WEST VIRGINIA RECORD

CHARLESTON - When Paul White Chevrolet repossession man Donald Weekley showed up where Gloria Banks worked, she understood she would have to scrounge a car payment on the spot.

She didn't know she would also have to pay Weekley $300.

When it happened again, Banks sued Paul White Chevrolet. Now, thanks to the West Virginia Supreme Court of Appeals, she can try to recover the $600.

The Justices in April reversed a decision of Kanawha County Circuit Judge James Stucky, who threw out her claim in 2004.

Stucky based his decision on a distinction between repossession and debt collection, but according to the Justices, Stucky missed the point.

The loan note gave Banks 10 days to remedy any default, the Justices wrote, but Weekley approached her on the fifth day and the second day.

Banks signed the loan agreement in 2000. It said, "We may immediately take possession of the Property by legal process or self-help, but in doing so we may not breach the peace or unlawfully enter onto your premises."

It said, "This right of ours is subject to your limited right to cure some defaults and to get notice of this right to cure."

Paul White Chevrolet assigned the loan to a bank, but retained responsibility in the event of default.

After 30 timely payments, Banks slipped. The bank sent her a notice December 12, 2002, giving ten days to cure her default.

Weekley came to her job December 17. By check she borrowed a car payment and Weekley's $300 fee. Weekley took her to a bank to cash the check.

The bank sent Banks another ten day notice May 12, 2003.

Weekley showed up May 14. She borrowed the car payment plus his fee.

Her suit accused Paul White Chevrolet of unlawful debt collection practices.

Paul White Chevrolet moved for summary judgment, arguing that repossession men follow the Uniform Commercial Code, not debt collection law.

Stucky agreed. He granted summary judgment Sept. 10, 2004.

Before the Supreme Court of Appeals, John Barrett of Charleston represented Banks and Albert Dunn Jr. of Charleston represented Paul White Chevrolet.

The Justices ruled that Stucky committed an error.

They wrote, "The record demonstrates that Weekley approached Banks both in December of 2002 and again in May of 2003 before the expiration of each respective ten day period."

They wrote, "In so doing, not only did Paul White arguably violate the express terms of its own contract, but Paul White also may have invited whatever additional expenses it incurred through the employ of Weekley's services."

Paul White Chevrolet apparently had no right to repossess the car on either of Weekley's visits, they wrote.

"Accordingly, the additional $300 fee charged by Weekley upon recovery of the late payment arguably could not be an expense incurred in an attempt to lawfully repossess goods," they wrote.

A jury must decide that question, they wrote.