Gray v. Chase Bank USA, N.A.

Filing 35

MEMORANDUM OPINION AND ORDER: granting in part and denying in part Defendant's 21 MOTION for Summary Judgment; ordering that summary judgment be GRANTED with respect to Plaintiff's statutory claims; ordering that Counts Two and Three of the Complaint be DISMISSED; ordering that Defendant's 21 Motion for Summary Judgment be DENIED as to Count Four of Plaintiff's Complaint. Signed by Judge Irene C. Berger on 10/7/2011. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

ANGELA M. GRAY,
Plaintiff,
v.

CIVIL ACTION NO. 5:10-cv-00979

CHASE BANK USA, N.A.,
Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Angela M. Gray, brings this action pursuant to the West Virginia Consumer Credit
and Protection Act (“WVCCPA”), W. Va. Code §§ 46A-1-101, et seq., against Defendant Chase
Bank USA, N.A. (“Chase”) for Defendant’s alleged unlawful and tortuous actions in attempting to
collect a debt from Plaintiff through the use of multiple telephone calls and mail forwarded to her
residence by the United States Postal Service.
The Court has reviewed Defendant Chase Bank USA, N.A.’s Motion for Summary Judgment
(“Def.’s Mot.”)(Document No. 21). Upon consideration of the motion, memoranda in support
thereof and in opposition thereto (Document Nos. 22, 30, 32), attached exhibits, and the entire
record, the Court, for the reasons stated herein, finds that Defendant’s motion should be granted in
part.

I.

On March 20, 2006, and June 19, 2007, Plaintiff opened two personal credit card accounts
with Chase. (See Def.’s Ex. A., Affidavit of Evelyn L. Ford (“Ford Aff.”) (Document No. 21-1), ¶
2; Def.’s Ex. B., Plaintiff’s Responses to Defendant Chase Bank USA, N.A.’s First Set of
Interrogatories and Requests for Production (“Pl.’s Resp.”) (Document No. 21-2), ¶ 13.) At some
point thereafter, Plaintiff’s account with the Defendant was in arrears and Defendant began engaging
in collection efforts through the use of telephone calls and the United States Mail. (Compl.
(Document No. 1-1), ¶ 5.)

On November 20, 2009, Plaintiff retained counsel “to represent

Plaintiff’s interest in connection with consumer indebtedness on which [she] had become in arrears.”
(See Compl. ¶ 6; Pl.’s Resp. ¶ 6.) On December 2, 2009, Plaintiff received a telephone call from the
Defendant during which she provided the name and telephone number of her attorney and indicated
that she did not want to receive any additional telephone calls concerning her account with Chase.
(Pl.’s Resp. ¶ 1; Ford Aff. ¶3;) She directed that all further inquiries be directed to her attorney.
(Pl.’s Resp. ¶ 1.) In the ordinary course of its business, Defendant maintains contemporaneous
notations with respect to “the substance of a conversation or the outcome of a call” and matters
“relating to attempted calls[.]” (Ford Aff., ¶ 6, 7,11.) Notwithstanding having been advised that
Plaintiff was represented by counsel regarding her alleged indebtedness, Defendant continued to
engage in collection efforts against Plaintiff. (Compl. ¶ 8; Pl.’s Resp. ¶ 1; Def.’s Ex. B. at 15-17.)
On June 10, 2009, Plaintiff initiated a civil action in the Circuit Court of Raleigh County,
West Virginia. In her Complaint, Plaintiff alleges that Defendant engaged in repeated violations of
the WVCCPA by: (a) engaging in unreasonable, oppressive or abusive conduct by placing telephone
calls to her residence in violation of Section 46A-2-125; (b) causing [her] phone to ring or engaging
persons, including the Plaintiff, in telephone conversations repeatedly or continuously or at unusual
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times or at time known to be inconvenient, with the intent to annoy, abuse or oppress the Plaintiff
in violation of Section 46A-2-125(d); (c) using unfair or unconscionable means to collect a debt in
violation of Section 46A-2-128(e) by communicating with her after it appeared that she was
represented by an attorney and the attorney’s name and address were known or could be easily
ascertained; and (d) failing to clearly disclose the name of the business entity making a demand for
money upon Plaintiff’s indebtedness in violation of Section 46A-2-127 (a) and (c). (Compl. ¶ 12.)
In Counts Two through Four, Plaintiff asserts claims for common law negligence, intentional
infliction of emotional distress (“I.I.E.D.”) and common law invasion of privacy, respectively. (Id.,
¶¶ 14-26.)1
Defendant removed the case to this Court on August 2, 2010, alleging that this Court had
jurisdiction pursuant to 28 U.S.C. § 1332. (Notice of Removal (Document No. 1), ¶ 4, Gray v. Chase
Bank USA, N.A., Civil Action No. 10-C-447-K.) Plaintiff did not challenge the removal. Pursuant
to this Court’s scheduling order and upon the completion of discovery, Defendant timely filed the
instant dispositive motion.

