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Ltd Financial Services, L.P. v. Collins

Supreme Court of West Virginia

March 15, 2019

LTD Financial Services, L.P., Defendant Below, Petitioner
Brian Collins, Plaintiff Below, Respondent

          Raleigh County 15-C-41


         Petitioner LTD Financial Services, L.P., by counsel Albert C. Dunn, Jr., appeals the Circuit Court of Raleigh County's November 30, 2017, order granting a directed verdict in respondent's favor and awarding him an aggregate amount of $18, 406 for petitioner's multiple violations of the West Virginia Consumer Credit and Protection Act ("WVCCPA"). Respondent Brian Collins, by counsel Steven R. Broadwater, Jr., filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in finding that respondent satisfied the applicable burden of proof and in applying an incorrect legal standard to petitioner's affirmative defense.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In January of 2015, respondent filed a complaint against petitioner alleging multiple violations of the WVCCPA as set forth in West Virginia Code § 46A-1-101 to -8-102. As it relates to the current appeal, the facts of the suit turned on the following. On December 19, 2014, petitioner placed a telephone collection call to respondent concerning outstanding debt. The call in question was recorded. During the call, respondent informed petitioner that he was represented by counsel and provided petitioner his counsel's name and telephone number. As the circuit court later found, "[t]he name of [respondent's] counsel and his status as [respondent's] counsel was clearly spoken in the recording" of this call. However, the circuit court also noted that "[t]he telephone number . . . was difficult to ascertain because [petitioner's] collector . . . began speaking over [respondent] and interrupted him as he attempted to provide this information." Following the call in question, petitioner contacted respondent at least eleven additional times.

         In February of 2017, the circuit court held a hearing on the parties' motions for summary judgment. Petitioner sought dismissal of the proceedings based on the affirmative defense of bona fide error. Respondent sought summary judgment as to liability for all communications directed toward him after he informed petitioner he was represented by counsel. Ultimately, the circuit court denied petitioner's motion and granted respondent summary judgment as to eleven violations of West Virginia Code § 46A-2-128(e).

         In March of 2017, the matter proceeded to a bench trial on the issue of petitioner's affirmative defense under West Virginia Code § 46A-5-101(8) and the issues of damages and statutory penalties. During petitioner's defense, one witness - David John, petitioner's CEO - testified in support of the affirmative defense. According to Mr. John's testimony, petitioner's collectors are not allowed to listen to recordings of their conversations, which precluded the collector in question from simply reviewing the call to correctly input respondent's counsel's telephone number in petitioner's records. The circuit court found that Mr. John's testimony established that "once [the collector] was informed that [respondent] was represented by counsel but . . . was unable to input counsel's correct telephone number, [the collector] should have entered a substitute telephone number for [respondent] . . . to prevent any future calls." The circuit court further found, however, that petitioner "was unable to identify where such specific procedure existed in its policies and procedures materials." In fact, Mr. John admitted that he could not point to anywhere in the policies and procedures provided where such a policy existed.

         Upon respondent's motion for a directed verdict, the circuit court ruled that petitioner did not satisfy its burden of proof in asserting its affirmative defense because it failed to prove the existence and maintenance of procedures reasonably adapted to avoid violating the WVCCPA and further failed to establish any mistake of fact that resulted in the eleven additional calls to respondent. Moreover, the circuit court found that petitioner had not even claimed that the calls in question were unintentional. Turning to the issue of damages, the circuit court found that petitioner's conduct was "not so egregious as to warrant the maximum statutory penalty" and awarded respondent "an aggregate award of $18, 406." It is from the circuit court's November 30, 2017, verdict order that petitioner appeals.

This Court has previously held as follows:
"In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus Point 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

Syl. Pt. 1, Valentine & Kebartas, Inc. v. Lenahan, 239 W.Va. 416, 801 S.E.2d 431 (2017). Upon our review, we find no error in the proceedings below.

         Petitioner's argument in support of its first assignment of error turns on an assumption that intent was a necessary element for respondent to establish in his case-in-chief and that, because he failed to do so, the circuit court erred in ruling in respondent's favor. We do not agree, as the plain language of West Virginia Code § 46A-2-128(e) does not require proof of intent. Instead, that statute indicates that

[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, unless the attorney fails to answer correspondence, return phone calls or discuss the obligation in question or unless the attorney consents to direct communication [is deemed to violate this section.]

          W.Va. Code § 46A-2-128(e) (1990).[1] The plain language of this statute does not make reference to the debt collector's intent in making the calls. "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." Huffman v. Goals Coal Co., 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996)).

         It appears that petitioner believes intent is a necessary element of this cause of action because of its assertion of affirmative defenses thereto and our prior holdings interpreting other sections of the WVCCPA. Specifically, affirmative defenses exist "[i]f the creditor establishes by a preponderance of evidence that a violation is unintentional or the result of a bona fide error of fact notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation or error." W.Va. Code § 46A-5-101(8) (1996). While petitioner is correct that establishing the calls in question were unintentional would constitute an affirmative defense, nothing in this statute alters the language quoted above from West Virginia Code § 46A-2-128(e) setting forth a cause of action under the WVCCPA. The language of West Virginia Code § 46A-5-101(8) is clear that the creditor - in this case, petitioner - must establish that the calls were unintentional, not the debtor - in this case, respondent. As such, any argument petitioner advances that is predicated on its assertion that respondent did not meet "his ...

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