowners whose dues were delinquent. The Association filed separate complaints against the Homeowners, who responded by filing separate answers and counterclaims asserting violations of the West Virginia Consumer Credit Protection Act (WVCCPA). The circuit court consolidated the cases and granted partial summary judgment in favor of the Association as to all of the Homeowners’ counterclaims, concluding (1) the Association had valid common law liens against the Homeowners’ real property; and (2) a homeowner associations’ attempts to collect assessments are not subject to the WVCCPA. The Supreme Court affirmed in part, reversed in part, and remanded, holding (1) an association is statutorily authorized to assert a consensual common law lien against real property; and (2) the unfair debt collection provisions of the WVCCPA do apply to a homeowner association’s attempts to collect delinquent assessments. View "Fleet v. Webber Springs Owners Ass’n" on Justia Law

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Plaintiff filed a lawsuit against Quicken Loans, Inc., alleging that Quicken committed common law fraud and violated the West Virginia Consumer Credit and Protection Act in connection with a loan agreement between Plaintiff and Quicken. The circuit court found in favor of Plaintiff on all but one of her claims. The Supreme Court reversed in part, concluding that the circuit court improperly cancelled Plaintiff’s obligation to repay the loan principal, failed to support its punitive damages award with the correct analysis, and failed to offset the compensatory damages award against Plaintiff’s pretrial settlement with defendants who did not proceed to trial. After remand, the circuit court entered an opinion and order. The Supreme Court again reversed, holding that the circuit court (1) improperly created a lien on Plaintiff’s property; (2) erred in increasing the compensatory damages award to Plaintiff; (3) erred in awarding attorney fees and costs for both the first appellate proceeding and the post-appellate proceedings; (4) improperly increased the punitive damages award; and (5) erred in refusing to offset Plaintiff’s award of attorney fees and costs by a pretrial settlement between Plaintiff and the codefendants. Remanded. View "Quicken Loans, Inc. v. Brown" on Justia Law