Elkins v. Diversified Collection Services, Inc.

Filing 35

MEMORANDUM OPINION AND ORDER: The Court does hereby ORDER that Bank of America, N.A.'s 19 Motion to Dismiss Plaintiff's Amended Complaint and Defendant Diversified Collection Services, Inc.'s 21 Partial Joinder in Defendant Bank o f America, N.A.'s Motion to Dismiss Plaintff's Amended Complaint be GRANTED IN PART AND DENIED IN PART. Specifically, the Court ORDERS that BANA's motion be GRANTED as to Count One (WVCCPA Violations). Inasmuch as Defendant Diversifi ed did not seek relief from Count One, the claim survives against Defendant Diversified. Moreover, the Court ORDERS that both Defendants' motion to dismiss Count Two (Negligence) be GRANTED. Further, the Court ORDERS that BANA's motion to dismiss Count Four (Invasion of Privacy) of the First Amended Complaint be GRANTED. Consequently, Count Two is DISMISSED and Count Four as to BANA only is DISMISSED. Finally, the Court ORDERS that the instant motions be DENIED as to the remaining alleged claims. Signed by Judge Irene C. Berger on 7/15/2013. (cc: attys; any unrepresented party) (msa)

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

STEVIE ELKINS,
Plaintiff,
v.

CIVIL ACTION NO. 5:13-cv-00927

DIVERSIFIED COLLECTION SERVICES, INC.,
and BANK OF AMERICA, N.A.,
Defendants.

MEMORANDUM OPINION AND ORDER

The Court has reviewed Bank of America, N.A.’s Motion to Dismiss Plaintiff’s Amended
Complaint (“BANA’s Mot.”) (Document 19) and its supporting memorandum (Document 20).
The Court has also reviewed Defendant Diversified Collection Services, Inc.’s Partial Joinder in
Defendant Bank of America, N.A.’s Motion to Dismiss Plaintiff’s Amended Complaint
(Document 21) with respect to Counts II through IV as well as Plaintiff’s Memorandum of Law
in Opposition to Defendant’s Motion to Dismiss (Document 23). After careful consideration of
the First Amended Complaint and the parties’ written submissions, the Court grants in part and
denies in part Defendants’ motion to dismiss, for the reasons set forth below.

I.
On October 22, 2012, Plaintiff, Stevie Elkins, filed his Complaint against Defendants
Bank of America, N.A. (“BANA”) and Diversified Collection Services, Inc. (“Diversified”), in
the Circuit Court of Raleigh County, West Virginia, for violations of the West Virginia
Consumer Credit and Protection Act (“WVCCPA”). (Def.’s Notice of Removal, Ex. A.

(Document 1-1)).

In his First Amended Complaint, Plaintiff alleges that he and his wife

purchased a home in 2008 through a purchase money note of $75,480. Two years later, he
sought to refinance the loan. (First Am. Compl. ¶¶ 5-6.) Plaintiff alleges that a BANA agent
misrepresented that it would refinance his loan and stay foreclosure. However, the foreclosure
process continued and his home was sold in July 2010. (First Am. Compl. ¶¶ 6-7.) Plaintiff
alleges that Bank of America was the successful bidder at the foreclosure, paying $83,237, but it
assigned its rights thereto to the Government National Mortgage Associates. (First Am. Compl. ¶
7.) According to Plaintiff, as a result of the foreclosure sale, no balance remains on the secured
note. (Id.) Thereafter, BANA “falsely reported” on an Internal Revenue Service Form (Form
1099) that he had debt forgiveness or cancellation on the purchase money note. Plaintiff alleges
that due to the “negligent or intentional” actions of BANA, his tax refunds for 2011 and 2012
were “confiscated by the Department of Treasury[.]” (First Am. Compl. ¶ 8.)
On April 10, 2012, Plaintiff received a letter from Defendant Diversified informing him
that it was collecting a debt for the Department of Defense and United States Department of
Treasury in the amount of $54,232.60. (First Am. Compl. ¶ 9.) Subsequently, Diversified began
contacting Plaintiff by telephone. (First Am. Compl. ¶ 11.)

