The West Virginia Supreme Court recently ruled in favor of a debt collector in an action alleging a violation of West Virginia’s Consumer Credit and Protection Act. In its June 12 decision, the court held that call volume, absent evidence of some other abusive conduct or intent to harass or oppress, is insufficient to prove that the debt collector violated the Act.

The facts of the case were undisputed. The defendant, Valentine & Kebartas, Inc. (V&K), is a third party debt collector that purchased the plaintiff’s debt. While the plaintiff disputed the debt with the original creditor, he did not dispute it with V&K. V&K called the plaintiff a total of 250 times over six months, all of the calls occurred after 8:00 a.m. and before 9:00 p.m. Specifically, V&K called the plaintiff 22 times between March 10 and 26, 2012, 17 times between March 26 and 28, 2012, and 211 times between March 29 and November 17, 2012. V&K did not leave any messages. The plaintiff never answered any of the calls, did not keep a record of them, and did not contact V&K in any manner to dispute the debt.

The plaintiff sued, alleging that the volume of calls was intended to harass or oppress him in violation of West Virginia Code § 46A-2-125(d). After a bench trial, the circuit court found in favor of the plaintiff, concluding that the increase in calls between March 26 and 28, 2012 could not serve any legitimate purpose, and therefore, the only reasonable conclusion was that V&K intended to harass or oppress the plaintiff. The circuit court awarded the plaintiff $75,000 in damages.

On appeal, the West Virginia Supreme Court reversed. The version of West Virginia Code § 46A-2-125(d) in effect at the time of the trial prohibited "[c]ausing the telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with the intent to annoy, abuse, oppress, or threaten any person at the called number." Looking to federal cases interpreting the nearly identical provision of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692d(5), the Supreme Court agreed with a line of cases holding that, in the absence of other evidence of abusive conduct, the volume of unanswered calls is insufficient to establish a FDCPA claim against a debt collector.

In addition, the Supreme Court rebuked the circuit court for assuming that V&K had no legitimate basis for increasing the call volume and for holding that the plaintiff’s silence and failure to answer calls was sufficient to give notice to V&K that the plaintiff did not wished to be called anymore. The court explained that these assumptions improperly relieved the plaintiff of his burden of proof at trial.

The decision is an unexpected and positive development in light of West Virginia’s historically aggressive approach to regulating and limiting debt collection activity. However, it may be of limited effect because the Supreme Court’s decision was based on the prior version of the Consumer Credit and Protection Act. The Act was amended in 2015, and the Supreme Court specifically declined to consider the amendment since it was not in effect as of the trial date.

The current version of the Act replaces the general prohibition against "repeated[] or continuous[]" calls with a more specific threshold of 30 calls or 10 telephone conversations per week, or calls made at unusual or inconvenient times. However, the amendment also preserved the language specifying that calls that exceed the defined thresholds violate the Act when they are made "with intent to annoy, abuse, oppress or threaten." As a result¬, although plaintiffs will likely argue that the Supreme Court’s decision only applies to conduct occurring prior to the 2015 amendment, the preservation of the intent clause may allow defendants to invoke this decision in cases concerning more recent calls.

Attorneys in Ballard Spahr's Consumer Financial Services Group regularly advise clients on compliance with the FDCPA and state debt collection laws and defend clients in FDCPA lawsuits and enforcement matters. The Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance.

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