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Eads v. Kohl's Department Stores, Inc.

United States District Court, S.D. West Virginia, Beckley Division

May 2, 2017

ELLEN EADS, Plaintiff,
v.
KOHL'S DEPARTMENT STORES, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

         The Court has reviewed the Plaintiff's Motion to Remand (Document 20) and Memorandum of Law in Support (Document 21), the Defendant's Memorandum in Opposition to Plaintiff's Motion to Remand (Document 45), and the Plaintiff's Reply in Further Support of her Motion to Remand (Document 51), as well as all attached exhibits. The Court has also reviewed the Plaintiff's Individual and Class Action Complaint (Document 1-1) and the Notice of Removal (Document 1). For the reasons stated herein, the Court finds that the motion to remand should be granted.

         FACTS

         Plaintiff Ellen Eads is a resident of Raleigh County, West Virginia. She filed her Individual and Class Action Complaint (Document 1-1) in the Circuit Court of Raleigh County, West Virginia, on November 18, 2016, and the Defendants removed the action to this Court on December 28, 2016. Ms. Eads named the following Defendants: Kohl's Department Stores, Inc. (Kohl's), a Delaware corporation with a principal place of business in Wisconsin; Capital One, N.A. (Capital One), a national association bank with its principal place of business in Virginia; and Northland Group, Inc. (Northland), a Minnesota corporation with its principal place of business in Minnesota. Ms. Eads obtained a credit card account from Kohl's and/or Capital One, on which she made her last payment in April 2011, and her account was allegedly “charged off” as of June 2011. The Defendants allege a balance remains on the account of $1, 300.30.

         Kohl's and/or Capital One retained Northland to collect Ms. Eads' alleged debt, and Northland sent her collection letters dated October 31, 2015, and December 4, 2015. Ms. Eads contends the debt was beyond the three-year statute of limitations under Virginia law at the time the collection letters were sent. The collection letters did not contain language stating that the debt was time-barred, as required under West Virginia law.

         Ms. Eads alleges both individual and class claims. The tentative class definition in the complaint is “All West Virginia consumers from whom defendants, or any one of them, attempted to collect a time-barred debt without the notice and disclaimers required by West Virginia Code 46A-2-128(f).” (Compl. at ¶ 14.) The complaint alleges violation(s) of the West Virginia Consumer Credit Protection Act (WVCCPA). The Plaintiff seeks the following relief:

A. That the Court enjoin Defendants from attempting to collect time-barred debt in the State of West Virginia;
B. That a statutory penalty, adjusted for inflation, pursuant to West Virginia Code § 46A-2-101(1) and 106, be awarded to Ms. Eads and each member of the class she represents for each violation of the WVCCPA;
C. That Defendants be ordered to account for all time-barred debt collected from the class and reimburse each such member of the class all monies collected with interest thereon for the four year period preceding the filing of this action;
D. That Defendants be ordered to pay Ms. Eads' reasonable attorney fees and costs pursuant to the provisions of West Virginia Code § 46A-5-104 and 15 U.S.C. § 1692k;
E. Cancellation of all debt pursuant to West Virginia Code § 46A-5-105; and
F. For such other and further relief as the Court may deem appropriate.

(Id. at 7-8.)

         Northland submitted a declaration by Greg Stevens, Chief Compliance Officer. (Document 45-1.) Mr. Stevens states that approximately 34, 678 accounts in West Virginia were sent collection letters by Northland between June 6, 2014 and November 28, 2016. Of those, Mr. Stevens states that 11, 163 were in default for more than three years. Mr. Stevens declares that, after further research, Northland specifically identified 1, 743 West Virginia accounts that were sent an initial collection letter on debt that was past the three-year statute of limitations for collection that did not ...


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