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Adkins v. Midland Credit Management, Inc.

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

April 10, 2019

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

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGEN, UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the Plaintiffs' Motion for Summary Judgment on Count Two (Document 62), the Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment on Count Two (Document 63), Defendant Midland Credit Management, Inc.'s Opposition to Plaintiffs' Motion for Summary Judgment on Count Two (Document 74), and the Plaintiffs' Reply in Further Support of Their Motion for Summary Judgment on Count Two (Document 78), as well as all attached exhibits.

         The Court has also reviewed Defendant Midland Credit Management Inc.'s Motion for Summary Judgment (Document 66), the Memorandum in Support of Defendant Midland Credit Management Inc.'s Motion for Summary Judgment (Document 76), the Plaintiffs' Brief in Opposition to Defendant's Motion for Summary Judgment (Document 77), and the Reply Memorandum in Support of Defendant Midland Credit Management Inc.'s Motion for Summary Judgment (Document 79). For the reasons stated herein, the Court finds that the Plaintiffs' motion should be granted, and the Defendant's motion should be denied.

         FACTS[1]

         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). Although the Class Action Complaint (Document 1) asserted violations of the Fair Debt Collection Practices Act (FDCPA) and multiple violations of the West Virginia Consumer Credit and Protection Act (WVCCPA), the Plaintiffs have agreed to dismiss their individual claims under the FDCPA, as well as all WVCCPA claims related to letters sent on or before July 3, 2017. (Pl.s' Resp. to Def.'s Mot. at 1.) The Court recently granted a motion for class certification related to the sole remaining claims. (Mem. Op.) (Document 89.) That class is defined as follows:

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 debt. Because of the age of your debt, [Midland] cannot sue you for it.”

         Accordingly, the Court will address only the facts and arguments related to the class claim that remains pending. In addition, the Court hereby incorporates the Memorandum Opinion and Order (Document 86) denying MCM's motion to dismiss and the Memorandum Opinion and Order (Document 89) granting the Plaintiffs' motion for class certification, as those opinions resolve some issues presented herein.

         An amendment to the WVCCPA, effective July 4, 2017, requires that, when debt is beyond the statute of limitations, the following language must be included in all written communications with the consumer: “The law limits how long you can be sued on a debt. Because of the age of your debt, (INSERT OWNER NAME) cannot sue you for it.” W.Va. Code § 46A-2-128(f). MCM monitored the progress of the bill that contained that amendment, among other changes to the WVCCPA, in the West Virginia legislature. After the bill was signed into law, MCM legal, compliance, and marketing personnel exchanged emails on April 27 and 28, 2017, discussing the content of the bill, including how to implement the change to the statute of limitations disclosure and the effective date of July 4, 2017.

         Between January and April 2017, MCM implemented a new system for requesting changes in its debt collection correspondence. MCM's representative explained that the new system was intended to prevent change requests from falling through the cracks. Previously, the department or individual suggesting a change would email Marketing, and Marketing held follow-up meetings. Under the new system, the department or individual suggesting a change emails Marketing with a uniform request form, and Marketing holds follow up meetings. The April 28, 2017 email describing the amendments to the WVCCPA and the changes required for MCM's letter templates was submitted shortly after implementation of the new system but was not sent on the uniform request form. Marketing did not implement the change, and no follow up occurred until the Legal/Compliance Department discovered on or about August 9, 2017, that the change had not been made. Marketing corrected the letter templates by August 25, 2017.

         MCM sent letters to the named Plaintiffs during the period after July 4, 2017, and before it implemented the changes to the letter templates to comply with the WVCCPA amendment. [MCM sent letters to the named Plaintiffs after the July 4, 2017 effective date of the WVCCPA amendment that did not include the language required by that amendment.] MCM sent a letter dated July 19, 2017, addressed to Mr. Short but mailed to his attorney's office. The letter lists a current balance of $992.30. It references a dispute, indicates that MCM concluded that its “information is accurate” and verified the amount of Mr. Short's outstanding balance. (Short Letter, att'd as Pl.'s Ex. B) (Document 62-2.) The letter contains the following language: “The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it. If you do not pay the debt, we may continue to report it to the credit reporting agencies as unpaid.” (Id.) The same language appears in a letter dated July 12, 2017, that MCM sent to Ms. Adkins. Ms. Adkins' letter lists a balance of $849.73 and offers “payment options” with a 40% discount for paying the reduced amount due in full by August 11, 2017, a 20% discount for paying the reduced amount due in six monthly payments, with the first payment due by August 11, 2017, or “Monthly Payments As Low As: $50 per month.” (Adkins Letter, att'd as Pl.'s Ex. A) (Document 62-1.)

         Both parties have submitted motions for summary judgment, which are fully briefed and ripe for ruling.

         STANDARD OF REVIEW

         The well-established standard in consideration of a motion for summary judgment is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a)-(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v. Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News & Observer, 597 F.3d at 576.

         The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23. When determining whether summary judgment is appropriate, a court must view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving party must offer some “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party must come forward with more than ‘mere speculation or the building of one inference upon another' ...


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