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O'Dell v. USAA Federal Savings Bank

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

April 5, 2018

CHRISTOPHER O'DELL, Plaintiff,
v.
USAA FEDERAL SAVINGS BANK aka USAA, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant's Motion for Summary Judgment (ECF No. 23). Defendant argues that Plaintiff has failed to produce sufficient evidence to permit a reasonable juror to find in Plaintiff's favor. Def.'s Mot. for Summ. J., ECF No. 23, at 1. Consistent with that contention, Defendant believes it is entitled to judgment as a matter of law. Id. Plaintiff filed his response to Defendant's motion, in which he counters Defendant's contentions. Having reviewed the complete briefing on the matter, the Court agrees with Defendant with regard to two of Plaintiff's counts, but disagrees with regard to the remaining count. Accordingly, and for the reasons provided below, the Court GRANTS, IN PART, and DENIES, IN PART, Defendant's Motion for Summary Judgment (ECF No. 23).

         I. Background

         Mr. Christopher O'Dell (“Mr. O'Dell” or “Plaintiff”) got in trouble with credit card debt. Ex. 2 to Def.'s Mot. for Summ. J., ECF No. 24-2, at 6-7[1]; Ex. 1 to Def.'s Mot. for Summ. J., ECF No. 24-1, at 1. Sometime late in the first decade of the 2000's, Mr. O'Dell opened a credit card account with USAA Savings Banks[2] (the “USAA Card”). Ex. 2 to Def.'s Mot. for Summ. J., at 5. Mr. O'Dell did not use the card for extravagant purchases. Id. at 16. Instead, he used the USAA Card for general purchases at the grocery store or drugstore, as well as to pay bills and cover day-to-day expenses. Id. at 5. Despite sensible use of the card, and while simultaneously holding two jobs, Mr. O'Dell fell behind with payments on the USAA Card. Id. 5-7.

         In November 2012, faced with mounting debt held by numerous entities, and with an insufficient income to cover it all, Mr. O'Dell stopped making payments on the USAA Card. Id. at 5-7. By this point, he owed roughly $11, 000 on the USAA Card. Id. at 5. Mr. O'Dell, who worked as a janitor when he was not working as a schoolteacher, freely admitted that he owed the debt. Id. at 17. By his own admission, Mr. O'Dell just got “overextended.” Id. at 5. He, however, did not expect USAA to merely forgive this accrued debt. Id. at 6.

         In line with Mr. O'Dell's expectation, USAA did not just call it even and forgive the debt. Instead, Defendant came calling to collect on that debt. Defendant began a multi-faceted approach to retrieving the money USAA was owed. In addition to sending letters, Defendant initiated a regular course of calls to Mr. O'Dell's home, cell, and work numbers in December 2012. Ex. 1 to Def.'s Mot. for Summ. J., at 1; Ex. 2 to Def.'s Mot. for Summ. J., at 7-10; see generally Ex. 3 to Def.'s Mot. for Summ. J., ECF No. 23-3; Ex. 4 to Def.'s Mot. for Summ. J., ECF No. 23-4.

         Around the same time that Mr. O'Dell stopped making payments and Defendant started making calls, Mr. O'Dell sought the assistance of a lawyer. Ex. 2 to Def.'s Mot. for Summ. J., at 7. Mr. O'Dell felt overwhelmed by the calls, as well as the pressure to pay the debt, and he needed help. Id. at 7-8, 10, 14. His attorney provided him with a strategy for documenting the calls that Mr. O'Dell received. Id. at 8. Additionally, Mr. O'Dell's lawyer provided him with a script that he was to read upon answering one of Defendant's calls. Id. at 10. The script read as follows: “PLEASE DON'T CONTACT ME ANYMORE IT MAKES ME NERVOUS. SCOTT STAPLETON OF HUNTINGTON, WEST VIRGINIA IS MY LAWYER.” Ex. 4 to Def.'s Mot. for Summ. J., at 1 (capitalization original). According to Mr. O'Dell, he read this script on January 23, 2013, then hung up. Id.; Ex. 2 to Def.'s Mot. for Summ. J., at 11-12. After reading this script, Mr. O'Dell stopped answering Defendant's calls. Ex. 2 to Def.'s Mot. for Summ. J., at 11-12.