II.
The well established standard in analyzing a motion for summary judgment is that “[t]he
court shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also
Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

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Plaintiff seeks actual damages for the past and future violations of the WVCCPA, statutory damages in the
maximum amount authorized by WV Code § 46A-5-106, costs of litigation, general damages for past and future
negligence, as well as, general and punitive damages for past and future conduct as alleged in her claims for intentional
infliction of emotional distress and invasion of privacy.

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Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 247 (1986). Rule 56 of the Federal Rules of Civil
Procedure requires that,
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. (c)(1). A “material fact” is a fact that might affect the outcome of a party's case. See
Anderson, 477 U.S. at 248; JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465
(4th Cir. 2001). A “genuine” dispute concerning a “material” fact arises when the evidence is
sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Id.
The moving party bears the burden of showing that there is no genuine issue of material fact,
and that it is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322-23. In considering
a motion for summary judgment, the Court will not “weigh the evidence and determine the truth of
the matter.” Anderson, 477 U.S. at 249. Instead, the Court will draw any permissible inference from
the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). However, the nonmoving party
nonetheless must offer some “concrete evidence from which a reasonable juror could return a verdict
in his 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, an evidentiary showing sufficient to establish that element. Celotex,

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477 U.S. at 322-23. If the nonmoving party fails to make a showing sufficient to establish the
existence of an essential element, “there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the non-moving party's case necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 322-23. If factual issues exist that can only
be resolved by a trier of fact, because they may reasonably be resolved in favor of either party,
summary judgment is inappropriate. Anderson, 477 U.S. at 250.

III.
Defendant moves for summary judgment as to each of Plaintiff’s claims. With respect to the
WVCCPA claims, Defendant argues that Plaintiff has failed to: (1) prove that the WVCCPA applies
to her claims; (2) present evidence, pursuant to Section 125 of the WVCCPA, that Defendant used
profane or obscene language, withheld its identity, caused her to incur an expense for long distance
or telegram fees, or that caused her telephone to ring repeatedly or continuously with the intent to
annoy, abuse, oppress, or threaten her or any person at the called number; and (3) demonstrate that
Chase representatives failed to disclose that they were calling her on behalf of Chase, pursuant to
Section 127. Defendant also argues that Plaintiff’s Section 128(e) claims are preempted by the
National Bank Act. Finally, Defendant contends that it is entitled to summary judgment as to
Plaintiff’s common law claims. Defendant argues that Plaintiff’s negligence claim fails because it
owes no duty to Plaintiff; she failed to present evidence supporting each element of her intentional
infliction of emotional distress claim, and her invasion of privacy claim is defeated because she
provided her telephone number to Chase. (See Defendant’s Memorandum of Law in Support of
Defendant Chase Bank USA, N.A.’s Motion for Summary Judgment (“Def.’s Mem.”) (Document
No. 22.))
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In opposition, Plaintiff withdrew her common law claims of negligence and I.I.E.D, as well
as, all claims asserted pursuant to WV Code 46A-2-127. However, Plaintiff persists in her claims
that Defendant: caused her telephone to ring or engaged in telephone conversations repeatedly or
continuously or at unusual times, in violation of Section 125(d), continued to communicate with her
after it appeared that she was represented by counsel, in violation of Section 128(e), and invaded her
privacy. Plaintiff argues that Defendant placed six hundred twelve (612) calls to her during the
months of August through November 2009. She contends that Defendant’s intent to “annoy, abuse,
oppress, or threaten,” as provided for in Section 125(d), can be inferred from the volume of calls.
Plaintiff also argues that although Defendant ceased its telephone calls to Plaintiff at the point it
appeared she was represented by counsel, it pursued collection of her account by having a law firm,
specializing in collection, call and send her collection letters. Finally, Plaintiff asserts that providing
a creditor a telephone number does not give that creditor the licence to place six hundred twelve
(612) calls to her or to violate state criminal statues proscribing harassing phone calls. (See
Plaintiff’s Response to Defendant’s Motion for Summary Judgment (“Pl.’s Oppn.”) (Document No.
30.))
In its Reply, Defendant maintains that it is entitled to summary judgment as to each of
Plaintiff’s claims. Defendant also asserts that the Court should refuse to consider Plaintiff’s
opposition because it was filed five (5) days outside of the deadline established in the Court’s
Scheduling Order. Defendant argues that Plaintiff has produced, for the first time, copies of
handwritten notes of communications she allegedly received from Chase. Defendant contends that
the Court should not consider these documents and sanction Plaintiff for failing to produce these

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documents in discovery. (See Defendant Chase Bank USA, N.A.’s Reply Brief in Support of Its
Motion for Summary Judgment (“Def.’s Reply”) (Document No. 32.))
IV.
As an initial matter, the Court declines Defendant’s request to strike Plaintiff’s untimely
response to its motion. Although the record is clear that Plaintiff’s opposition was filed untimely,
the Court will consider the submission in an effort to resolve the matter on the merits and in the
interest of justice.

