Boczek v. Pentagon Federal Credit Union d/b/a PENFED

Filing 40

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS [ECF NO. 5 ]. Pentagon Federal Credit Unions Motion to Dismiss [ECF No. 5] is DENIED and Plaintiff has sufficiently stated a cause of action under the WVCCPA. Signed by Chief District Judge Thomas S Kleeh on 3/26/2024. (hrc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
JOSEPH BOCZEK,
Plaintiff,
v.

CIVIL ACTION NO. 1:23-CV-43
(KLEEH)

PENTAGON FEDERAL CREDIT UNION
d/b/a PENFED,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]
Pending before the Court is Defendant Pentagon Federal Credit
Union’s Motion to Dismiss [ECF No. 5]. For the reasons discussed
herein, Pentagon Federal Credit Union’s motion to dismiss is
DENIED.
I.

BACKGROUND

On or about June 22, 2022, Plaintiff Joseph Boczek entered
into a Promissory Note with Pentagon Federal Credit Union (“PenFed”
or “Defendant”) to refinance a vehicle loan. ECF No. 1, Compl. at
¶ 18. PenFed is a federal credit union which acts as both a lender
and

a

loan

servicer.

Id.

at

¶

13.

Accordingly,

PenFed

both

“originates and refinances loans, and exercises the servicing
rights to collect monthly payments, charge fees, [and] enforce the
Promissory Notes.” Id.
Plaintiff alleges he was charged a $5.00 “pay-to-pay” fee for
making his monthly loan payment over the telephone. Id. at ¶ 19.

Boczek v. Pentagon Federal Credit Union

1:23-CV-43

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

However, neither the Promissory Note nor a statute authorizes
PenFed to impose the $5.00 fee. Id. at ¶¶ 16-17, 20. Moreover,
PenFed charged Plaintiff $5.00 to make his monthly payment over
the phone, but Plaintiff alleges that the pay-to-pay transaction
costs $0.30 per transaction. Id. at ¶ 15. Thus, Plaintiff alleges
that PenFed profits off the pay-to-pay fees. Id.
Based

upon

this

practice,

Plaintiff

filed

suit

alleging

PenFed engaged in repeated violations of Article 2 of the West
Virginia Consumer Credit and Protection Act, including W. Va. Code
§§ 46A-2-128, 46A-2-128(c), 46A-2-127, 46A-2-127(g); 46A-2-127(d),
and 46A-2-124(f).
II.

PROCEDURAL HISTORY

On May 16, 2023, Plaintiff Joseph Boczek, on behalf of himself
and all persons similarly situated filed a class action complaint
alleging

violation

of

the

West

Virginia

Consumer

Credit

and

Protection Act (“WVCCPA”). ECF No. 1. On August 7, 2023, PenFed
moved to dismiss Plaintiff’s Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. ECF No. 5. On September
5, 2023, Plaintiff filed his response in opposition to Defendant’s
motion to dismiss. ECF No. 11. Subsequently, PenFed replied in
support of its motion to dismiss on September 26, 2023. ECF No.
18. The motion to dismiss is thus fully briefed and ripe for
review.
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

III. STANDARD OF REVIEW
Rule 12(b)(6) allows a defendant to move for dismissal upon
the ground that a complaint does not “state a claim upon which
relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,
a court “must accept as true all of the factual allegations
contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan v. Allain,
478 U.S. 265, 286 (1986).
A court should dismiss a complaint if it does not contain
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plausibility exists “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992). Dismissal is appropriate only
if “it appears to be a certainty that the plaintiff would be
entitled to no relief under any state of facts which could be

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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

proven in support of its claim.” Johnson v. Mueller, 415 F.2d 354,
355 (4th Cir. 1969).
IV.

APPLICABLE LAW AND DISCUSSION

Plaintiff’s claim relies upon multiple provisions within the
West Virginia Consumer Credit and Protection Act (“WVCCPA”). The
Supreme Court of Appeals of West Virginia has stated that the
“purpose of the CCPA is to protect consumers from unfair, illegal,
and deceptive acts or practices by providing an avenue of relief
for consumers who would otherwise have difficulty proving their
case under a more traditional cause of action.” State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 777,
461 S.E.2d 516, 523 (1995). Furthermore, “the WVCCPA is to be given
a broad and liberal construction.” Bourne v. Mapother & Mapother,
P.S.C., 998 F. Supp. 2d 495, 500 (S.D.W. Va. 2014). Because the
WVCCPA is “clearly remedial in nature, we must construe the statute
liberally

