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Adkins v. Midland Credit Management, Inc.

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

March 26, 2019

STEPHANIE ADKINS and DOUGLAS SHORT, Plaintiffs,
v.
MIDLAND CREDIT MANAGEMENT, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGEF' 0 UNITED STATES DISTRICT JUDGE

         The Court has reviewed the Defendant's Motion to Dismiss Count One [of] the Complaint (Document 50), the Memorandum in Support of Motion to Dismiss (Document 51), the Plaintiff's Response in Opposition to Defendant's Motion to Dismiss (Document 55), and Midland Credit Management, Inc.'s Reply in Support of Motion to Dismiss (Document 56). In addition, the Court has reviewed all attached exhibits, as well as the Class Action Complaint (Document 1). For the reasons stated herein, the Court finds that the motion to dismiss should be denied.

         FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

         The named Plaintiffs, Stephanie Adkins and Douglas Short, brought this action on behalf of themselves and a purported class of West Virginia consumers. They named as Defendant Midland Credit Management (MCM).

         The Plaintiffs allege that MCM mailed collection letters seeking to collect debt which was beyond the statute of limitations for filing a legal action for collection. They list various dates between April 19, 2017 and August 18, 2017, but also allege that letters were sent “at other times better known to MCM.” (Compl. at ¶ 10-11.) The collection letters “advised Plaintiffs ‘[b]ecause of the age of your debt, we will not sue you for it…' when, at those times, MCM and the owner of the debt…was legally barred from suing to collect the debt.” (Id. at 12.) The Plaintiffs allege violations of the Fair Debt Collection Practices Act (FDCPA) and of the West Virginia Consumer Credit and Protection Act (WVCCPA). They seek injunctive relief, actual damages, statutory penalties, reimbursement of time-barred debt collected, and attorney fees and costs.

         Prior to filing their complaint, the Plaintiffs sent MCM a right to cure notice as required by the WVCCPA, W.Va. Code § 46A-5-108. The notice asserted that letters sent by MCM “were an attempt to collect a claim from a West Virginia Consumer in violation of West Virginia Code § 46A-2-128(f) by sending an initial written communication to each such individual where the debt sought to be collected was beyond the statute of limitations for filing a legal action for collection without providing the disclosures required by West Virginia Code § 46A-2-128(f)(1) and (2).” (Right to Cure Notice at 1, Pls.' Ex. A) (Document 55-1.) The notice further states that “all subsequent communications with such individuals and the class of persons they represent violate West Virginia Code § 46A-2-127(d) as a false representation or implication of the character, extent or amount of the claim against the consumer, or of its status in any legal proceeding” and also constitute fraudulent, deceptive or misleading representations in violation of W.Va. Code § 46A-2-127 and unfair and unconscionable means to collect a debt in violation of W.Va. Code § 46A-2-128. (Id.) Finally, the letter alleges that “all of the acts complained of above are unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce in violation of West Virginia Code § 46A-6-104.” (Id. at 2.) The Plaintiffs attached five sample letters, the last dated July 19, 2017.[1]

         In their October 3, 2017 complaint, the Plaintiffs proposed a class definition of:

All persons with a West Virginia address who were sent collection letters on or after June 6, 2014, by MCM where the alleged debt sought to be collected was beyond the applicable statute of limitations for filing a legal action for collection when:
a. The initial letter sent on or after June 6, 2014 did not contain the disclosures required by the WVCCPA, West Virginia Code § 46A-2-128(f); or
b. Any letter contained the words “due to the age of this debt, we will not sue you”; or
c. Any letter suggests that the claim against the consumer could be paid in installments without advising the consumer that a payment could re-start the expired statute of limitations and otherwise waive a complete defense to any collection action.

(Compl. at ¶ 17.) On December 7, 2018, the Plaintiffs filed a motion to certify class. (Document 46.) Therein, they proposed the following class definition:

All persons with West Virginia addresses to whom Midland sent a debt collection letter on or after July 4, 2017 seeking to collect debt that Midland's records indicated had passed its statute of limitations, which letter failed to provide the following disclosure: “The law limits how long you can be sued on a ...

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