Bailey v. Branch Banking & Trust Company
MEMORANDUM OPINION AND ORDER denying Defendant's 87 MOTION for Summary Judgment as to the Counterclaim; denying 89 Defendant's MOTION for Summary Judgment as to the Complaint's Common Law Claims; the Court also denies defendant's 94 and 96 requests for hearings on both motions. Signed by Judge Robert C. Chambers on 6/23/2011. (cc: attys; any unrepresented party) (dcm)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 3:10-0969
BRANCH BANKING & TRUST COMPANY,
MEMORANDUM OPINION AND ORDER
Pending before the Court are two motions for summary judgment by Defendant
Branch Banking & Trust Company. The first motion is a Motion for Summary Judgment as to its
Counterclaim. [Doc. No. 87]. The second motion is a Motion for Summary Judgment as to the
Complaint’s Common Law Claims. [Doc. No. 89]. For the following reasons, the Court DENIES
both motions. In addition, the Court DENIES Defendant’s requests for hearings on both motions.
[Doc. Nos. 94 and 96].
Plaintiff Jeremy Bailey was issued a credit card by Defendant, which he used to make
various purchases. Plaintiff asserts he began struggling financially when his wife lost his job, and
he could no longer afford to pay his bills on time. He also states Defendant increased his minimum
monthly payment on the credit card from $151 to $900 per month, which was more than he could
pay. In the Spring of 2009, Plaintiff stopped making payments on his credit card balance.
Defendant asserts the amount due on the card is $5,676.79, plus contractual interest at a rate of
After he stopped paying on the card, Plaintiff states he started receiving numerous
collection calls on his personal cell phone and at work. He claims the calls were so frequent they
made his life intolerable. In addition, he contends the calls were abusive and oppressive to the point
they caused him increased stress, embarrassment, and inconvenience and interfered with his work
and marriage. Plaintiff further states he told Defendant to stop calling him and to communicate only
with his attorney. Nevertheless, Plaintiff asserts Defendant continued to call him on his cell phone
and at work.
As a result, Plaintiff filed this action against BB&T for violations of West Virginia’s
Consumer Credit Protection Act (WVCCPA), West Virginia Code § 46A-1-101 et seq.,1 and
Plaintiff specifically makes claims under West Virginia Code §§ 46A-2-125(d), 46A-2-126,
and 46A-1-128(e). Section 46A-2-125(d) provides:
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 or another. Without limiting the
general application of the foregoing, the following
conduct is deemed to violate this section:
(d) Causing a 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
intent to annoy, abuse, oppress or threaten any person at the
W. Va. Code § 46A-2-125(d). Section 46A-2-126 states, in part: “No debt collector shall
unreasonably publicize information relating to any alleged indebtedness or consumer.” W. Va. Code
§ 46A-2-126. Finally, § 46A-1-128(e), provides:
negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, and
for invasion of privacy.2 Defendant answered the Complaint and filed a counterclaim for breach of
contract for failing to make regular and required payments on his credit card. In its motions,
Defendant seeks summary judgment in its favor on the credit card debt and the common law claims.
STANDARD OF REVIEW
To obtain summary judgment, the moving party must show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the
evidence and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in the
No debt collector shall use unfair or unconscionable
means to collect or attempt to collect any claim.
Without limiting the general application of the
foregoing, the following conduct is deemed to violate
(e) Any communication with a consumer whenever it
appears that the consumer is represented by an
attorney and the attorney's name and address are
known, or could be easily ascertained, unless the
attorney fails to answer correspondence, return phone
calls or discuss the obligation in question or unless
the attorney consents to direct communication.
W. Va. Code § 46A-1-128(e).
Plaintiff also stated claims for violating West Virginia Code § 61-8-16, but those claims
were dismissed by stipulation.
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).
Although the Court will view all underlying facts and inferences in the light most
favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477
U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof
on an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Defendant seeks summary judgment on its counterclaim to be reimbursed the
principal and interest due on Plaintiff’s credit card. However, the Court finds that summary
judgment on this issue is premature. As indicated by Plaintiff, if Defendant is liable under the
WVCCPA, the debt in question may be completely voided. See W. Va. Code § 46A-5-101(2)
(providing, in part, “[i]f a creditor has violated the provisions of this chapter respecting authority
to make regulated consumer loans, the loan is void and the consumer is not obligated to pay either
the principal or the loan finance charge”); W. Va. Code § 46A-5-105 (stating “[i]f a creditor has
willfully violated the provisions of this chapter applying to illegal, fraudulent or unconscionable
conduct or any prohibited debt collection practice, in addition to the remedy provided in section one
hundred one of this article, the court may cancel the debt when the debt is not secured by a security
interest”). As Plaintiff’s WVCCPA claims remain pending for trial, the jury’s decision on these
claims will directly impact whether he is obligated to pay the principal and interest on his credit
card. If the jury determines that Defendant violated the WVCCPA, Plaintiff may owe nothing on
the debt. Therefore, the Court DENIES Defendant’s motion without prejudice.