so

as

to

furnish

and

accomplish

all

the

purposes

intended.” State ex rel. McGraw, 194 W. Va. at 777.
A. Plaintiff has sufficiently pled that PenFed is a debt
collector under the WVCCPA.
Plaintiff’s Complaint alleges facts, which if true, would
support that PenFed is a “debt collector” under the WVCCPA. Under
the WVCCPA, a “debt collector” includes “any person or organization
engaging directly or indirectly in debt collection.” W. Va. Code
§46A-2-122(d). Furthermore, debt collection “means any action,
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MOTION TO DISMISS [ECF NO. 5]

conduct or practice of soliciting claims for collection or in the
collection of claims owed or due or alleged to be owed or due by
a consumer.” Id. at §46A-2-122(c).
The Supreme Court of Appeals of West Virginia has further
clarified that the plain meaning of §46A-2-122 “requires that the
provisions of article 2 of Chapter 46A regulating improper debt
collection practices in consumer credit sales must be applied alike
to all who engage in debt collection, be they professional debt
collectors or creditors collecting their own debts.”  Syl. pt. 3,
Thomas v. Firestone Tire & Rubber Co.,  164 W.Va. 763, 266 S.E.2d
905 (1980); Barr v. NCB Mgmt. Servs., Inc., 227 W. Va. 507, 513,
711 S.E.2d 577, 583 (2011). “The Court emphasized the legislature's
use of the word ‘any’ in defining a debt collector, and stated ‘it
would be improper for this Court to limit the application of the
statute to the activities of professional collection agencies.’”
Patrick v. PHH Mortg. Corp., 937 F. Supp. 2d 773, 782 (N.D.W. Va.
2013) (discussing Thomas,164 W.Va. 763).
Defendant argues Plaintiff’s Complaint should be dismissed
because PenFed is not a “debt collector” and did not engage in
“debt collection.” ECF No. 5-1, at pp. 3-4. Specifically, Defendant
contends that the $5.00 pay-to-pay fee does not qualify as a
“claim” under the WVCCPA and there was no debt collection. Id. at
pp. 3-5.
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

In contrast, Plaintiff states that PenFed’s arguments do not
support dismissal and that the Complaint alleges Defendant engages
in debt collection through the collecting of the monthly auto loan
payments. ECF No. 11, at pp. 5-6. The Court agrees. As pled, PenFed
is the lender and servicer of Plaintiff’s automobile loan; thus,
PenFed is clearly engaged directly in debt collection.
Defendant further seeks to distinguish PenFed’s collection of
the monthly auto loan payment from the collection of the $5.00
fee, thus arguing there is not a “claim owed” or a “collection”.
ECF No. 5-1, at pp. 4-6. However, Plaintiff argues that the “claim
owed” in the Complaint is Mr. Boczek’s automobile loan and that
his legal claims arise “from extra amounts collected from him by
PenFed on a duty to pay money based on his prior contract.” ECF
No. 11, at pp. 7-8. Furthermore, the solicitation of the $5.00
fee,

while

receiving

the

auto

loan

payment

amounts

to

a

“collection” under the WVCCPA. Id. at 9.
The allegations in Plaintiff’s Complaint are sufficient to
support that PenFed is a “debt collector” and that it engaged in
“debt collection” when collecting the automobile loan payment and
the $5.00 pay-to-pay fee. These definitions are to be interpreted
broadly and Defendant’s interpretations are exceedingly narrow,
especially at the 12(b)(6) phase. As pled, Plaintiff’s claims fall
within the WVCCPA because Mr. Boczek entered into an agreement
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MOTION TO DISMISS [ECF NO. 5]

with PenFed to refinance his auto loan; when paying his monthly
payment on the Promissory Note to PenFed by telephone, he is
charged an additional $5.00 fee. The $5.00 pay-to-pay fee appears
to be a “processing or transaction fee[] associated with the
primary obligation.” Muhammad v. PNC Bank N.A., 2016 WL 815289 at
*3 (S.D. W. Va. Feb. 29, 2016). Because Mr. Boczek alleges that he
was charged the fee in connection with his auto loan, the facts in
the Complaint are enough to allege that the pay-to-pay fees were
incidental to the loan. Thus, Defendant’s Motion to Dismiss [ECF
No. 5] is DENIED on these grounds.
B. Plaintiff
WVCCPA.

has

sufficiently

pled

violations

of

the

Plaintiff relies upon multiple provisions of the WVCCPA to
support his claim against PenFed. The Court will address each
WVCCPA Provision in turn.
1. West Virginia Code §46A-2-128
Section 46A-2-128 of the WVCCPA provides that “[n]o debt
collector may use unfair or unconscionable means to collect or
attempt

to

collect

any

claim.”

