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State ex rel. Morrisey v. Copper Beech Townhome Communities Twenty-Six, LLC

Supreme Court of West Virginia

October 12, 2017

STATE OF WEST VIRGINIA ex rel, PATRICK MORRISEY, ATTORNEY GENERAL, Respondent
v.
COPPER BEECH TOWNHOME COMMUNITIES TWENTY-SIX, LLC, et al., Petitioner

          Submitted: October 3, 2017

         Certified Question from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action No. 15-C-1699

          M. David Griffith, Jr., Esq. Joseph K. Merical, Esq. Thomas Combs & Spann, PLLC Charleston, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Thomas M. Johnson, Jr., Esq. Deputy Solicitor General Erica N. Peterson, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

          W. Bradley Sorrells, Esq. Robinson & McElwee, PLLC Charleston, West Virginia Counsel for Amicus Curiae The West Virginia Association of Realtors, Inc.

          Samuel H. Simon, Esq. Matthew J. Lautman, Esq. Houston Harbaugh, P.C. Pittsburgh, Pennsylvania Counsel for Amicus Curiae North Central West Virginia Landlords Association, Inc. d/b/a North Central West Virginia Business Owners Association

          John R. Teare, Jr., Esq. Spilman Thomas & Battle, PLLC Charleston, West Virginia Counsel for Amicus Curiae The West Virginia Housing Institute, Inc.

          Marjorie Anne McDiarmid, Esq. WVU Litigation & Advocacy Clinic Carrie Ann Showalter, Esq. WVU Student Legal Services Morgantown, West Virginia Counsel for Amici Curiae WVU Litigation & Advocacy Clinic and WVU Student Legal Services

          Marc E. Williams, Esq. Randy L. Saunders, Esq. Alexander L. Turner, Esq. Nelson Mullins Riley & Scarborough, LLP Huntington, West Virginia Counsel for Amicus Curiae The Defense Trial Counsel of West Virginia

          Matthew A. Jividen, Esq. Paul R. Sheridan, Esq. Legal Aid of West Virginia Martinsburg, West Virginia Counsel for Amicus Curiae Legal Aid of West Virginia

          Mark A. Kepple, Esq. Bailey & Wyant, PLLC Wheeling, West Virginia Counsel for Amicus Curiae Metro Property Management

         SYLLABUS BY THE COURT

         1. "It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syllabus Point 11, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013).

         2. The debt collection provisions, W.Va. Code §§ 46A-2-122 to -129a [1996], and deceptive practices provisions, W.Va. Code §§ 46A-6-101 to -106 [2015], both contained in the West Virginia Consumer Credit and Protection Act, do not apply to and regulate the fees a landlord may charge to a tenant pursuant to a lease of residential real property.

          OPINION

          KETCHUM JUSTICE.

         In this matter we address whether our consumer credit protection statute applies to and regulates the relationship between a landlord and tenant under a lease for residential real property. The Circuit Court of Kanawha County certified a question to this Court to resolve this issue.

         After thorough review, we find that our consumer credit protection statute does not regulate the residential rental fees a landlord may charge pursuant to a residential lease. We therefore answer the certified question in the negative.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The relevant facts of this matter are brief and undisputed. In September 2015, the Attorney General of West Virginia ("Attorney General"), acting on behalf of the State, [1] filed a civil action in the Circuit Court of Kanawha County against a landlord, Copper Beech Townhome Communities Twenty-Six, LLC ("Defendant Landlord").[2] Defendant Landlord is one of the largest residential lessors in the state. It maintains a number of rental units in Morgantown, West Virginia.

         The Attorney General's complaint alleged that Defendant Landlord's residential leases included various fees and charges that violated the West Virginia Consumer Credit and Protection Act, W.Va. Code §§ 46A-1-101 et seq. [1974] ("CCPA"). According to the Attorney General, the fees contained in Defendant Landlord's leases that violate the CCPA include: 1) a non-refundable redecorating fee, 2) debt collection fees, 3) attorney's fees, 4) dishonored check fees, 5) multiple check fees when co-tenants pay rent with more than one check, 6) a fee for written receipts, and 7) a fee for late payment of monthly rent. The Attorney General's complaint alleged that these fees violated two main provisions of the CCPA: 1) the debt collection provisions as set forth in W.Va. Code §§ 46A-2-122 to -129a, and 2) the unfair and deceptive acts and practices provisions contained in W.Va. Code §§ 46A-6-101 to -106. The Attorney General's complaint sought an "injunction, consumer restitution, disgorgement, civil penalties, and other appropriate relief."

         Defendant Landlord filed a motion to dismiss the Attorney General's complaint, arguing that the CCPA does not apply to residential leases. After the circuit court denied this motion, Defendant Landlord moved the circuit court to certify a question to this Court regarding the application of the CCPA to residential leases of real property. On March 8, 2017, the circuit court certified the following question to this Court: "Does the West Virginia Consumer Credit and Protection Act (including W.Va. Code §§ 46A-2-122 to -129a and §§ 46A-6-101 to -106) apply to the relationship between a landlord and tenant under a lease for residential rental property?"[3] Thereafter, this Court accepted the certified question.[4]

         II. STANDARD OF REVIEW

         As this Court recognized in Syllabus Point 1 of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), "[t]he appellate standard of review of questions of law answered and certified by a circuit court is de novo." Applying this plenary standard of review, we proceed to address the certified question.

         III. ANALYSIS

         Before addressing the specific certified question, we begin with a brief background discussion of the CCPA. It was "enacted in 1974 and is a hybrid of the Uniform Consumer Credit Code and the National Consumer Act and some sections from then-existing West Virginia law." White v. Wyeth, 227 W.Va. 131, 136, 705 S.E.2d 828, 833 (2010) (internal citation omitted). This Court has observed that the purpose underlying the CCPA is as follows: "We have recognized the dual legislative purposes of protecting consumers and promoting sound and fair business practices." Id., 227 W.Va. at 139, 705 S.E.2d at 836. Further, this Court has stated that the CCPA "is a comprehensive attempt on the part of the West Virginia legislature to extend protection to consumers and persons who obtain credit in state." Harper v. Jackson Hewitt, Inc., 227 W.Va. 142, 151, 706 S.E.2d 63, 72 (2010).

         Additionally, the purpose of the CCPA was described in an excellent law review article by WVU Law School Professor Vincent Cardi[5] wherein he stated:

The West Virginia Consumer Credit and Protection Act is intended to: (1) increase the availability of consumer credit by raising allowable finance charges (interest rates) and move toward equalization of rates available to consumers whether they borrow the money from a lender or buy the goods on credit from a seller; (2) regulate the rate of finance charges allowed for consumer credit transactions by prescribing rates and rules for computation; (3) regulate those businesses which make small consumer loans and which were formerly regulated by the small loan act; (4) protect consumers who purchase goods or services on credit or through consumer loans from deceptive selling techniques, unconscionable contract terms, and undesirable debt recovery and collection practices; and (5) protect consumers who purchase goods or services for cash or credit from, and to give them remedies for, defective or shoddy goods and services and unfair and deceptive selling practices.

         V. Cardi, The West Virginia Consumer Credit and Protection Act, 77 ...


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