CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the circuit court did not err in granting summary judgment to EOSCCA in a lawsuit alleging it violated the West Virginia Consumer Credit and Protection Act.
Edith Young appealed a Feb. 2, 2016, order of Kanawha Circuit Court granting summary judgment to EOSCCA in connection with her complaint against it asserting that it violated the West Virginia Consumer Credit and Protection Act.
Young challenged the circuit court’s ruling that she is not a “consumer” within the applicable definitions of the act and the Supreme Court ruled that the circuit court did not commit an error in reaching this decision, according to the May 17 opinion.
Chief Justice Allen Loughry authored the opinion.
Young filed the complaint on July 23, 2014, claiming it repeatedly called her home and continued to attempt to communicate with her after she indicated she was represented by counsel. She also alleged common law claims grounded in negligence, intentional infliction of emotional distress and invasion of privacy.
In her deposition, Young testified that she received numerous calls from the same 800 number and that “Bank Americard” appeared on her caller ID when each of those calls rang into her home.
Young claimed she never picked up the phone to speak with the caller and just registered the caller’s identifying information that appeared on her phone. She claims the only time she picked up the phone, she informed the caller she was being represented by an attorney and to contact that attorney, but that she never heard anyone on the other end.
The petitioner admittedly has a credit-related debt with Bank Americard, but she does not have any specific debt in connection with the calls that EOS made to her land line phone.
The calls EOS made to Young’s home were in an attempt to locate an AT&T customer who was delinquent on his account, according to the opinion.
On Dec. 11, 2015, EOS filed a motion for summary judgment, asserting that Young lacked standing to seek relief under the West Virginia Consumer Credit and Protection Act because she failed to fall within the applicable definitions of “consumer” provided in the act.
The court issued an order on Feb. 2, 2016, granting summary judgment to EOS and dismissing the complaint. Young then appealed the order.
“Under the Act, the term ‘consumer’ has a specific definition and only those persons meeting that definition may bring a private cause of action,” the opinion states. “Accordingly, we hold that by limiting the right to recover for a violation of the Act to those persons defined as ‘consumers,’ the Legislature has expressly prohibited any persons falling outside the definition of a ‘consumer’ from seeking damages and statutory penalties pursuant to the provisions of West Virginia Code § 46A-5-101.”
Given that Young clearly does not come within the definition of “consumer” set forth in West Virginia Code § 46A-2-122, the circuit court correctly ruled that she lacked standing to pursue a claim under the act, according to the opinion.
The petitioner is represented by Benjamin M. Sheridan of Klein & Sheridan.
The respondent is represented by Nicholas P. Mooney, Nicholas S. Preservati and David L. Shuman Jr. of Spilman Thomas & Battle.
W.Va. Supreme Court of Appeals case number: 16-0151
