Harrison woman wins $32K after being foreclosed on

By Nathan Bass | Mar 13, 2013

CHARLESTON – In a March 8 opinion, the state Supreme Court affirmed the trial court’s awards of attorneys fees and civil penalties to a Harrison County woman in her case against Vanderbilt Mortgage and Finance.

Chief Justice Brent D. Benjamin authored the opinion of the unanimous court, which had consolidated the two separate actions into one.

The case arose out of the default on a loan by plaintiff Terri L. Cole and Vanderbilt’s subsequent foreclosure and purchase of the property at a trustee’s sale.

After Vanderbilt purchased the property, Cole refused to vacate the home, according to the opinion. Resultantly, Vanderbilt filed an unlawful detainer action against Cole.

Cole counter-claimed against Vanderbilt, alleging that Vanderbilt had violated the West Virginia Consumer Credit and Protection Act 57 times “by engaging in activity such as repeatedly calling relatives and clients after receiving requests that the calls cease, insulting Ms. Cole over the telephone, and revealing private details of the loan to third parties without Ms. Cole’s permission.”

Cole did not have a land-line phone for most of the time of her interaction with Vanderbilt and used the phones of relatives and clients she assisted while working her job as a certified nursing assistant for homebound individuals.

At the June 27, 2011, trial, the circuit court, after finding the unlawful detainer claim to be a matter of law to be decided by the court rather than the jury, found in favor of Vanderbilt on the claim and ordered Cole to vacate the property within 30 days.

Cole’s counterclaim issues were submitted to the jury, which found that Vanderbilt had committed 13 violations of the WVCCPA. The jury, however, awarded no damages. The judge entered an order awarding civil penalties of $32,125.24 to Cole on the 13 violations and Vanderbilt appealed.

Subsequent to this order, the court granted Cole’s motion for attorneys fees and costs, awarding $30,000 of the $48,852 requested. Vanderbilt appealed the award of attorneys fees to the state’s high court, as well.

“The basis of Vanderbilt’s argument that the circuit court erred by awarding civil penalties was solely in Vanderbilt’s objection to the award of civil penalties in the absence of any actual damages,” Benjamin wrote. “Vanderbilt does not argue that the circuit court abused its discretion by awarding civil penalties in any other way.

“Because we have found that an award of civil penalties under W. Va. Code § 46A-5-101(1), adjusted for inflation pursuant to § 46A-5-106, is not preconditioned on an award of actual damages, and because we find no constitutional limitations on the awardable amount of civil penalties within the limits of § 46A-5-101(1), we find that the circuit court did not abuse its discretion in awarding civil penalties to Ms. Cole.

Benjamin then turned to the issue of attorneys fees.

“Ms. Cole prevailed on only 13 of her 57 claims; however, she prevailed, in part, on all four sections of the WVCCPA that she claimed Vanderbilt violated. Neither the WVCCPA nor our case law requires that Ms. Cole prevail on the majority of her claims in order to receive attorney fees.

“The controlling law places the decision of whether to award attorney fees squarely within the discretion of the circuit court. Therefore, we find that the circuit court did not abuse its discretion by awarding attorney fees despite victory on less than half of Ms. Cole’s claims.”

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