HUNTINGTON – Dish Network and Frontier Communications are quickly fighting back against a lawsuit filed last month by a woman who alleges they violated the West Virginia Consumer Credit and Protection Act.
Dish Network on June 14 filed a motion for partial dismissal of Plaintiff Deborah Huffman’s complaint, while Frontier filed its own motion to dismiss the same day. Huffman, meanwhile, has voluntarily dismissed her claims involving an alleged violated of a bankruptcy stay of debt collection.
Huffman filed her lawsuit in May in Putnam County Circuit Court, and it was removed to U.S. District Court for the Southern District of West Virginia in Huntington. Huffman is also asking for the case to be remanded to Putnam Circuit Court.
“(D)ispositive of all of Plaintiff’s claims is the fact that Frontier did not engage in any debt collection activity following Plaintiff’s filing for Chapter 7 bankruptcy protection, and the complaint doesn’t even allege that Frontier did,” the company’s motion says.
“That bankruptcy filing event is the sole underpinning of each and every one of Plaintiff’s causes of action.”
Huffman filed for Chapter 7 bankruptcy protection on Feb. 8. She says Dish began sending bills for satellite service and contract termination on March 4.
Dish also began calling Huffman’s home, she claims. She is represented by Benjamin Sheridan of Klein & Sheridan.
Her complaint says her privacy was invaded and she was harmed. She suffered annoyance, inconvenience, harassment and distress, she claims.
Dish moved to dismiss alleged violations of the WVCCPA and claims of negligence, intentional infliction of emotional distress and invasion of privacy. Its motion was filed only eight days after the case was removed to federal court.
“Plaintiff… is improperly attempting to use state law to regulate a creditor’s conduct with respect to a debtor after the debtor has filed a bankruptcy petition,” Dish’s motion says.
“In other words, Plaintiff is attempting to apply the WVCCPA statutes and West Virginia common law torts in a manner that would prohibit the creditor from contacting the debtor regarding the debtor’s failure to pay a just debt when collection of that debt has been stayed and is subject to discharge.”
Dish also says the standard for the conduct necessary to sustain a claim for intentional infliction of emotional distress is so extreme that it can’t be proven in the case.
“Plaintiff’s allegations – that Plaintiff felt Dish Network’s telephone calls to her were ‘harassing’ – is not ‘beyond all possible bounds of decency,’” the motion says.
Huffman’s memorandum in support of the motion to remand says she is not seeking more than $75,000 – a threshold that allows removal. She also says because she dismissed her cause of action for violation of the automatic bankruptcy stay, there is no longer a federal question relevant to the case.
From the West Virginia Record: Reach John O’Brien at firstname.lastname@example.org.