Common Law Claims
Defendant’s second motion is for summary judgment on Plaintiff’s common law
claims for negligence, intentional infliction of emotional distress, negligent infliction of emotional
distress, and invasion of privacy. Defendant argues Plaintiff cannot proceed on his common law
claims because he has made no direct and separate allegations from his claims under the WVCCPA.
In response, Plaintiff argues he is not prohibited from bringing both types of claims. The parties
agree the issue is controlled by Casillas v. Tuscarora Land Co., 412 S.E.2d 792 (W. Va. 1991).
Therefore, the Court looks to that case for guidance.
In Casillas, the plaintiffs filed a lawsuit against the seller of certain real property and
the bank which financed the sale for breach of duty, common law negligence, concealment, and
fraud for damage caused by a flood. 412 S.E.2d at 793. In its amended answer, the bank raised an
affirmative defense that all the plaintiffs’ claims were barred under the WVCCPA. Id. Applying the
provisions of the WVCCPA, the trial court determined a lender could not be liable for a claim
arising from or growing out of damage to property. Id. at 794. As the plaintiffs’ negligence and
fraud claims against the bank grew out of property damage, the trial court directed a verdict in the
bank’s favor. Id. The plaintiffs appealed and argued the trial court improperly relied upon the
WVCCPA because they brought common law claims and did not plead claims under the Act. Id.
Thus, the West Virginia Supreme Court was asked to decide whether the WVCCPA “bars a party’s
right to bring a common law claim in negligence and fraud.” Id.
In deciding this issue, the court first looked to the purpose of the WVCCPA. In doing
so, the court noted the purpose of the Act was to “extend protection to the consumers and persons
who obtain credit in this State[.]” Id. “The legislative history of the Act makes it clear that the
purpose of creating the Act was because so many consumers failed to accomplish any results at
common law against creditors.” Id. at 795. The court specifically held that the Act “does not
preclude claims brought at common law against assignees, holder, or lenders.” Id. at 795 (quoting,
thereafter, West Virginia Code §§ 46A-2-101(3) and 46A-2-102(3), which provide: “Nothing
contained in this section shall be construed as affecting any buyer's or lessee's right of action, claim
or defense which is otherwise provided for in this Code or at common law.” W. Va. Code §§ 46A-2101(3) and 46A-2-102(3)). Moreover, the court found “[n]othing within the Act’s limitation of
liability provisions provides immunity at common law for the misconduct of a lender, assignee, or
holder which results in damages.” Id. Therefore, the court held “that a common law action of fraud
may be maintained against a lender, assignee, or holder where direct allegations of fraud or
misrepresentation exist separate from the Act.” Id.
Defendant seizes upon the words “direct” and “separate” and argues Plaintiff has
failed to properly assert both common law claims and claims under the WVCCPA in his Complaint.
Specifically, Defendant insists Plaintiff must have an independent factual basis to maintain his
common law claims “direct” and “separate” from his WVCCPA claims, which Defendant asserts
he has not done. Upon review, the Court disagrees with Defendant’s interpretation of Casillas.
In Casillas, the court made it abundantly clear that a plaintiff can maintain both
claims both under the WVCCPA and common law. The words “direct” and “separate” do not mean
that a plaintiff must have a completely separate factual basis to support those claims, it merely
means the plaintiff must make “direct” and “separate” claims in the complaint, i.e., a claim under
the WVCCPA and a “direct” and “separate” claim under common law. It would be contrary to both
the legislative intent of the WVCCPA and the whole crux of Casillas if the Court were to preclude
consumers from bringing actions for violations of the WVCCPA and common law merely because
the claims are based upon similar facts. Indeed, this Court appreciates that the factual predicate for
both WVCCPA and common law claims involving debt collection practices will likely be
substantially similar in most cases. Neither the WVCCPA nor Casillas makes a consumer choose
between the two options. A consumer clearly can choose to pursue both avenues provided
“separate” claims are set forth in a complaint. As Plaintiff in this case properly set forth claims
under the WVCCPA in Count One and direct and separate claims under common law in Counts Two
through Five, the Court DENIES Defendant’s motion for summary judgment on his common law
Accordingly, for the foregoing reasons, the Court DENIES without prejudice
Defendant’s Motion for Summary Judgment as to the Counterclaim [doc. no. 87] and DENIES
Defendant’s Motion for Summary Judgment as to the Complaint’s Common Law Claims [doc. no.
89]. The Court further DENIES Defendant’s requests for hearings on both motions [doc. nos. 94
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to
counsel of record and any unrepresented parties.
June 23, 2011
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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