CHARLESTON – The state Supreme Court has ruled the West Virginia Consumer Credit and Protection Act  applies to a homeowner's association's attempts to collect delinquent assessments.

The case involves a dispute between a homeowners association and certain homeowners who have failed to pay their association assessments, according to the ruling.

Justice Robin Jean Davis delivered the opinion of the court. Justice Allen Loughry concurred and Justice Brent Benjamin dissented.

"The parties disagree over the ability of a West Virginia limited expense planned community to assert a common law lien on real property for unpaid association assessments, attorney's fees, and costs," the majority opinion states. "In addition, we are asked to decide whether an association's attempts to collect delinquent assessments are governed by the West Virginia Consumer Credit and Protection Act."

The homeowners appealed the circuit court's grant of summary judgment resolving the issues in favor of the homeowners association.

The WVSC concluded that West Virginia code authorized a consensual common law lien against real property and that the unfair debt collection provisions of the West Virginia Consumer Credit and Protection Act do apply to a homeowners association's attempts to collect delinquent assessments.

The WVSC affirmed in part and reversed in part the circuit court's decision and remand the case for further proceedings.

James Lampley acquired title to real property within Webber Springs by deed on Feb. 25, 2005, and James R. Fleet and Jamila J. Fleet acquired a title to real property within Webber Springs by deed on May 6, 2005.

On Jan. 3, 2012, Webber Springs filed separate complaints against the homeowners for failing to pay their annual homeowners assessments. The homeowners then filed to consolidate their cases and Webber Springs moved for summary judgment in the counterclaims asserted by the homeowners.

By order entered April 25, 2014, Berkeley Circuit Court granted partial summary judgment in favor of Webber Springs as to all of the homeowners' counterclaims.

"Because the circuit court ruled that the WVCCPA did not apply, that court has made no rulings purporting to resolve the Homeowners' specific claims under the WVCCPA, including their claim that Webber Springs is prohibited from collecting attorney’s fees and costs," the opinion states. "Accordingly, we decline to address the Homeowners’ contention that Webber Springs is prohibited from collecting attorney’s fees and costs as such a decision by this court would be advisory."

The WVSC conclude that West Virginia code authorize a consensual common law lien against real property and that the unfair debt collection provisions of the WVCCPA do apply to a homeowners association's attempts to collect delinquent assessments.

In Loughry's concurring opinion, he stated that given the broad language of certain definitions contained within the unfair debt collection provisions of the WVCCPA, he "begrudgingly concur[s] in the majority’s decision that those provisions apply to a homeowners association’s attempts to collect delinquent assessments."

"However, I urge the Legislature to review the policy considerations behind the applicability of the WVCCPA to such assessments and other similar non-consumer debts," the concurring opinion states.

The petitioners were represented by Stephen G. Skinner and Anthony J. Delligatti of Skinner Law Firm.

The respondent was represented by Christopher J. Regan and James E. Causey of Bordas & Bordas; Anthony J. Majestro of Powell & Majestro; Susan R. Snowden and Jason S. Murphy of Martin & Seibert; and Tammy Mitchell McWilliams of Trump & Trump LC.

W.Va. Supreme Court of Appeals case number: 14-0637

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