United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGER UNITED STATES DISTRICT JUDGE.
Court has reviewed Figi's Companies, Inc.'s
Motion for Summary Judgment (Document 134) and
Memorandum of Law in Support (Document 135), the
Plaintiff's Response in Opposition to Figi's
Companies, Inc.'s Motion for Summary Judgment
(Document 144), and Figi's Companies, Inc.'s
Reply in Support of Its Motion for Summary Judgment
(Document 154), as well as all attached exhibits. For the
reasons stated herein, the Court finds that the motion for
summary judgment should be granted.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff initiated this suit in the Circuit Court of Raleigh
County on July 1, 2015, and filed an Amended Class Action
Complaint on August 31, 2015. The Defendants removed the
matter to federal court on September 29, 2015. A related
suit, Hamlet v. Credit Bureau, et. al., Civil Action
Number 5:16-cv-4851, was filed in the Circuit Court of
Raleigh County on April 28, 2016, and removed on May 27,
2016. On December 28, 2016, the Court ordered that the cases
Perez, Plaintiff Sandra Perez, on behalf of herself
and a proposed class, alleges that Defendants Charming Sales
Co. One, Inc., and Figi's Companies, Inc., engaged in
unlawful debt collection activity. She purchased items from
Charming on credit, and fell behind in her
payments. She alleges that the Defendants sent her debt
collection letters that unlawfully threatened to or did add
collection fees, and referred her account to third-party
collection agencies that likewise mailed letters seeking to
collect allegedly unlawful fees. Ms. Perez, as well as
additional named Plaintiffs Contessa Hamlet and Dorothy
Thompson, sued the third-party collection agencies in
Hamlet for similar letters seeking to collect
improper collection fees for debt owed to Figi's and/or
Charming. Charming and Figi's entered into an asset
purchase agreement on August 14, 2013, and the sale was
finalized on October 13, 2013. Figi's filed a motion to
dismiss or for summary judgment early in this litigation,
asserting that it was not liable for the challenged debt
collection letters because the letters were sent before it
purchased the company, and it did not assume liabilities of
the nature alleged. The Court granted summary judgment to
Figi's with respect to collection activity that took
place prior to October 13, 2013, but found that questions of
fact remained as to collection activity that continued after
Ms. Perez fell behind on her payments, Charming mailed her a
collection letter dated September 6, 2013. That letter
included a notice that a collection fee of up to $29.00 could
be added to her account if she failed to make payments.
Charming then referred her account to Alliance Collection
Agencies, Inc. Alliance sent Ms. Perez a letter, dated
October 2, 2013, that included a balance due of about $19
extra due to the imposition of a collection fee. Her balance
increased from $73.44 to $92.53. Alliance also made telephone
calls to Ms. Perez's number from October 7, 2013 through
January 30, 2014. According to Alliance's records, no
call was answered until January 30, 2014, when Ms.
Perez's husband falsely informed the caller that she had
moved to Florida, and her number was removed from the system.
Messages were left on several occasions, explaining that the
calls were in relation to a debt and providing contact
information. Ms. Perez does not have a clear recollection of
when she received calls related to the Figi's debt. She
was receiving frequent calls and letters in relation to
credit card, medical, and other unpaid accounts. Ms. Perez
testified, however, that she typically returned calls when
there was a message, and believed she had spoken to callers
regarding the Figi's debt, though she did not know when
any conversations may have taken place.
stopped adding a collection fee about a month after the
closing of the Asset Purchase Agreement. However, the
collection fee remained on accounts, including Ms.
Perez's account, which had previously been referred to
collection agencies. Prior to the closing of the Asset
Purchase Agreement, Figi's officials exchanged
communications regarding the legality of collection fees. In
April 2014, Figi's removed collection fees that had been
added to accounts. Ms. Perez received a collection letter in
June 2014 that referenced a balance of $73.44, her original
balance absent any collection fee.
filed the instant motion for summary judgment on October 5,
2016, following discovery. Several other motions remain
pending, including the Plaintiff's Motion for Class
Certification (Document 131) and motions for summary
judgment filed by other parties. The Court has been informed
that the Hamlet plaintiffs have reached a settlement
agreement with the third-party collection agencies, and Ms.
Perez has reached a settlement agreement with Charming.
Because the Court finds that Figi's is entitled to
summary judgment, no other motions involving Figi's
well-established standard for consideration of a motion for
summary judgment is that summary judgment should be granted
if the record, including the pleadings and other filings,
discovery material, depositions, and affidavits, “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a)- (c); see also Hunt v. Cromartie,
526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir.
2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S.
at 248; News & Observer Publ'g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th
Cir. 2010). A “genuine issue” concerning a
material fact exists when the evidence is sufficient to allow
a reasonable jury to return a verdict in the nonmoving
party's favor. FDIC v. Cashion, 720 F.3d 169,
180 (4th Cir. 2013).
moving party bears the burden of showing that there is no
genuine issue of material fact, and that it is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp., 477 U.S. at 322-23. When determining whether
summary judgment is appropriate, a court must view all of the
factual evidence, and any reasonable inferences to be drawn
therefrom, in the light most favorable to the nonmoving
party. Hoschar, 739 F.3d at 169. However, the
nonmoving party must satisfy its burden of showing a genuine
factual dispute by offering more than “[m]ere
speculation” or a “scintilla of evidence”
in support of its position. Anderson, 477 U.S. at
252; JKC Holding Co. v. Wash. Sports Ventures, Inc.,
264 F.3d 459, 465 (4th Cir. 2001). If disputes over a
material fact exist that “can be resolved only by a
finder of fact because they may reasonably be resolved in
favor of either party, ” summary judgment is
inappropriate. Anderson, 477 U.S. at 250. On the
other hand, if the nonmoving party “fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, ” then summary
judgment should be granted because “a complete failure
of proof concerning an essential element . . . necessarily
renders all other facts immaterial.” Celotex,
477 U.S. at 322-23.
argues that it is entitled to summary judgment because it did
not send any letters referencing a collection fee. It argues
that the telephone calls made after October 13, 2013, are not
a basis for liability pled in the complaint, were made by a
third party, and did not constitute a violation because no
conversation or message referenced either a collection fee or
Ms. Perez's balance. Figi's emphasizes Ms.
Perez's admission that she did not receive debt
collection letters that mentioned a collection fee or that
included a loan balance with a collection fee after October
13, 2013. Figi's argues that it is entitled to summary
judgment as to the class claims because Ms. Perez lacks
standing to pursue them without her own viable claim. Ms.
Perez argues that an illegal collection fee undisputedly
remained on her account after October 13, 2013, and Alliance
sought to collect it via telephone calls made on Figi's
behalf. Ms. Perez had been informed of an increased balance
due to the imposition of a collection fee, and so, she
argues, the collection calls constitute attempts to collect
an unlawful fee.
Court finds that Figi's is entitled to summary judgment.
West Virginia Code § 46A-2-128 bars unfair or
unconscionable means of debt collection. That section further
specifies that “[t]he collection or the attempt to
collect from the consumer all or any part of the debt
collector's fee or charge for services rendered”
and “[t]he collection of or the attempt to collect any
interest or other charge, fee or expense incidental to the
principal obligation unless such interest or incidental fee,
charge or expense is expressly authorized by the agreement
creating or modifying the obligation and by statute or
regulation” constitute violations. W.Va. Code §
46A-2-128(c)-(d) (version effective through June 5, 2014).
The Plaintiff additionally alleges violations of WVCCPA
sections barring debt collection activity that involves
threats or coercion; unreasonable, oppressive, or abusive
conduct; and fraudulent, ...