W.

Va.

Code

§46A-2-128.

Specifically, Plaintiff alleges PenFed violated §46A-2-128(c) by
“collecting or attempting to collect collection fees or charges
from a borrower for any part of the debt collector’s fee or charge
for services rendered by the debt collector” [ECF No. 1, at ¶
39(b)] and §46A-2-128(d) by “collecting or attempting to collect
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fees, which are neither expressly authorized by any agreement
creating or modifying the obligation or by statute or regulation.”
Id. at ¶ 39(c).
PenFed argues Plaintiff has failed to plausibly allege any
violation of Section 128 because (1) the $ 5.00 pay-to-pay fee is
not an “unconscionable or unfair means” of collecting debt and (2)
the $5.00 pay-to-pay fee is not incidental to the principal auto
loan obligation, but rather is a convenience fee for the additional
optional service of paying the loan by phone. ECF No. 5-1, at pp.
6-7. Alternatively, Defendant contends Section 128 is preempted by
federal credit union regulations.
a. The Complaint sufficiently alleges violations of
“unconscionable or unfair means” of collecting debt.
Plaintiff disputes Defendant’s arguments and maintains that
the Complaint adequately alleges violations of §46A-2-128. See ECF
No. 11, at pp. 10-13. First, Plaintiff contends that subsections
(a) through (f) provide examples of conduct which is “unfair or
unconscionable” under the WVCCPA. Id. at p. 10. The Court agrees.
Section 46A-2-128 clearly states that “the following conduct is
deemed to violate this section,” before listing examples of unfair
or unconscionable conduct. §46A-2-128. Plaintiff is not required
to

plead

unconscionability

to

support

these

claims,

beyond

providing facts which evidence PenFed engaged in some conduct
prohibited under subsections (a) through (f).
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MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

Plaintiff meets his pleading burden with regard to §§ 46A-2128(c) and (d). First, Plaintiff alleges PenFed violated § 46A-2128(c)

because

“[b]y

charging

or

collecting

Pay-to-Pay

Fees,

Defendant attempted to collect from Plaintiff a part of the
Defendant’s fee or charge for services rendered.” ECF No. 1, at ¶
22. Collecting the $ 5.00 fee to cover the processing fees for
telephone payments, if true, would clearly qualify as “collecting
. . . charges from a borrower for any part of the debt collector’s
fee or charge for services rendered.” § 46A-2-128(c). Second,
Plaintiff alleges PenFed violated § 46A-2-128(d) “[b]y charging or
collecting Pay-to-Pay Fees not authorized by the Promissory Note.”
ECF No. 1, at ¶ 23. Assuming the Promissory Note does not permit
PenFed to charge the $5.00 fee for telephone payments as alleged
in the Complaint (ECF No. 1 at ¶ 3),1 such conduct would qualify
as collecting fees that are not expressly authorized by the
agreement.
b. Plaintiff pled sufficient facts to support that the
fee is incidental to the loan payment.
Defendant argues Plaintiff did not allege that the $5.00 payto-pay fee was incidental to the auto loan monthly payment. ECF
No. 5-1, at pp. 7-8. Defendant relies upon a few federal district

Again, the Court assumes the Complaint’s allegations are true for
purposes of disposing of a Rule 12(b)(6) motion. See Simpson v. Ocwen
Loan Servicing, LLC, No. 2:19-CV-29, 2020 WL 1430470, at *1 (N.D.W. Va.
March 23, 2020).
1

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court opinions to support its position that the $5.00 fee is for
an

optional

service

[payment

by

telephone]

and

is

thus

not

incidental to the principal debt. Id. (citing Garbutt v. Ocwen
Loan Servicing, LLC, No. 8:20-CV-136-T-36JSS, 2020 WL 5641999, at
*4 (M.D. Fla. Sept. 22, 2020; Est. of Campbell v. Ocwen Loan
Servicing, LLC, 467 F. Supp. 3d 1262, 1265 (S.D. Fla. 2020); Bardak
v. Ocwen Loan Servicing, No. 8:19-cv-1111-24TGW, 2020 WL 5104523
at *4 (M.D. Fla. Aug. 12, 2020); Reid v. Ocwen Loan Servicing, LLC,
No. 20-cv-80130, 2020 WL 5104539, at *1 (S.D. Fla. May 4, 2020);
and

Flores

v.