Plaintiff alleges that in its

communications, Diversified failed to identify the nature of the original obligation and
represented that it was an agent for the United States government. (First Am. Compl. ¶¶ 9, 11.)
Plaintiff further alleges that Diversified failed to provide any information or documentation to
explain its demand for $54,232.60, despite the written and oral requests from Plaintiff and his
counsel. (First Am. Compl. ¶ 11.) Instead, Defendant Diversified continued to communicate
with Plaintiff. Plaintiff also alleges that Diversified’s communications with Plaintiff “were
either as collection agent for Defendant [BANA] or its assignee, or as a direct result of false

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reporting by [BANA] to the United States government.” (First Am. Compl. ¶ 10.)
As a result, Plaintiff alleges in Count One that Defendant Diversified acted at all times as
an agent for BANA, or some other entity, on the false information provided by BANA. Plaintiff
alleges that Defendants engaged in repeated violations of the WVCCPA by: engaging in
unreasonable or abusive conduct by placing telephone calls to Plaintiff, in an attempt to collect
the debt, in violation of WV Code § 46A-2-125; causing his phone to ring or engaging telephone
conversations repeatedly or continuously or at unusual times or at times known to be
inconvenient with the intent to annoy, abuse and oppress him, in violation of WV Code § 46A-2125(d); communicating with him after it appeared he was represented by legal counsel, in
violation of WV Code § 46A-2-128(e); failing to clearly disclose the name of the business entity
demanding payment, in violation of WV Code § 46A-2-127(a) and (c); falsely representing the
character, extent and amount of the debt, in violation of WV Code § 46A-2-127(d); falsely
representing that Defendant Diversified is an agent or instrument of or could vouch for the
United States government, in violation of WV Code § 46A-2-127(e), and inaccurately
publicizing information about the alleged debt to third parties, in violation of WV Code § 46A-2126. (First Am. Compl. ¶ 13).
To round out the balance of his First Amended Complaint, Plaintiff alleges that
Defendants negligently failed to train, supervise, monitor or otherwise control its employees to
insure that its employees did not violate the WVCCPA as alleged in Count I, and that as a result,
his tax refund was confiscated, he lost his house, and was annoyed, inconvenienced, harassed,
bothered, upset, angered, harangued and otherwise distressed. (First Am. Compl. ¶¶16-17)
(count two - negligence). Plaintiff further alleges that he suffered emotional distress as a result
of Defendants atrocious, intolerable and extreme conduct, which included Defendants calling

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him after it was known he was represented by counsel, adopting policies and procedures without
regard to West Virginia law and which were designed to have the effect of inflicting emotional
distress to coerce a consumer to pay the Defendant, and as a result of the refusal to explain the
basis and nature of the debt. (First Am. Compl. ¶ 19) (count three – intentional infliction of
emotional distress). Finally, Plaintiff asserts an invasion of privacy claim, wherein he alleges
that the acts of the Defendants, in filing a false report to the IRS, Department of Defense and
other entities, resulted in arbitrary changes to his tax return and the “confiscation of his tax
refund.” (First Am. Compl. ¶ 23.) With respect to this claim, Plaintiff further asserts that he had
an expectation of privacy to be free from harassing and annoying telephone calls and from the
false report of information to United States government agencies. (Id.) Plaintiff seeks actual
damages and civil penalties for each violation, statutory damages as adjusted for inflation
pursuant to W. Va. Code § 46A-5-106, general and punitive damages and the cost of litigation,
including attorney fees, court costs and fees. (First Am. Compl. at 8).
On January 16, 2013, Defendants removed this action to this Court on the basis of
diversity jurisdiction, pursuant to 28 U.S.C. § 1332 (Notice of Removal (Document 1)). Plaintiff
did not challenge the removal. In the instant motion, BANA moves for the dismissal of each
asserted claim and any further relief that the Court deems appropriate.

