United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
before the Court is Defendant GC Services' Motion for
Summary Judgment. ECF No. 35. Plaintiff Kathorine Cobb
brought suit against GC Services (“GC”) alleging
violations of the West Virginia Consumer Credit and
Protection Act for fees charged on her outstanding student
loan account while GC was attempting to collect the loan on
behalf of the Department of Education. Cobb also brought a
common law negligent supervision claim against the Department
of Education (“DoE”) and an intentional
infliction of emotional distress claim against GC. Cobb has
failed to produce any evidence to support her claims.
Accordingly, and for the reasons more fully articulated in
the following memorandum, GC's motion is
incurred the debt at issue in this case in May 1989.
Def.'s Mot. for Summ. J. Ex. A, Aff. of B. Gentry ¶
10, ECF No. 35-1. Cobb consolidated her student loans a short
time later using a federal program to complete the
consolidation. Id. The principal of the consolidated
loans totaled $9, 444.00. Id. The DoE is the
creditor on Cobb's loans. Id. In June 2015, the
DoE placed Cobb's loans with GC and tasked GC with
collecting the outstand balance. Id. ¶¶
7-8. By this time the balance, including interest and other
fees, totaled $36, 961.06. Id. ¶ 8. GC then
began calling and sending letters to Cobb in an effort to
collect on the debt. Id. ¶¶ 11-38. From
June 22, 2015 to December 1, 2015, GC called Cobb twenty-four
times. Id. Twelve of those times GC left a message
requesting Cobb return the call. Id. None of the
calls were answered. Id. As it happens, nine of the
twenty-four calls were placed to a number that did not belong
to Cobb. Id. During the same period GC sent Cobb
five letters. Id. ¶¶ 13, 19, 21, 23, 32.
Interest and additional collection fees accumulated on
Cobb's balance while GC attempted to collect on the loan.
On December 29, 2015, GC received a letter from Cobb
disputing the balance of her account. Id.
¶¶ 12, 19, 22, 23, 27, 32, 37, 38.
then filed suit in the Circuit Court of Mason County, West
Virginia. Notice of Removal Ex. C, ECF No. 1-3. GC removed
the case to this Court. Id. The Court subsequently
denied Cobb's motion to remand the case back to state
court, but granted her motion to amend her complaint
ostensibly to conform to federal pleading standards.
Memorandum Opinion and Order, ECF No. 28. Cobb's Amended
Complaint was nearly identical to the original Complaint but
she joined the DoE as a defendant. First Am. Compl. ECF No. 31.
GC now requests the Court grant summary judgment in its favor
because Cobb's West Virginia Consumer Credit and
Protection Act (“WVCCPA”) negligence, and
intentional infliction of emotional distress
(“IIED”) claims are preempted by the federal
Higher Education Act (“HEA”) and related
Department of Education regulations. GC also maintains that
Cobb has not presented any evidence in support of of her
obtain summary judgment, the moving party must show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In considering a motion for summary
judgment, the Court will not “weigh the evidence and
determine the truth of the matter.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead,
the Court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict
in his [or her] favor.” Anderson, 477 U.S. at
256. Summary judgment is appropriate when the nonmoving party
has the burden of proof of an essential element of his or her
case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
nonmoving party must satisfy this burden of proof by offering
more than a mere “scintilla of evidence” in
support of his or her position. Anderson, 477 U.S.
and Cobb spend considerable time arguing about whether
Cobb's WVCCPA and common law claims are preempted by
federal law. Cobb's claims face a more serious defect,
however. A complete failure of any supportive evidence. Cobb
bears the burden on all elements of each of her claims as the
plaintiff in this case. To prevail on summary judgment GC
need only point out that Cobb cannot support with evidence
one or another element in each of her claims.
some evidence supporting each element of her claims,
no reasonable jury could find in her favor and therefore
summary judgment in favor of GC is warranted.
first cause of action alleges that GC violated Article 2 of
the WVCCPA. First Am. Compl. ¶¶ 35-37. Section 127
of Article 2 make it illegal to engage “in fraudulent,
deceptive, and misleading representations to collect on a
debt by falsely representing the character or amount owed.
W.Va. Code § 46A-2-127. Cobb believes that GC's loan
servicing practices and fees added to her account violated
the WVCCPA. Cobb's contention that there is still an open
question as to what entity, GC or DoE, assessed the fees on
Cobb's account is ill timed. Now is the time for Cobb to
demonstrate that she could prevail at trial with
reference to specific evidence giving rise to an inference
that GC violated the WVCCPA. Discovery is closed in this case
and Cobb had every opportunity to gather evidence to support
her allegations, including subpoenaing evidence from DoE.
Nonetheless, Cobb has presented no evidence, nor makes any
reference to any evidence, to support her claims. No rational
juror could find in Cobb's favor with only an
“open” question as support for her claims. To
find otherwise would be to replace fact with speculation as
the foundation of verdicts. Accordingly, Cobb has failed to
meet her burden on summary judgment.
with the aim to shift the burden to GC will also not be
entertained as a way to survive a motion for summary
judgment. Cobb is the plaintiff in this case and must prove
each and every element of her claims to prevail. It is
irrelevant that GC has not proved that it has not violated
the WVCCPA. GC has no obligation to prove its innocence.
second cause of action is a negligent supervision claim that
is directed at the DoE, and therefore has no ...