Collection

Consultants

of

California,

No.

SACV140771DOCRNBX, 2015 WL 4254032,at *10 (C.D. Cal. Mar. 20,
2015)).
However,

Plaintiff

points

to

multiple

cases

including

a

decision from the United States District Court for the Southern
District of West Virginia, which reject Defendant’s argument that
the service fees are separate transactions. ECF No. 11, at pp. 1113 (collecting over fifteen cases). The Court is particularly
persuaded by Judge Goodwin’s opinion in Muhammad v. PNC Bank, N.A.,
No. 2:15-CV-16190, 2016 WL 815289, (S.D.W. Va. Feb. 29, 2016). In
Muhammad¸ the Court found that speed pay fees – fees related to
payment of the underlying loan - are “processing or transaction 
fees associated with the primary obligation.” Id. at *2. In
reaching this conclusion, the Court considered:
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Even though neither the Credit & Protection
Act nor the Supreme Court of Appeals of West
Virginia have defined “incidental” for the
purposes of this section, the Supreme Court of
Appeals of West Virginia “has consistently
stated that the [Credit & Protection Act] is
to be given a broad and liberal construction.
Id. (internal citations omitted). The Court also looked to the
common dictionary definitions of “incidental” to assess whether
the plaintiff’s claims were sufficient based on the allegations
and reasonable inferences. See Id. at *3. Ultimately, the Court
concluded that the plaintiff pled enough facts to state a claim
for violations under § 46A-2-128(d) because the speed pay fees
were paid to expedite crediting of payment on the principal
allegation and the plaintiff was charged these fees in connection
with his loan. Id.
Here, Plaintiff alleges that he was charged $5.00 when he
made his monthly payment over the telephone. ECF No. 1, at ¶ 19.
Viewing

the

allegations

in

the

light

most

favorable

to

the

Plaintiff, it is certainly reasonable to conclude that the payto-pay fee is incidental to the underlying auto loan payment when
it was paid in connection with the monthly payment. Moreover, given
that the Supreme Court of Appeals for West Virginia has not defined
“incidental” or spoken as to whether a pay-to-pay fee is a separate
debt, the Court declines to find that Plaintiff’s claim fails as
a matter of law at the pleading stage. Both parties point to case
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law which they contend supports their position. Thus, further
analysis of this matter’s specific facts would be more appropriate
following discovery. Presently, Plaintiff has alleged sufficient
facts to plausibly state a claim. See Segal v. Dinsmore & Shohl,
LLP, No. 20-CV-267, 2021 WL 10353366, at *3-4 (N.D.W. Va. Sept.
30, 2021). Thus, Defendant’s Motion to Dismiss [ECF No. 5] is
DENIED as it relates to Plaintiff’s claims under § 46A-2-128.
c. Section 128 is not preempted by National Credit
Union Administration regulations.
In
claims

the
under

alternative,
Section

Defendant

128(d)

should

contends
be

that

dismissed

Plaintiff’s
because

the 

National Credit Union Administration (“NCUA”) Board has exclusive
authority to regulate loans issued by federal credit unions. ECF
No. 5-1, at p. 8. NCUA’s regulations give the NCAU Board exclusive
authority “to regulate the rates, terms of repayment and other
conditions of Federal credit union loans and lines of credit” and
further provides that the “exercise of the Board's authority
preempts any state law purporting to limit or affect . . . “other
fees”. 12 C.F.R. § 701.21; § 701.21(b)(i)(C). Relying upon this
authority, PenFed claims that the $5.00 pay-to-pay fee is an “other
fee,” and § 46A-2-128(d) is preempted as it applies to the $5.00
fee because 12 C.F.R. § 701.21 “occupies the entire regulatory
field governing loans issued by federal credit unions, including