         Defendant's call records fail to reflect this attorney notification. See generally Ex. 3 to Def.'s Mot. for Summ. J. However, Defendant's records do reflect that Mr. O'Dell provided notification that he had legal representation. Only, Defendant's records show that Mr. O'Dell first mentioned retaining a lawyer before, not after, January 23, 2013. Compare Ex. 3 to Def.'s Mot. for Summ. J., at 57 (showing the acknowledgment that Mr. O'Dell had told Defendant's representative that he was represented by an attorney) with Ex. 2 to Def.'s Mot. for Summ. J., at 11-12 (explaining that Mr. O'Dell does not recall notifying Defendant of his representation before January 23, 2013).

         According to Defendant's call records, on December 31, 2012, Defendant's call center received an incoming call.[3] Ex. 3 to Def.'s Mot. for Summ. J., at 57. During the course of this call, Mr. O'Dell appears to have notified Defendant that he was represented by an attorney. Id. But, according to Defendant's record of the conversation, Mr. O'Dell could not recall specific information regarding his attorney at the time. Id.; Ex. 2 to Def.'s Mot. for Summ. J., at 12. Further, the note in Defendant's call logs indicates that Defendant's representative told Mr. O'Dell that he would remain in their system until he provided more information regarding his attorney. But the representative instructed him to call back to provide the information when he had it available. Id.

         Mr. O'Dell, however, did not recall this conversation. Ex. 2 to Def.'s Mot. for Summ. J., at 12. During Mr. O'Dell's deposition, Defendant's counsel asked him whether he had notified Defendant regarding his hiring of an attorney prior to January 23, 2013. Id. Mr. O'Dell responded that he had not. Defendant's counsel read to Mr. O'Dell the interpretation of Defendant's notes from that December 31, 2012 call.[4] Id. Even after this prompt, Mr. O'Dell did not recall this conversation taking place. Id. Additionally, Mr. O'Dell clarified that this alleged conversation on December 31, 2012 could not have been the same one that he noted on January 23, 2013.

         Regardless of the date on which Mr. O'Dell first notified Defendant that he had retained an attorney, Defendant continued to call him dozens and dozens of times. Mr. O'Dell's call log shows 183 calls from Defendant within a four-month period. See Id. at 8, 12; See generally Ex. 4 to Def.'s Mot. for Summ. J. Although Defendant's representatives did not abuse Mr. O'Dell verbally in the calls, the incessant calling made Mr. O'Dell very nervous. Id. at 10, 13-14.

         In an effort to remedy what Mr. O'Dell believed was “harassment, ” he filed the complaint in this action. Id. at 4. Originally, Mr. O'Dell's attorney filed the complaint in the Circuit Court of Mason County, West Virginia. Notice of Removal, ECF No. 1. However, Defendant timely removed the action to this Court. Id.

         In his complaint, Mr. O'Dell asserts three counts: (1) Violations of the West Virginia Consumer Credit and Protection Act (“WVCCPA”); (2) Intentional Infliction of Emotional Distress (“IIED”); and (3) Common Law Invasion of Privacy. Compl., ECF No. 1-1, ¶ 11-22. He also requests relief in the form of appropriate statutory, compensatory, and punitive damages. Id. at 7-8. Defendant contends that summary judgment is appropriate in its favor for each of Mr. O'Dell's claims.

         As explained below, the Court believes summary judgment is appropriate in Defendant's favor with regard to Counts II and III, alleging claims of IIED and Common Law Invasion of Privacy, respectively. However, because there remain genuine issues of material fact, the Court must permit certain aspects of Mr. O'Dell's Count I, stating claims under the sections 46A-2-128(e) & 46A-2-125(d) of the WVCCPA, to continue.

