CHARLESTON – The West Virginia Supreme Court of Appeals has reversed a lawsuit alleging violations of the West Virginia Consumer Credit and Protection Act.
Valentine & Kebartas challenged the circuit court’s determination that the volume of telephone calls made by a debt collector to the consumer was sufficient to establish a violation of West Virginia code. The Supreme Court reversed the circuit court’s order.
V&K appealed the Jan. 15, 2016, verdict order from Raleigh Circuit Court, according to the June 12 opinion.
Justice Beth Walker authored the majority opinion. Justices Robin Jean Davis and Margaret Workman dissented. Workman authored a dissenting opinion.
V&K is a third-party debt collector who purchased Gary J. Lenahan’s delinquent consume account from ADT, a home security system provider.
ADT informed V&K that Lenahan owed $1,349.53 on his account. V&K began collection efforts on March 9, 2012 with a letter to Lenahan notifying him of the intent to collect the debt on the ADT account.
V&K then made telephone calls to Lenahan’s phone number using an auto dialer to place the phone calls.
Between March 10 and 25, 2012, V&K used its auto dialer to call Lenahan 22 times. Between March 26 and 28, 2012, the auto dialer placed 17 additional calls to Lenahan. Beginning on March 29 and continuing through Nov. 17, 2012, the auto dialer attempted 211 more calls to Lenahan between 8 a.m. and 9 p.m., but never more than six times per day.
In March 2013, Lenahan filed suit against V&K and a bench trial was held on Feb. 2, 2015. On May 22, 2015, the circuit court ruled that V&K violated West Virginia code. It’s verdict order, which awarded Lenahan $75,000, was entered on Jan. 15, 2016.
“The circuit court gave no apparent consideration to the unrefuted evidence in the record of V&K’s intent in placing the auto dialer calls to Mr. Lenahan,” Walker wrote in the majority opinion. “Mr. Lenahan acknowledged in his testimony that he had received a letter advising him of V&K’s attempt to collect the ADT debt.”
Similarly, the circuit court made no mention of the unrefuted testimony regarding V&K’s procedures to assure that its auto dialer placed calls within established limits as to time and volume in compliance with applicable laws.
“The record is devoid of any evidence contradicting V&K’s stated intention to collect a debt,” she wrote. “The calls continued because Mr. Lenahan never answered the telephone calls and never informed V&K that he contested the debt.”
Rather, the circuit court made an inference of intent to “harass or oppress” based upon its own inability to “fathom any possible legitimate purpose” for V&K’s auto dialer placing more calls over a three-day period in the third week of its eight-month collection effort than it placed in the first two weeks.
The circuit court surmised that after a certain amount of unanswered calls, a reasonable debt collector should know that the consumer does not want to be contacted, according to the majority opinion.
“However, the circuit court’s inference was based entirely on the volume of calls and no other evidence,” Walker wrote. “Moreover, the circuit court overlooked entirely the unrefuted evidence of V&K’s intent to collect the debt.”
Walker wrote that Lenahan’s silence alone was insufficient to have imputed knowledge to V&K that it should discontinue the auto dialer calls.
“Like the ill-advised analysis of whether V&K had a ‘legitimate purpose’ for placing auto dialer calls, it is likewise erroneous as a matter of law to impose a duty on a debt collector to discontinue debt collection efforts based solely on the fact that the consumer does not want to be contacted after a certain period of time that is subjectively known only to the consumer,” Walker wrote.
There is no evidence that V&K intended to annoy, abuse, oppress or threaten Lenahan in violation of West Virginia code, according to the majority opinion, leading the Supreme Court to reverse the decision.
In her dissenting opinion, Workman wrote that the majority’s reversal of the matter is without analytical or precedential support and that it effectively guts the import of the statute.
“Under the majority’s analysis, a debt collector could conceivably cause a debtor’s telephone to ring every five minutes into perpetuity and not run afoul of the statute,” Workman wrote. ‘In that event, under the majority’s analysis, the sheer volume and frequency of the calls are insufficient, without more, to establish intent to harass.”
What type of “other evidence” is needed or how a debtor could obtain such “other evidence” of intent to harass, the majority does not explain, according to her dissenting opinion.
“Rather, it places an impossible burden upon a debtor to adduce ‘other evidence’—aside from the plainly harassing volume and frequency of calls themselves—of an intent to harass,” she wrote. “In so doing, the majority has eviscerated the ‘causing a telephone to ring’ prohibition of subsection (d) in its entirety.”
V&K is represented by Albert C. Dunn Jr. of Bailey & Wyant.
Lenahan is represented by Ralph C. Young, Christopher B. Frost, Steven R. Broadwater Jr. and Jed R. Nolan of Hamilton, Burgess, Young & Pollard.
W.Va. Supreme Court of Appeals case number: 16-0127