(Document 19).

Diversified joins the motion to the extent that it contends that Plaintiff has failed to state a claim
for the common law state claims (counts two through four). (Document 21). Plaintiff contests
each challenge and asserts that his pleading sufficiently places Defendants on notice of his
claims and includes adequately pled allegations to assert a claim. (Memorandum of Law in
Opposition to Defendant’s Motion to Dismiss (“Pl.’s Opp’n”) (Document 23)).

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II.
Defendants move to dismiss Plaintiff’s Complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Such a
motion tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “[T]he legal
sufficiency of a complaint is measured by whether it meets the standard stated in Rule 8 [of the
Federal Rules of Civil Procedure] (providing general rules of pleading) . . . and Rule 12(b)(6)
(requiring that a complaint state a claim upon which relief can be granted.)” (Id.) Rule 8(a)(2)
requires a pleading contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Additionally, allegations “must be simple, concise, and
direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp
v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do[.]” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancements.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557). The Court must “accept as true all of the factual allegations
contained in the complaint” Erickson v. Pardus, 551 U.S. 89, 93 (2007), and “draw[ ] all
reasonable factual inferences from those facts in the plaintiff’s favor.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions
“are not entitled to the assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S.
at 679. Furthermore, “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice . . . [because courts] ‘are not bound to accept as true a
legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555). To survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). Put differently, this “plausibility standard requires a
plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’”
Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the
complaint, “articulate facts, when accepted as true, … ‘show’ that the plaintiff has stated a claim
entitling him to relief.”

Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557).

“Determining whether a complaint states [on its face] a plausible claim for relief [which can
survive a motion to dismiss] will . . . be a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

III.
Defendants challenge the sufficiency of Plaintiff’s Complaint by asserting that he has
failed to plead sufficient facts or information to support his claims. The Court has reviewed the
substance of Plaintiff’s claims and finds that even assuming Plaintiff’s allegations to be true, he
has failed to state a claim upon which relief can be granted with respect to several of his claims.
The Court will review each claim separately.

A. Count One – Violations of the WVCCPA
BANA asserts that Plaintiff has failed to allege that it engaged directly or indirectly in
any debt collection activity involving the $54,232.60 indebtedness or that it called or sent
correspondence to Plaintiff to collect on the debt.

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(Memorandum of Law in Support of

Defendant Bank of America, N.A.’s Motion to Dismiss Amended Complaint (“BANA’s Mem.”)
(Document 20) at 5-6). BANA further contends that assuming Plaintiff’s allegation is true – that
it filed a false Form 1099 declaring forgiveness of debt as income when no debt remained on the
loan – this allegation does not subject it to the prohibitive conduct of the WVCCPA.
The Court has considered Plaintiff’s allegation that BANA is a debt collector that
engaged directly or indirectly in debt collection, as those terms are defined under the WVCCPA
(First Am. Compl. ¶4.)1 The Court agrees with BANA that Plaintiff has failed to assert in Count
One any action detailing BANA’s efforts to collect on the alleged debt. Inasmuch as Plaintiff
has not alleged that BANA engaged, directly or indirectly, in any debt collection activity, the
Court finds this allegation to be a mere legal conclusion which this Court is entitled to reject.
“[B]are legal conclusions “are not entitled to the assumption of truth” and are insufficient to state
a claim. Iqbal, 556 U.S. at 679.
Indeed, Plaintiff has alleged that BANA, as its loan servicer, was its initial contact to
refinance his home mortgage, that the loan was foreclosed upon and that BANA purchased the
loan. Plaintiff also alleges that BANA assigned its rights to the Government National Mortgage
Associates. (First Am. Compl. ¶¶ 6-7.) At no point after the foreclosure does Plaintiff allege
1

The WVCCPA provides specific definitions for the terms “debt collector” and “debt collection” as follows:
“Claim” means 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.
“Debt collection” means any action, 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.
“Debt collector” means any person or organization engaging directly or indirectly in debt
collection. The term includes any person or organization who sells or offers to sell forms
which are, or are represented to be, a collection system, device or scheme, and are
intended or calculated to be used to collect claims.
W. Va. Code § 46A-2-122(b) - (d).