(A) Statutory Claims
“The WVCCPA is a ‘comprehensive consumer protection’ law that incorporates elements
of the Uniform Consumer Credit Code, the National Consumer Act, and older West Virginia
statutes.” Countryman v. NCO Financial System, Inc., Civil Action No. 5:09-cv-0288, 2009 WL
1506720, at *2 (S. D.W. Va. 2009) (Johnston, J.) (quoting Cadillac v. Tuscarora Land Co., 412
S.E.2d 792, 794 (W.Va.1991)). The WVCCPA places “restrictions on the manner in which debt
collectors may attempt to collect debts.” (Id.) To that end, the Court has reviewed the parties’
respective written submissions and finds that in Plaintiff’s four page opposition she has not
substantively addressed several of Defendant’s assertions. Notably among them, Plaintiff does not
challenge or contest Defendant’s contention that she has failed to demonstrate that the WVCCPA
applies to her claim. Defendant asserts that the WVCCPA defines a “consumer” under the act as
“a natural person who incurs debt pursuant to a consumer credit sale or a consumer loan, or debt or
other obligations pursuant to a consumer lease.” (W. Va. Code § 46A-1-102(12)). Defendant argues
that for the debt to qualify in this instance, it must be entered into “primarily for a personal, family,
household or agricultural purpose.” (See W. Va. Code §§46A-1-102(13-15)). These “General
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Definitions” were provided by the WVCCPA “[i]n addition to those definitions appearing in
subsequent articles” in Chapter 46A. (W. Va. Code § 46A-1-102.) In Article 2, Section 122, the
WVCCPA sets forth another definition for the term “consumer” which is “[f]or the purposes of
. . . sections one hundred twenty-five . . . [and] one hundred twenty-eight[.]” (W. Va. Code § 46A2-122. In that Article, the WVCCPA defines a “consumer” as “any natural person obligated or
allegedly obligated to pay any debt[.]” (W. Va. Code § 46A-2-122(a)). Moreover, Section 46A-2122(b) defines a “claim” as “any obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property, insurance or service which is the subject
of the transaction is primarily for personal, family or household purposes, whether or not such
obligation has been reduced to judgment.”
In this case, Plaintiff challenges Chase’s attempt to collect on a claim alleged to be due and
owning in two credit card accounts. The specific statutory provisions at issue in this case, Section
125(d) and 128(e), are both governed by the aforementioned definitions. Therefore, Plaintiff has
a burden to prove that the debt or claim Chase is attempting to collect was for personal, family or
household purposes. Defendant, in its motion, contends that Plaintiff has not asserted any evidence
that her debts were incurred for such purposes. The Court has reviewed the exhibits attached to
Plaintiff’s opposition and those presented by the Defendant and finds no evidence attesting to the
fact that the debt incurred in this instance was for personal, family or household purposes.
Therefore, for the purposes of this motion, the Court finds this matter to be undisputed. Given the
simple manner in which this evidence could have been demonstrated, Plaintiff’s failure to address
Defendant’s argument is intriguing. Summary judgment is appropriate when the nonmoving party
has the burden of proof on an essential element of her case and does not make, after adequate time

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for discovery, an evidentiary showing sufficient to establish that element. Celotex, 477 U.S. at
322-23. If the nonmoving party fails to make a showing sufficient to establish the existence of an
essential element, “there can be ‘no genuine issue as to any material fact,’ since a complete failure
of proof concerning an essential element of the non-moving party’s case necessarily renders all other
facts immaterial.” (Id.) Inasmuch as Plaintiff does not dispute that there is no evidence before the
Court to demonstrate that the WVCCPA applies to her claims, the Court finds that Defendant is
entitled to summary judgment as to Plaintiff’s statutory claims.2

(B)