         II. Legal Standard

         To obtain summary judgment, the moving party must show that no genuine issue as to any material fact remains and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “Material facts” are those that might affect the outcome of a case, and a “genuine issue” exists when a reasonable jury could find for the nonmoving party upon the evidence presented. The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 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). So too, it is not the province of the Court to make determinations of credibility. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991). 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). Any inference, however, “must fall within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture.” JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citation omitted).

         Although the Court will view all underlying facts and inferences in the light most favorable to the nonmoving party, in order to survive summary judgment, the nonmoving party 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 on an essential element of his or her case and, after adequate time for discovery, does not make a showing sufficient to establish that element. See 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. at 252. “Mere speculation by the non-movant cannot create a genuine issue of material fact” to avoid summary judgment. JKC Holding Co., 264 F.3d at 465.

         III. Discussion

         Because Defendant argues for summary judgment on each of Mr. O'Dell's claims, the Court will review each claims, and the parties' respective arguments, in turn.

         a. Count I: WVCCPA Claims

         Count I of Mr. O'Dell's Complaint alleges violations under multiple sections of the WVCCPA. The WVCCPA is a comprehensive consumer protection code that provides private causes of action for aggrieved debtors against debt collectors. See Bourne v. Mapother & Mapother, P.S.C., 998 F.Supp.2d 495, 500-01 (S.D. W.Va. 2014) (citation omitted). As a general matter, the Supreme Court of Appeals of West Virginia (“West Virginia Supreme Court”) has instructed that courts applying the WVCCPA should construe the statute broadly and liberally. See id. (citing State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 461 S.E.2d 516, 523 ( W.Va. 1995)). To that end, when considering the WVCCPA, courts should give effect to the purposes intended by the legislature. Id. at 501.

         Mr. O'Dell puts forward three claims that rely upon sections of the WVCCPA: (1) one under W.Va. Code § 46A-2-128(e); (2) one under W.Va. Code § 46A-2-125; and (3) one under W.Va. Code § 46A-2-125(d). See Compl. at ⁋ 12. In its motion, Defendant contests that summary judgment on each of these claims is appropriate.

         With respect to Mr. O'Dell's claims under section 46A-2-125 and section 46A-2-125, Defendant argues that Plaintiff cannot maintain a claim under the umbrella provision of 46A-2-125 that is separate from his 46A-2-125(d) claim. The Court need not reach a decision with regard to that question. In his response, Plaintiff failed to respond to Defendant's contention that the claim under the umbrella section, 46A-2-125, should be dismissed. As such, Plaintiff has produced no evidence to support a potential claim under the umbrella provision. Therefore, the Court agrees with Defendant. However, because the Court will permit Mr. O'Dell's claim to continue under the subsection, 46A-2-125(d), the Court will merely construe Mr. O'Dell's citation to the umbrella section 46A-2-125 as superfluous. The Court will combine the second and third claims under WVCCPA, and appropriately analyze the claim under the relevant framework applicable to subsection 46A-2-125(d).

         i. Claim under W.Va. Code § 46A-2-128(e)

         Returning to Mr. O'Dell's first claim under the WVCCPA, Mr. O'Dell claims that Defendant violated section 46A-2-128(e). That section prohibits “[a]ny communication with a consumer whenever it appears that the consumer is represented by an attorney and the attorney's name and address are known, or could be easily ascertained.” W.Va. Code § 46A-2-128(e) (2013)[5]. A debt collector does not violate the provision if the communication occurs after “the attorney fails to answer correspondence, return phone calls or discuss the obligation in question.” Id.

         Defendant contends that Mr. O'Dell's 46A-1-128(e) claim must fail because he has not presented sufficient evidence that “his attorney's name was known to [Defendant] or could [have been] easily ascertained.” Def. Mem. in Supp. of Mot. for Summ. J., at 6. Defendant conceded that Plaintiff testified at his deposition that he read the script with the name of his attorney, Scott Stapleton, to Defendant's representative. Id. However, Defendant argues ‚Äúthere is no evidence that [Defendant] had knowledge of Mr. Stapleton's ...


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