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that BANA telephoned him or communicated with him about the alleged debt or to collect on the
alleged debt.

Notwithstanding Plaintiff’s allegation that Defendant Diversified’s collection

activities were performed as a “collection agent” for BANA, Plaintiff explicitly alleges that
Defendant Diversified communicated with him after the foreclosure and advised that it was
collecting upon a debt for the Department of Defense and the United States Department of
Treasury, not BANA. (First. Am. Compl. ¶ 9.) Plaintiff then pleads, in a legally inconsistent
fashion, that Defendant Diversified’s collection activities were performed for BANA as its
“assignee.” (First. Am. Compl. ¶ 10.) Plaintiff’s pleading is void of any factual allegations to
support any allegation that BANA facilitated debt collection activity through Diversified, as an
“agent” or “assignee.” Consequently, the Court finds that Plaintiff has not alleged any facts that
BANA is a debt collector as that term is defined under the statute.
A cursory review of the pleading reveals that the thrust of Plaintiff’s discontent with
BANA is the allegation that BANA falsely reported that Plaintiff received income pursuant to a
debt forgiveness transaction.

Assuming as true that BANA falsely filed a Form 1099,

“negligently or intentionally” (First Am. Compl. ¶ 8), such an act cannot be said to be a “debt
collection” activity, as that term is defined by the WVCCPA, because it is not an “action,
conduct or practice” whereby the debt collector is “solicit[ing]” a “claim” for collection” or
collecting on the claim owed or due or allegedly owed or due. BANA’s alleged false reporting
was not to collect a claim—or a consumer debt—under the statute, but a report of income
derived from a foreclosure transaction. Consequently, the Court cannot find that BANA’s
alleged false reporting is sufficient to establish a claim under the WVCCPA.
Based on the foregoing, the Court finds that BANA’s motion to dismiss Count One
should be granted.

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B. Count Two - Negligence
With respect to Plaintiff’s negligent training and supervision claim, both Diversified and
BANA assert that “Plaintiff does not - nor could he - allege any duty owed by Defendant to
Plaintiff. Even if Plaintiff could allege such a duty, he failed to allege any breach of duty, or any
damages resulting from such a breach.” (BANA’s Mem. at 7.) Additionally, Defendants assert
that Plaintiff’s negligence claim must arise out of a special duty separate from the duties the
WVCCPA imposes. (Id. at 7-8.) In response, Plaintiff asserts that Defendants breached the duty
to abide by the WVCCPA by proceeding to collect on a debt which has been satisfied and to
instruct their employees on the law to avoid unlawful collection practices. (Pl.’s Opp’n at 5-6.)
Plaintiff also argues that BANA negligently filed a false Form 1099 which resulted in the
unwarranted taxation of Plaintiff.
To maintain a negligence action, a plaintiff must allege “that the defendant has been
guilty of some act or omission in violation of a duty owed to the plaintiff.” Aikens v. Debow,
541 S.E.2d 576, 580 (W.Va. 2000). Furthermore, a plaintiff must allege that the defendant’s
negligence was the proximate cause of the plaintiff’s injury. (Id. at 491.) Notwithstanding his
arguments in his opposition to the instant motion, in his complaint, Plaintiff does not allege that
Defendants owed him a duty. Plaintiff merely alleges “Defendant negligently failed to train[,]
supervise, monitor or otherwise control its employees to ensure that its employees did not violate
the WVCCPA as alleged in Count I.” (First Am. Compl. ¶ 16). Indeed, Plaintiff asserts no facts
which suggest Defendants failed to properly train, supervise, monitor, or otherwise control its
employees. Taking Plaintiff’s limited allegations as true, a showing of negligence simply cannot
be made.
Furthermore, Plaintiff does not address Defendants’ argument that he failed to allege that

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a special duty separate from the WVCCPA supports his negligence claim. The failure to address
Defendants’ argument in this regard is a concession of the same. Thus, this Court finds for these
reasons that this claim should be dismissed for Plaintiff’s failure to state a claim upon which
relief can be granted.