Invasion of Privacy

The Supreme Court of Appeals of West Virginia has adopted the four types of invasion of
privacy claims as enumerated in the Restatement (Second) of Torts, §§ 652A-652E (1977).
Invasion of privacy claims can arise by: (1) an unreasonable intrusion upon the seclusion of another;
(2) an appropriation of another's name or likeness; (3) unreasonable publicity given to another's
private life; and (4) publicity that unreasonably places another in a false light before the public.
O’Dell v. Stegall 703 S.E.2d 561, 594 (W. Va. 2010) (citing Crump v. Beckley Newspapers, Inc.,
320 S.E.2d 70 (1984)). There appears to be no dispute that Plaintiff’s allegation falls within the
ambit of the first type of claim. An “[u]nreasonable intrusion upon another’s seclusion occurs when
‘[o]ne ... intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another
or [her] private affairs or concerns, . . . if the intrusion would be highly offensive to a reasonable
person.’” Harbolt v. Steel of West Virginia, Inc. 640 F.Supp.2d 803, 817 (S.D. W. Va. 2009)
(quoting Restatement (Second) of Torts § 652B) (emphasis supplied). Plaintiff, in Count Four of

2

As a result, the Court need not make any further findings with respect to the balance of Defendant’s
challenges of Plaintiff’s statutory claims.

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her Complaint, appears to allege that Defendant intruded upon her seclusion by continuously placing
telephone calls to her, causing her to suffer emotional distress, and to become “annoyed,
inconvenienced, harassed, bothered, upset, angered, harangued and otherwise caused indignation
and distress.” (Compl., ¶¶ 23-26.) In its motion, Defendant argues that Plaintiff identified only the
use of one telephone number which was to a cell phone. Defendant contends that Plaintiff’s claims
fail because she has not produced evidence that she was within her home or other private place
where she received the calls. Defendant also argues that it “could not have invaded Plaintiff’s
privacy as Plaintiff voluntarily, knowingly and willingly provided [her] phone number to Chase to
use in relation to the account.” (Def.’s Mem. at 15.) Plaintiff does not dispute that she provided
Defendant with her telephone number, but argues that such provision does not permit a creditor to
place six hundred twelve (612) calls to her in less than four months and to violate state criminal
statues proscribing harassing phone calls. Defendant, in its reply, maintains that it was entitled to
communicate with Plaintiff regarding her debt.
The Court finds that there is no dispute as to any material fact that Defendant did attempt to
make telephone calls to Plaintiff. While Chase disputes the contention that it made six hundred
twelve (612) calls to Plaintiff, by its own admission, it made five hundred ninety four (594) calls
to her between August 6, 2009, and December 2, 2009. (Pl.’s Reply at 6) (explaining with respect
to Account No. 1337, it placed 353 calls to Plaintiff between August 6, 2009, and November 7,
2009, and on Account No. 6231 and 241 attempted calls were made between August 18, 2009, and
December 2, 2009). The Court observes that the large portion of these calls occurred prior to
December 2, 2009, when Plaintiff provided notice to Defendant that she had obtained counsel to
represent her interest on her accounts and presumably asked Defendant to cease making telephone

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calls, to her, regarding the debt. Defendant attempts to minimize its conduct by arguing that in the
five hundred ninety four (594) calls made to Plaintiff, it only spoke to her on four (4) occasions (Id.)
(identifying these dates as August 25, 2009, September 2, 2009, and October 7, 2009, with respect
to Account No. 1337, and on December 2, 2009, for Account No. 6231). Defendant maintains that
its actions were reasonable in that it was attempting to reach Plaintiff to collect on a debt owed by
her. The Court finds that the determination of whether a debt collector’s attempts to reach a person
five hundred ninety four (594) times in less than four (4) months would be highly offensive to a
reasonable person is subject to a jury determination, where, as here, the calls were made prior to
Plaintiff advising Defendant that she was represented by counsel. Moreover, this Court finds that
Defendant’s assertion, that its actions were appropriate, lacks merit inasmuch as it seemingly argues
that a person can waive their right to privacy by the mere placement of contact information on a
credit application. Permitting unfettered communications solely because a debtor provided contact
information with a creditor would conflict with the aims of securing to a person the right to be free
from unreasonable intrusions. The Court finds that there exist genuine issues of material fact as to
whether these calls presented an unreasonable intrusion upon the Plaintiff’s seclusion. Therefore,
Defendant is not entitled to summary judgment as to this claim.

V. CONCLUSION
Based on the foregoing, the Court does hereby ORDER that Defendant Chase Bank USA,
N.A.’s Motion for Summary Judgment (Document No. 21) be GRANTED IN PART AND
DENIED IN PART. Inasmuch as Plaintiff has not presented evidence that the WVCCPA applies
to her statutory claims, the Court ORDERS that summary judgment be GRANTED on these claims.
Further, given the Plaintiff’s voluntary withdrawal of Counts Two and Three of the Complaint, the
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Court ORDERS that those claims be DISMISSED. However, genuine issues of material fact exists
as to whether Defendant unreasonably intruded on the Plaintiff’s seclusion. Therefore, the Court
ORDERS that Defendant’s motion as to Count Four of Plaintiff’s Complaint be DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

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October 7, 2011