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specifically, the assessment of ‘other fees’”. ECF No. 5-1, at pp.
8-10.
The doctrine of preemption is rooted in the Constitution's
Supremacy Clause. See U.S. Const. art. VI, cl. 2. “[T]he purpose
of Congress is the ultimate touchstone in every preemption case,”
and there is a “basic assumption that Congress did not intend to
displace state law.” Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187,
1194, 173 L.Ed.2d 51 (2009).
A federal law may preempt state or local law, however, in any
of three ways:
First, Congress may expressly preempt such
laws. Second, in the absence of express
preemptive language, Congress' intent to
preempt state law may be implied when “federal
law so thoroughly occupies a legislative field
as to make reasonable the inference that
Congress left no room for the States to
supplement it.” Finally, preemption will also
be implied if state or local law “actually
conflicts with federal law.” Such a conflict
occurs “when compliance with both federal and
state regulations is a physical impossibility,
or when state law stands as an obstacle to the
accomplishment and execution of the full
purposes and objectives of Congress.”
Meluzio v. Cap. One Bank (USA), N.A., 469 B.R. 250, 253–54 (N.D.W.
Va. 2012) (citing S. Blasting Servs., Inc. v. Wilkes Cnty., 288
F.3d 584, 590 (4th Cir. 2002)). In addition to federal statutes,
properly enacted and promulgated regulations may also preempt
conflicting state or local actions. Anderson, 508 F.3d at 191.
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Federal Courts in West Virginia have rejected Section 128
preemption

arguments

in

relation

to

other

banking

laws.

See

Meluzio, 469 B.R. 250 (finding § 46A-2-128’s “prohibition on unfair
or unconscionable collections practices is not in direct conflict
with any federal law because no law provides for such conduct”);
O'Neal v. Capital One Auto Finance, Inc., No. 3:10–0040, 2011 WL
4549148, at *7 (N.D.W. Va. Sept. 29, 2011) (finding the National
Bank Act does not preempt subsection 128(e)). In fact, courts have
rejected preemption of the WVCCPA by federal banking laws because
“the doctrine would displace state consumer-protection statutes,
which fit squarely within the States' traditional police powers to
protect the well being of their own citizens.” O'Neal, 2011 WL
4549148, at *3.
Preemption of Section 128 would leave plaintiffs without a
remedy from a federal credit union debt collector’s improper fee
collection. Moreover, the NCUA savings clause makes clear that the
intent of the regulation was not to preempt “state laws concerning
. . . unfair credit practices, and debt collection practices.” §
701.21(b)(3). Accordingly, NCUA is not attempting to prevent state
laws, such as the WVCCPA, from prohibiting federal credit unions
- as debt collectors – from engaging in unfair or unconscionable
conduct. Thus, the Court declines to find that NCUA preempts §
46A-2-128(d).
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2. West Virginia Code §46A-2-127
Section

127

prohibits

a

debt

collector

from

using

“any

fraudulent, deceptive or misleading representation or means to
collect or attempt to collect claims or to obtain information
concerning consumers.” W. Va. Code §46A-2-127. As with Section
128, Section 127 provides instances of conduct which are deemed to
violate the section. Id. Relevant here, Plaintiff claims that
Defendant’s conduct violated §46A-2-127(d) and (g). ECF No. 1, at
¶ 39(d)-(f). Under §46A-2-127(d), a debt collector cannot make
“[a]ny

false

representation

or

implication

of

the

character,

extent or amount of a claim against a consumer, or of its status
in

any

legal

collector

proceeding.”

cannot

make

And,

“[a]ny

under

§46A-2-127(g),

representation

that

an

a

debt

existing

obligation of the consumer may be increased by the addition of
attorney's fees, investigation fees, service fees or any other
fees or charges when in fact such fees or charges may not legally
be added to the existing obligation.”
Defendant argues that Plaintiff failed to plausibly allege
any violation under §46A-2-127 because he did not plead any
fraudulent or deceptive representation regarding the $5.00 fee.
ECF No. 5-1, at p. 10. Additionally, Defendant contends that
Plaintiff does not meet the Fed. R. Civ. P. 9(b) particularity
pleading requirement. Id. at pp. 10-11. See Stanley v. Huntington
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Nat. Bank, No. 1:11CV54, 2012 WL 254135, at *7 (N.D.W. Va. Jan.
27, 2012), aff’d, 492 F. App’x 456 (4th Cir. 2012).
In contrast, Plaintiff states he has met his burden because
PenFed is not authorized by statute or agreement to charge the
$5.00 pay-to-pay fee and he alleges in his Complaint that he was
charged $5.00 for making his monthly payment over the telephone.
ECF No. 11, at pp. 17-18; see ECF No. 1, at ¶ 19. Thus, such
conduct, if true, would fall under §46A-2-127(g) because the
addition of the $5.00 fee is a service fee or other fee that “may
not be legally added to the existing obligation.” ECF No. 11, at
pp. 17-18; W. Va. Code §46A-2-127(g).
Here, the Court finds that Plaintiff has pled facts with
sufficient particularity to survive dismissal at the 12(b)(6)
phase. Rule 9(b) requires a plaintiff to plead “the time, place,
and conten[t]s of the false representations, as well as the
identity of the person making the misrepresentation and what he
obtained thereby.” Stanley, 2012 WL 254135, at *7 (quoting Harrison
v.

