United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON UNITED STATES DISTRICT JUDGE.
the Court is Defendant Credit Acceptance Corporation's
Partial Motion to Dismiss. (ECF No. 12.) For the reasons that
follow, the motion is GRANTED. Plaintiff may file an amended
pleading rectifying the deficiencies identified herein within
Courtney Adkins alleges that around May 2013, Defendant
Credit Acceptance Corporation (“Credit
Acceptance”) began making debt collection calls to her
personal cellular telephone number. (First Am. Compl. ¶
14.) Plaintiff claims that she did not owe a debt to Credit
Acceptance, nor had she provided her cell phone number
“during a transaction that created a debt.”
(Id. ¶ 22.) Nevertheless, Credit Acceptance
allegedly used an automatic telephone dialing system to make
hundreds of calls to Plaintiff's cell phone under the
pretense that Plaintiff was obligated to make payment on a
debt owed to it. (Id. ¶ 25.) During the calls,
Credit Acceptance would solicit payment in various ways, at
times asking if Plaintiff “wanted to make a payment,
” and at others asking “how much she wanted to
pay on the debt.” (Id. ¶ 24.)
brings this civil action on her own behalf and on behalf of a
putative class of individuals who received harassing debt
collection calls in similar circumstances. The Court has
jurisdiction under the Class Action Fairness Act. 28 U.S.C.
§ 1332(d)(2). The three-count First Amended Complaint
alleges violations of the Telephone Consumer Protection Act
(“TCPA”), (Count I), and the West Virginia
Consumer Credit and Protection Act (“WVCCPA”),
(Counts II and III). With regard to the WVCCPA claims, Count
II alleges misrepresentation of the amount of a claim in
violation of West Virginia Code § 46A-2-127 and is
brought as an individual claim and on behalf of the putative
class. Count III, an individual claim only, alleges
oppressive and abusive debt collection in violation of West
Virginia Code § 46A-2-125. Credit Acceptance moves to
dismiss both WVCCPA claims. The motion, having been fully
briefed, is ready for disposition.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Allegations “must be simple, concise, and direct”
and “[n]o technical form is required.”
Fed.R.Civ.P. 8(d)(1). A motion to dismiss under Fed.R.Civ.P.
12(b)(6) tests the legal sufficiency of a civil complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). “[I]t does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)
(citing 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1356 (1990)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A court decides whether this standard is met by
separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer that “the defendant
is liable for the misconduct alleged.” Id.
While “Iqbal and Twombly do not
require a plaintiff to prove [her] case in the complaint,
” the complaint must “allege facts sufficient to
state elements of the claim.” SD3, LLC v. Black
& Decker (U.S.) Inc., 801 F.3d 412, 441 (4th Cir.
2015) (quoting Robertson v. Sea Pines Real Estate
Companies, Inc., 679 F.3d 278, 284 (4th Cir. 2012))
(internal quotation marks omitted).
Acceptance moves for the dismissal of Counts II and III for
two reasons, both related to the applicability of the WVCCPA.
Credit Acceptance's initial argument goes to standing.
Simply put, Credit Acceptance alleges that Plaintiff is not a
“consumer” under the WVCCPA and the relief
afforded under that statute is thus out of reach. Credit
Acceptance next argues that even if Plaintiff has standing on
Counts II and III, she fails to allege that any debt she
allegedly owed was incurred primarily for “personal,
family, or household purposes, ” a necessary element of
both causes of action. The Court will discuss each argument
in the order presented by Credit Acceptance.
Standing under the WVCCPA
WVCCPA exists “to protect consumers from unfair,
illegal, and deceptive acts or practices” of their
creditors. Dunlap v. Friedman's, Inc., 582
S.E.2d 841, 846 ( W.Va. 2003) (citation and internal
quotation marks omitted). Consistent with this policy,
“a plaintiff must be a consumer to bring a private
cause of action under the [WVCCPA].” McNeely v.
Wells Fargo Bank, N.A., 115 F.Supp.3d 779, 784 (S.D.
W.Va. 2015) (citing W.Va. Code § 46A-5-101(1) (2006)).
Counts II and III arise under Article 2 of the WVCCPA, which
defines “consumer” as “any natural person
obligated or allegedly obligated to pay any debt.”
W.Va. Code § 46A-2-122(a). The parties agree that
Plaintiff has no debtor-creditor relationship with Credit
Acceptance. Plaintiff thus has standing to bring Counts II
and III only if she was “allegedly obligated” to
pay a debt. Id.
Court does not write on a blank slate in defining this term.
“Courts consider a person ‘allegedly
obligated' to pay a debt when the creditor has
‘represented to [her] that [she] is personally liable
on the debt.” McNeely, 115 F.Supp.3d at 785
(quoting Fabian v. Home Loan Ctr., Inc., No.
5:14-cv-42, 2014 WL 1648289, at *6 (N.D. W.Va. Apr. 24,
2014)). In this manner, “[t]he term ‘alleged
obligation' extends the reach of the WVCCPA to certain
collection activities conducted without regard to whether the
debt is actually owed.” McGuire v. Jim Walter
Homes, LLC, No. 5:14-CV-14299, 2014 WL 5149725, at *7
(S.D. W.Va. Oct. 14, 2014) (citing Fabian, 2014 WL
1648289 at *6). This Court has repeatedly found that direct
solicitations from a creditor for payment are indicative of
an alleged obligation to pay a debt. McNeely, 115
F.Supp.3d at 785 (noting the absence of such solicitation as
one of several factors indicating that the plaintiff, who had
no debtor-creditor relationship with the defendant, lacked
standing under the WVCCPA).; McGuire, 2014 WL
5149725, at *7 (finding genuine issue of material fact
existed as to whether plaintiffs, who were repeatedly
solicited by a creditor to make payments on a debt, were
“allegedly obligated” to pay the debt); Croye
v. GreenPoint Mortgage Funding, Inc., 740 F.Supp.2d 788,
798 (S.D. W.Va. 2010) (finding factual issue existed as to
whether plaintiff was allegedly obligated to pay a debt not
actually owed, but nevertheless solicited by a creditor).
parties rely heavily on the Court's decision in
Croye. In Croye, a husband and wife
refinanced the mortgage on their home, but only the wife
signed the promissory notes. 740 F.Supp.2d at 790. Some years
later, the couple divorced and the wife attempted to
re-convey her interest in the property to her now-estranged
husband, who assumed the mortgage payment. The couple later
sued the mortgage servicer, contending that the servicer
violated the WVCCPA by contacting both plaintiffs in an
attempt to collect on the debt, notwithstanding the
plaintiffs' representation by counsel. The servicer
argued that the husband lacked standing to sue under the
WVCCPA-because the husband did not execute the loan
refinance, the servicer claimed that he did not meet the
definition of a “consumer.” ...