On June 12, the Supreme Court of Appeals of West Virginia reversed a Circuit Court ruling and stated that a high volume of telephone calls from a debt collector to a consumer, absent any evidence the debt collector placed the calls with an intent to annoy, abuse, oppress, or threaten the consumer, is not sufficient to prove a violation of the West Virginia Consumer Credit and Protection Act, codified at W.Va. Code § 46A-2-125(d) (1974).
Section 125(d) prohibits debt collectors from calling consumers "with intent to annoy, abuse, oppress or threaten." The consumer sued the debt collector, alleging that the debt collector violated § 125(d) by placing a high volume of calls to the consumer. After the debt collector sent a letter notifying the consumer of its intent to initiate collection efforts to collect a debt it had purchased from the original creditor, the debt collector placed 250 calls to the consumer during an eight-month period, none of which the consumer answered.
After a bench trial, the Circuit Court ruled in a memorandum opinion that the debt collector?s unanswered telephone calls violated § 125(d). The Circuit Court entered judgment awarding the consumer $75,000 in damages (the stipulated maximum recovery). In its verdict order, the Circuit Court found that the debt collector, with no legitimate purpose "increased its volume and frequency of collection calls to [the consumer] in an attempt to harass or oppress [the consumer] into answering its calls," and that 230 of the unanswered calls placed to the consumer were in violation of the statute.
The Supreme Court of Appeals reversed, holding that a consumer must show evidence of intent to annoy, abuse, oppress, or threaten the consumer, and that silence alone is ?insufficient [for a debt collector] to have imputed knowledge? that it should discontinue making calls to the consumer. The Supreme Court further reasoned that a debt collector has no duty to end collection efforts merely because a consumer fails to answer collection calls based solely on the "act that [the consumer] does not want to be contacted after a certain period of time that is subjectively known only to [the consumer]."
The West Virginia Legislature amended § 125(d), effective June 15, 2015. The amended version of § 125(d) contains more specific guidelines for debt collectors with respect to call volume, prohibiting debt collectors from "[c]alling any person more than thirty times per week or engaging any person in telephone conversation more than ten times per week, or at unusual times or at times known to be inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called number." The Court, however, issued its ruling pursuant to the pre-amendment version of § 125(d) because the amended version was not in effect when the bench trial occurred.
Although the amended version of § 125(d) applies to claims regarding calls placed on or after June 15, 2015, debt collectors are still susceptible to claims applicable under the prior version of § 125(d). The statute of limitation period for the WVCCPA is four years from the date of the alleged violation. Because the pre-amendment version of § 125(d) applies to calls placed on or before June 14, 2015, consumers are continuing to file suits for alleged violations under the pre-amendment version of § 125(d). Debt collectors, therefore, will remain susceptible to pre-amendment claims for the next several years. Importantly, for consumers bringing pre-amendment claims, showing a high volume of calls is no longer enough to prove "intent to annoy, abuse, oppress or threaten" in violation of the WVCCPA.
Please click here for a full copy of the opinion.
The Financial Services Litigation group at Troutman Sanders has handled hundreds of contested matters in West Virginia, including individual and class action cases and arbitrations, through appeal to the Fourth Circuit. We will continue to monitor decisions in West Virginia federal and state courts to identify and advise new compliance risks and strategies.
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