On June 12, 2017, the Supreme Court of Appeals for the State of West Virginia issued an opinion that a debt collector did not violate West Virginia Code § 46A-2-125(d) (1974) by calling a consumer over 250 times during an eight-month period. The court reversed a earlier, opposite decision reached after a bench trial. The case is Valentine & Kebartas, Inc. v. Lenahan (Case No. 16-0127, WV Supreme Court of Appeals).
A copy of the opinion can be found here.
The version of West Virginia Code § 46A-2-125 in effect at the time of the bench trial in this case states as follows:
No debt collector shall unreasonably oppress or abuse any person in connection with the collection of or attempt to collect any claim alleged to be due and owing by that person to another. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(a) The use of profane or obscene language or language that is intended to unreasonably abuse the hearer or reader;
(b) The placement of telephone calls without disclosure of the caller’s identity and with the intent to annoy, harass or threaten any person at the called number.
(c) Causing expense to any person in the form of long distance telephone tolls, telegram fees or other charges incurred by a medium of communication, by concealment of the true purpose of the communication; and
(d) Causing 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.
The court’s opinion concisely outlined the facts in the case. Valentine & Kebartas (V&K) is a third-party debt collector who purchased Mr. Lenahan’s delinquent consumer account from ADT, a home security system provider. ADT informed V&K that Mr. Lenahan owed $1,349.53 on the account. The facts are undisputed that Mr. Lenahan informed ADT that he denied owing the debt. Similarly, there is no dispute that Mr. Lenahan never notified V&K that he denied owing the debt.
V&K’s collection efforts commenced with a March 9, 2012, letter to Mr. Lenahan notifying him of V&K’s intent to collect the debt on the ADT account. Mr. Lenahan admitted receiving the letter. Thereafter, V&K made telephone calls to the telephone number provided by ADT for Mr. Lenahan.
The number of telephone calls placed by V&K to Mr. Lenahan is also not in dispute. Between March 10 and 25, 2012, V&K called Mr. Lenahan twenty-two times. Between March 26 and 28, 2012, they placed seventeen additional calls to Mr. Lenahan. Beginning on March 29 and continuing through November 17, 2012, V&K attempted 211 more calls to Mr. Lenahan at times after 8:00 a.m. but before 9:00 p.m. on various days, never more than six times per day. The parties agree that V&K attempted to call Mr. Lenahan 250 times during the eight-month period between March 10, 2012, and November 17, 2012.
Mr. Lenahan never answered the 250 phone calls and V&K never left a message. Lenahan kept no record of the phone calls and never contacted V&K to dispute the debt.
Following the 250 attempted telephone calls, the record indicates that three additional phone calls from V&K were answered by Mr. Lenahan on November 17, 19 and 20, 2012. Mr. Lenahan argued at trial that he informed V&K during one or more of these three phone calls that he was represented by counsel. He asserted at trial that one or two of the subsequent calls were made in violation of West Virginia Code § 46A-2-128, which among other things limits a debt collector from contacting a consumer once the debt collector received notice that the consumer is represented by counsel. The circuit court did not rule on this claim and neither party raised it on appeal. Therefore, the court did not address the issue.
Mr. Lenahan filed suit against V&K in March 2013. During a bench trial on February 2, 2015, a V&K representative and Mr. Lenahan were the only two witnesses who testified. On May 22, 2015, the circuit court ruled in a memorandum opinion that V&K’s unanswered telephone calls to Mr. Lenahan violated West Virginia Code § 46A-2125(d)(1974). On January 15, 2016,5 the circuit entered its Verdict Order awarding Mr. Lenahan $75,000 in damages. V&K filed this appeal.
The Supreme Court Opinion
As noted above, the West Virginia Supreme Court reversed the trial court decision. The court focused its “attention on whether the circuit court erred in determining that the volume of V&K’s telephone calls to Mr. Lenahan constituted abuse or unreasonable oppression by virtue of “causing a telephone to ring . . . repeatedly or continuously . . . with intent to annoy, abuse, oppress or threaten” under West Virginia Code § 46A-2-125(d).”
The court examined cases in other jurisdictions that discussed call volume under 15 U.S.C. § 1692d(5), of the Fair Debt Collection Practices Act, (FDCPA ) the provision of the “FDCPA” nearly identical to West Virginia Code §46A-2-125(d) and felt that the compelling argument was that call volume alone, absent evidence of other abusive conduct, is insufficient to sustain a claim.
The court wrote:
“Clearly, the weight of federal authority requires some evidence of intent to establish liability under the federal equivalent to West Virginia Code § 46A-2-125(d). We agree with the reasoning of these federal courts interpreting a nearly identical statute. We similarly find that the volume of unanswered calls in this case does not establish intent in violation of West Virginia Code § 46A-2125(d). Rather than answer any one of the 211 calls made by V&K in compliance with federal law over eight months, Mr. Lenahan remained silent and never informed V&K of the simple fact that he disputed the debt. Accordingly, we find that the circuit court erred as a matter of law in finding that V&K violated West Virginia Code § 46A-2-125(d).
The calls continued because Mr. Lenahan never answered the telephone calls and never informed V&K that he contested the debt. 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. However, the circuit court’s inference was based entirely on the volume of calls and no other evidence.”
To be perfectly honest, this result is surprising, not because of the court’s reasoning, and not because of the particular facts presented. It is surprising because of the venue. West Virginia has a reputation as being VERY pro-consumer. Many third-party agencies dramatically restrict collection calls into West Virginia and proceed with extreme caution in dealing with West Virginia accounts under the theory that the RISK/REWARD analysis suggests the potential exposure is not worth the potential revenue derived from additional activity on those accounts.
This is a very positive outcome considering the above.