West Virginia Record

Tuesday, October 15, 2019

Plaintiff with $869K default judgment against Bank of America settles

By John O'Brien | Sep 17, 2013

BECKLEY – Through a pair of settlements, Bank of America is rid of a plaintiff who obtained a default judgment of almost $900,000 against it.

Bank of America recently settled two lawsuits brought by Jason Prather, who sued the company in 2011 and 2013 over debt collection calls it allegedly made after being notified Prather was represented by counsel. Such calls are a violation of the West Virginia Consumer Credit and Protection Act.

Prather asked for and received default judgment in 2011 in the amount of $869,813.76, with $217,453.44 going to Prather’s attorneys.

Bank of America claimed it wasn’t properly noticed and the difference between Prather’s actual damages, which it said were $0, and awarded penalty was excessive when it asked Raleigh County Circuit Court Judge Robert A. Burnside, Jr., to alter or set aside the judgment.

“The Return of Service purports to show the signature of Philip Suttle as proof that Plaintiff delivered to BOA the Summons and Complaint,” attorneys wrote in 2011.

“However, Suttle is not, and never has been, employed by BOA. BOA contracts with a company known as Beavex to perform certain functions in the Greensboro, N.C., area such as the physical collection of BOA’s mail.

“Suttle is employed by Beavex. Additionally, Suttle has never been authorized as an agent to accept service for BOA.”

The address listed on the summons in Greensboro is a post office box used for correspondence related to the bankruptcy of MBNA, which BOA acquired, the company said.

“This Court lacks jurisdiction to enter default because proper notice of this action was never given to BOA, Plaintiff wrongly named BOA, and because default was entered based upon mistake, inadvertence, surprise, excusable neglect or unavoidable cause,” attorneys for BOA wrote.

Fayetteville attorney Greg Hewitt wrote later in the case that Prather is current on his Bank of America mortgage, but the company continued to report a debt on his credit. Hewitt asked for an injunction against the information being placed on the credit report.

Eventually, the case was removed to U.S. District Court for the Southern District of West Virginia. Prather’s lawsuit alleged Bank of America called him 144 times after being notified he was represented by counsel.

In federal court, Prather argued his case should be remanded back to Raleigh Circuit Court.

On June 10, after Judge Irene Berger lifted a stay, the case was dismissed as settled. Terms were confidential.

Six months earlier, Prather had filed another complaint against Bank of America. It stipulated that he would not seek more than $74,999, an amount that would keep the case in state court, and would seek damages for conduct committed after judgment was entered in the first case.

Bank of America asked Raleigh Judge John A. Hutchison to dismiss the second complaint, but he denied the request on April 26.

“Upon consideration of the above caselaw and rules and other pertinent legal authorities, the Court finds that, in viewing the Complaint in a light most favorable to the Plaintiff and taking its allegations as true, the Complaint sufficiently provides fair notice of the nature of the Plaintiff’s claims to the Court and the Defendant,” the decision says.

On June 10, Hutchison was notified of a settlement that was reached during a May 21 mediation session.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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