Supreme Court overturns Trial Court verdict against Defendant in Debt Collection case

Valentine & Kebartas: Supreme Court of Appeals WV No. 16-0127

Of counsel, Abbie Dunn Jr. represented Bailey & Wyant in a WV Consumer Credit Protection case filed by a debtor primarily alleging that a debt collector violated West Virginia Code 46A-2-125(d) by making “repeated” and “continuous” calls to his telephone in order to collect the debt. It was specifically alleged that the collector’s calls amounted to harassment in the effort to collect the debt because over 250 calls were placed to the residence of Plaintiff without any calls being returned or answered; the theory presented to support the allegation that the 250 calls should be deemed evidence of an intent to harass by the Defendant was that after some many attempts to contact the debtor were made without a return call or call being answered; the collector should have realized that the debtor did not want to discuss the debt; therefore, continuing to call a debtor that refuses to talk to a creditor supports a factual finding that the creditor simply intended to harass the consumer as opposed to trying to collect the debt.


After a bench trial before Judge Burnside in Raleigh Co., the Court determined that the first 22 days made to the Plaintiff were not evidence of an improper attempt to collect the debt; however, because these first 22 calls were neither answered not returned, the Court concluded that Defendant should have determined that Plaintiff did not want to communicate with it about this debt; therefore, every call thereafter, unanswered and not returned, supported a factual finding that Defendant’s sole intent to continue to call was to harass the Plaintiff in order to compel the payment of the debt. The Court awarded Plaintiff $75,000.00 in damages consistent with a cap on damages stipulated to by Plaintiff with the initiation of the suit.


Defendant appealed the adverse ruling from the trial Court to the Supreme Court basically arguing that Plaintiff could not meet the burden of proof to establish a violation of Section 125(d) solely on the basis of the number of phone calls made to Plaintiff by Defendant, over time, absent any other conduct that would support a factual finding of the intent to harass the Plaintiff Defendant placing collection calls.


The Supreme Court, relying upon federal Court cases interpreting the analogous federal Debt Collection Practices Act, and specifically the discussion of same within the WV Federal District Court case of Bourne v. Mapother & Mapother, 998 F.Supp.2d 495 (S.D. W.Va. 2014), held that “the volume of unanswered calls in this case does not establish intent in violation of West Virginia Code 46A-2-125(d). Rather than answer any one of the 211 calls made by V&K in compliance with federal law over eight months, Mr. Lenahan remained silent and never informed V&K of the simple fact that he disputed the debt.” The Supreme Court specifically stated that the trial Court’s determination that V&K intended to harass Plaintiff solely on the basis of the volume of calls, and the inference that V&K should have made which was that Plaintiff did not want to talk to it, was not a sufficient factual basis to support the conclusion that V&K formed the requisite intent to harass Plaintiff. The Court concluded its discussion by holding that the trial Court’s drawing of a negative inference from the facts presented relieved Plaintiff of his burden of proof to establish a violation of Section 125(d). The Court stated “it is likewise erroneous as a matter of law to impose a duty on a debt collector to discontinue debt collection efforts based solely on the fact that the consumer does not want to be contacted after a certain period of time that is subjectively known only to the consumer.”


The decision of the trial Court was reversed by the Supreme Court and V&K was granted judgment as a matter of law.