Westinghouse

Cir.1999)).

The

Savannah
Complaint

River

Co.,

provides

176

F.3d

sufficient

776,

784

(4th

facts

to

infer

PenFed violated W. Va. Code §46A-2-127 of the WVCCPA. Plaintiff
alleges that he was charged a $5.00 fee by PenFed for making
payments on his auto loan, which was not authorized under the

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Promissory Note and that PenFed passed on its collection costs to
consumers. ECF No. 1, at ¶¶ 15, 18-20.
These facts are sufficient to state a claim under W. Va. Code
§46A-2-127. The fact that Section 127 provides examples of conduct
deemed

to

be

fraudulent

or

deceptive

representations

further

bolsters Plaintiff’s claim. Plaintiff specifically pleads that
PenFed engaged in conduct which the WVCCPA deems fraudulent or
deceptive. Thus, Plaintiff’s claim under W. Va. Code §46A-2-127
survives.
3. West Virginia Code § 46A-2-124
Section 124 of the WVCCPA provides that “[n]o debt collector
shall collect or attempt to collect any money alleged to be due
and owing by means of any threat, coercion or attempt to coerce.”
W. Va. Code §46A-2-124. Section 124 further provides examples of
prohibited conduct, including “threat[ening] to take any action
prohibited by this chapter or other law regulating the debt
collector's conduct.” §46A-2-124(f).
In support of dismissing Plaintiff’s claim under W. Va. Code
§46A-2-124, Defendant argues that Plaintiff’s Complaint does not
contain any factual allegations of a threat made by PenFed. ECF
No. 5-1, at pp. 11-12. In support of its position, Defendant cites
to two cases, Hill v. SCA Credit Servs., Inc., No. 5:14-CV-29565,
2015 WL 1808930, (S.D.W. Va. Apr. 21, 2015), aff'd, 622 F. App'x
17

Boczek v. Pentagon Federal Credit Union

1:23-CV-43

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

231 (4th Cir. 2015) and Patrick v. Teays Valley Trustees, LLC, No.
3:12-CV-39, 2012 WL 5993163 (N.D.W. Va. Nov. 30, 2012) in which
Section 124 claims were dismissed.
However,

Plaintiff

contends

that

these

cases

are

distinguishable from the instant matter because the courts found
that the plaintiffs in Hill and Patrick did not properly plead a
violation of a separate section of the WVCCPA to make an actionable
claim under Section 124. ECF No. 11, at pp. 19-20. The Court
agrees. In Hill, the Court found that the plaintiffs did not state
a claim for relief under §46A-2-124 because it could “find nothing
in the four letters which form the basis of the Plaintiffs'
complaint that could constitute a violation of either the general
or specific sections of the WVCCPA.” Hill, 2015 WL 1808930, at *4.
Similarly, in Patrick, the Court concluded that the plaintiff did
not allege that the defendants did any of the conduct included in
the “list of non-exclusive conduct that is deemed to violate the
section.” Patrick v. Teays Valley Trustees, LLC, 2012 WL 5993163,
at *16.
Unlike the plaintiffs in these two cases, Mr. Boczek has
plausibly pled violations of Sections 127 and 128 of the WVCCPA.
Moreover, “the WVCCPA is a detailed statute that describes factual
scenarios

constituting

allegation

that

a

[Defendant]

violation
used
18

of

threats

each
of

provision.
coercion

in

An
its

Boczek v. Pentagon Federal Credit Union

1:23-CV-43

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 5]

attempts

to

collect

a

debt

is

not

converted

from

a

factual

allegation to a legal allegation simply because the statute uses
the same words.” Snuffer v. Great Lakes Educ. Loan Servs., Inc.,
97 F. Supp. 3d 827, 834 (S.D.W. Va. 2015). At the 12(b)(6) phase,
the fact that Plaintiff has alleged that Defendant took action
which was prohibited under the WVCCPA and Plaintiff had to pay the
$5.00 is sufficient to survive dismissal. Thus, Defendant’s Motion
to Dismiss [ECF No. 5] as it relates to the §46A-2-124 is DENIED.
V.
For

the

reasons

stated

CONCLUSION
herein,

Pentagon

Federal

Credit

Union’s Motion to Dismiss [ECF No. 5] is DENIED and Plaintiff has
sufficiently stated a cause of action under the WVCCPA.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to
counsel of record.
DATED: March 26, 2024
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

19