STATE OF WEST VIRGINIA ex rel, PATRICK MORRISEY, ATTORNEY GENERAL, Respondent
COPPER BEECH TOWNHOME COMMUNITIES TWENTY-SIX, LLC, et al., Petitioner
Submitted: October 3, 2017
Question from the Circuit Court of Kanawha County The
Honorable Jennifer F. Bailey, Judge Civil Action No.
David Griffith, Jr., Esq. Joseph K. Merical, Esq. Thomas
Combs & Spann, PLLC Charleston, West Virginia Counsel for
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
Bradley Sorrells, Esq. Robinson & McElwee, PLLC
Charleston, West Virginia Counsel for Amicus Curiae The West
Virginia Association of Realtors, Inc.
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
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
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
A. Kepple, Esq. Bailey & Wyant, PLLC Wheeling, West
Virginia Counsel for Amicus Curiae Metro Property Management
BY THE COURT
"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).
debt collection provisions, W.Va. Code §§ 46A-2-122
to -129a , and deceptive practices provisions, W.Va.
Code §§ 46A-6-101 to -106 , 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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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,  filed a civil action in the Circuit Court
of Kanawha County against a landlord, Copper Beech Townhome
Communities Twenty-Six, LLC ("Defendant
Landlord"). Defendant Landlord is one of the largest
residential lessors in the state. It maintains a number of
rental units in Morgantown, West Virginia.
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.  ("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
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?" Thereafter, this Court
accepted the certified question.
STANDARD OF REVIEW
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.
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).
the purpose of the CCPA was described in an excellent law
review article by WVU Law School Professor Vincent
Cardi 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.
Cardi, The West Virginia Consumer Credit and Protection
Act, 77 ...