C. Count Three - Intentional Infliction of Emotional Distress (IIED)
Defendants move for dismissal of this claim by contending that Plaintiff’s IIED claim is
fatally flawed because Plaintiff has not made sufficient factual allegations of conduct which is
atrocious or outrageous or that his distress was sufficiently severe. (BANA’s Mem. at 9).
Defendants contend that Plaintiff failed to assert facts to demonstrate what conduct fits the broad
description of outrageous and intolerable conduct and when the conduct occurred. (Id.)
In West Virginia, the tort of intentional infliction of emotional distress or the tort of
outrage was first defined in Harless v. First Nat’l Bank in Fairmont, 289 S.E.2d 692 (W. Va.
1982). In that case, the West Virginia Supreme Court of Appeals stated that “one who by
extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress, and if bodily harm to the other results
from it, for such bodily harm.” Harless, 289 S.E.2d at703 (quoting the Restatement of Torts
(Second), § 46). To prevail on this claim, a plaintiff is required to prove that:
(1) the defendant’s conduct was atrocious, intolerable, and so
extreme and outrageous as to exceed the bounds of decency; (2)
the defendant acted with the intent to inflict emotional distress, or
acted recklessly when it was certain or substantially certain
emotional distress would result from its conduct; (3) the actions of
the defendant caused the plaintiff to suffer emotional distress; and
(4) the emotional distress suffered by the plaintiff was so severe
that no reasonable person could be expected to endure it.
Travis v. Alcon Laboratories, Inc., 504 S.E.2d.419, 425 (W.Va. 1998).

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Accepting as true all factual allegations contained in Plaintiff’s complaint, the Court finds
that he has successfully alleged the necessary facts to state a claim upon which relief can be
granted with respect to this claim. In this Count, Plaintiff incorporates the allegations in his
complaint and specifically alleges various instances of Defendants’ conduct he contends were
atrocious, intolerable and extreme so as to exceed the bounds of decency.

He includes

allegations that Defendants placed telephone calls to him after having knowledge that he was
represented by counsel; that Defendants adopted policies and procedures without regard to the
law; that their policies and procedures are designed to inflict emotional distress; that BANA filed
a false and fraudulent Form 10992; that Diversified used the name and projected force of the
United States government to collect a false debt; that Diversified’s agents refused to explain the
basis or nature of the debt and that Defendants’ actions resulted in his suffering emotional
distress. (First Am. Compl. ¶¶ 19-20.) He also alleges he has been annoyed, inconvenienced and
harassed, bothered, upset, angered, harangued and otherwise caused indignation and distress.
(First Am. Compl. ¶ 21.)3 Plaintiff has detailed the conduct of the Defendant he believes was
“extreme and outrageous” and done with the intent to harass. He has also included allegations
about how this Defendant’s conduct affected him. Thus, this Court finds the IIEP claim should
not be dismissed.
D. Count Four – Invasion of Privacy
Finally, in West Virginia, there are at least four grounds upon which to base a claim for
an invasion of privacy. Specifically, invasion of privacy claims may be asserted by “(1) an
2

(See First Am. Compl. ¶ 8) (Plaintiff referring to BANA’s report of Form 1099 as a “negligent or intentional”

act.
3

Plaintiff also alleged that various acts of the Defendants, in the alleged violation of the WVCCPA, constituted
criminal conduct. (First Am. Compl. ¶ 19(c)-(f).) Defendants contest these allegations by asserting that a private
cause of action does not lie under the referenced criminal statute, W. Va. Code § 61-8-16. Plaintiff does not
challenge this assertion in his opposition. (Pl.’s Opp’n at 6.) Consequently, no further finding is warranted relative
to these allegations.

