CHARLESTON – Two West Virginia Supreme Court of Appeals Justices think the other three treated Paul White Chevrolet of South Charleston too gently.
The majority ruled in April that car owner Gloria Banks could sue to recover two $300 repossession fees that she paid Paul White Chevrolet.
If Justices Joseph Albright and Larry Starcher had their way, Paul White Chevrolet would just give the $600 back to Banks.
The loan note gave Banks ten days to cure a default, but Paul White Chevrolet took action to repossess the vehicle during the cure period.
"It simply makes no sense whatsoever to contemplate the possibility of collection of a repossession fee during the time when a creditor is barred by statute from actually repossessing the secured goods," Albright wrote in a concurring opinion.
All five Justices agreed in reversing Kanawha County Circuit Judge James Stucky, who in 2004 granted summary judgment to Paul White Chevrolet.
The majority held that Stucky failed to take into account the ten day rule, but they strained to avoid declaring the repossessions illegal.
They wrote, "Paul White would not appear to have had a right to repossess the vehicle on either of the dates…"
They wrote that the $300 fee "arguably could not be an expense incurred in an attempt to lawfully repossess goods."
They wrote, "A reasonable conclusion might well be that the fee was a debt collector's fee, which is expressly prohibited…"
Albright alone reserved the right to file a concurring opinion. Apparently Starcher preferred Albright's opinion to that of the majority, because he joined in it.
The case returns to Stucky.