West Virginia Record

Friday, January 24, 2020

Justices rule consumer protection claims do not survive death

By Kyla Asbury | Nov 17, 2016


CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that consumer credit and protection claims do not survive death.

Diane Horton, executrix of the Estate of Gene Ray Dudding appealed the June 18, 2015, order from Putnam Circuit Court that granted summary judgment to Professional Bureau of Collections of Maryland Inc. in her action against the respondent alleging it violated the West Virginia Consumer Credit and Protection Act.

After considering the parties arguments, relevant portions of the appendix and applicable law, the Supreme Court affirmed the circuit court’s order, according to the Nov. 15 opinion.

Justice Brent Benjamin authored the majority opinion. Chief Justice Menis Ketchum and Justices Margaret Workman and Allen Loughry concurred and authored a concurring opinion. Justice Robin Jean Davis dissented.

In August 2013, Dudding filed a complaint in Putnam Circuit Court alleging various causes of action against the respondent arising from its actions in attempting to collect a debt from him.

The decedent claimed that the respondent failed to disclose its name when making a demand for money upon the decedent’s indebtedness, in violation of West Virginia code, according to the opinion.

On July 9, 2014, Dudding died and the respondent filed a suggestion of death and a motion for summary judgment, arguing that the claims under the West Virginia Consumer Credit and Protection Act do not survive his death. Horton moved to substitute Dudding’s estate as plaintiff.

On June 18, 2015, the circuit court granted summary judgment in favor of the respondent. Horton then appealed the order.

The circuit court had reasoned that the decedent is not a “natural person” for purposes of the consumer protection act and that it found no evidence that any communications from the respondent were directed to the estate or to Horton as executrix.

The circuit court also found that there is no evidence that the estate is obligated to pay the alleged debt and concluded that the estate lacks standing to maintain a private right of action as a “consumer” within the meaning of the consumer protection act.

The Supreme Court agreed with the circuit court on the issue and affirmed the decision.

In their concurring opinion, authored by Loughry, he, Ketchum and Workman noted that while they concurred with the majority’s opinion, they wanted to write separately to clarify that the majority’s analysis yields equally to the broader conclusion that a cause of action pursuant to the unfair debt collection practices provisions of the West Virginia Consumer Credit and Protection Act is not survivable

“For reasons that are unclear and despite the petitioner’s assertion of a variety of violations of the unfair debt collection provisions of the WVCCPA, the majority unnecessarily restricts its holding to Section 127(c),” the opinion states. “Clearly, however, a cause of action arising under any portion of the unfair debt collection practices provisions of the WVCCPA does not survive by virtue of the unmistakable statutory language and application of our survivability statute…”

Loughry wrote that it is not for the Supreme Court to assess the wisdom of the survivability statute, but rather to apply it and that the Supreme Court is not assembled for the purpose of “sending messages.”

“It is the Legislature’s function to set policy,” he wrote. “Moreover, if mere ‘unfairness’ commands survivability, our survival statute would be rendered meaningless. Any action that does not survive under our statute allows the alleged wrongdoer to ‘escape;’ the Legislature, however, has made a policy determination to allow certain actions to abate upon death.”

Horton is represented by Anthony J. Majestro of Powell & Majestro; and Benjamin Sheridan of Klein Sheridan & Glazer.

The respondent is represented by David P. Cook Jr. of MacCorkle Lavender.

W.Va. Supreme Court of Appeals case number: 15-0692

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Organizations in this Story

Powell and MajestroWest Virginia Supreme Court of AppealsKlein & Sheridan LC