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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.” Syl. pt. 8, Crump v. Beckley
Newspapers, Inc., 320 S.E.2d 70 (W.Va. 1984). Defendants argue that “the only possible
privacy right impacted” in this case is the first ground listed above. 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 [his 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) (Chambers, J.) (quoting Restatement (Second) of
Torts § 652B). According to Defendants, Plaintiff fails to sufficiently plead such a claim
because he has only asserted the bare elements of the claim. Additionally, Defendants discount
Plaintiff’s allegations that his privacy was invaded by the “harassing and annoying telephone
calls” to his home (First Am. Compl. ¶ 23) and the “filing [of] a false report to the IRS,
Department of Defense and other entities” (id.) by asserting that these allegations “contradict the
types of conduct prohibited by the common law cause of action.”
However, this Court disagrees in that Plaintiff has accomplished the minimum standard
of pleading, in regards to Defendant Diversified. Plaintiff has alleged that telephone calls were
made to his home about a debt which he contends has been satisfied or which is the result of a
false reporting. Despite his failure of averring the number and times of the telephone calls or
communications in his pleading, he has alleged enough details in the pleading that any call on a
satisfied debt “invaded or intruded” upon the solitude of his private affairs. Therefore, upon
consideration of the entirety of the First Amended Complaint, this Court finds an invasion of
privacy claim plausible against Defendant Diversified.

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Conversely, the Court finds that Plaintiff’s allegations against BANA are inadequate.
Plaintiff has alleged that his expectation of privacy was infringed upon based on “harassing and
annoying” telephone calls. However, as stated above, the pleading is devoid of any allegation
that BANA communicated with Plaintiff after his foreclosure to collect upon a debt through a
telephone call or otherwise. In his opposition to BANA’s motion, Plaintiff asserts an argument
that BANA “coerced [him] into executing a Release after the foreclosure on his property at the
same time [BANA], through its agents, represented that they were negotiating a refinance with
him.” (Pl.’s Opp’n at 6.) Plaintiff then argues that Defendant Diversified, “the agent of Bank of
America’s assignee, . . . communicated in writing and by telephone calls to Plaintiff in his
home.”

As this Court found above, Plaintiff has not asserted any factual allegations that

Defendant Diversified was acting on behalf of BANA, but rather the Department of Treasury and
the Department of Defense. Finally, Plaintiff asserts that the filing of the “false 1099” resulted in
the “confiscation of” his 2011 and 2012 tax returns and that the same was an invasion of privacy.
However, Plaintiff has not sufficiently pled that an alleged false Form 1099 invaded his “right to
privacy” as an invasion of privacy claim is established by law. (See Syl. pt. 8, Crump v. Beckley
Newspapers, Inc., 320 S.E.2d 70 (W.Va. 1984)). Therefore, the Court finds that the invasion of
privacy claim against BANA should be dismissed.

IV.
Wherefore, as discussed herein, the Court does hereby ORDER that Bank of America,
N.A.’s Motion to Dismiss Plaintiff’s Amended Complaint (Document 19) and Defendant
Diversified Collection Services, Inc.’s Partial Joinder in Defendant Bank of America, N.A.’s
Motion to Dismiss Plaintiff’s Amended Complaint (Document 21) be GRANTED IN PART

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AND DENIED IN PART.

Specifically, the Court ORDERS that BANA’s motion be

GRANTED as to Count One (WVCCPA violations). Inasmuch as Defendant Diversified did
not seek relief from Count One, the claim survives against Defendant Diversified. Moreover, the
Court ORDERS that both Defendants’ motion to dismiss Count Two (Negligence) be
GRANTED.

Further, the Court ORDERS that BANA’s motion to dismiss Count Four

(Invasion of Privacy) of the First Amended Complaint be GRANTED. Consequently, Count
Two is DISMISSED and Count Four as to BANA only is DISMISSED.

Finally, the Court

ORDERS that the instant motions be DENIED as to the remaining alleged claims.
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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July 15, 2013