Barr v. Ncb Mgmt. Serv. Inc.

• Decision Date: 14 June 2011
• Docket Number: No. 35709.,35709.
• Citation: 227 W.Va. 507,711 S.E.2d 577
• Court: West Virginia Supreme Court
• Parties: Linda BARR, Plaintiffv.NCB MANAGEMENT SERVICES, INC., and HSBC Bank Nevada, N.A., Defendants.

227 W.Va. 507

711 S.E.2d 577

Linda BARR, Plaintiff

v.NCB MANAGEMENT SERVICES, INC., and HSBC Bank Nevada, N.A., Defendants.

No. 35709.

Supreme Court of Appeals of West Virginia.

Submitted April 12, 2011.Decided June 14, 2011.

Syllabus by the Court

1. “This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.” Syllabus point 1, Bower v. Westinghouse Electric Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999).

2. “When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51–1A–1 et seq. and W. Va.Code, 58–5–2 [ (1998) (Repl.Vol.2005) ], the statute relating to certified questions from a circuit court of this State to this Court.” Syllabus point 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).

3. “It is a fundamental rule of construction that, in accordance with the maxim noscitur a sociis, the meaning of a word or phrase may be ascertained by reference to the meaning of other words or phrases with which it is associated. Language, although apparently general, may be limited in its operation or effect where it may be gathered from the intent and purpose of the statute that it was designed to apply only to certain persons or things, or was to operate only under certain conditions.” Syllabus point 4, Wolfe v. Forbes, 159 W.Va. 34, 217 S.E.2d 899 (1975).

4. “A statute that is ambiguous must be construed before it can be applied.” Syllabus point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

5. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

6. “ ‘It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.’ Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).” Syllabus point 2, Conseco Finance Servicing Corp. v. Myers, 211 W.Va. 631, 567 S.E.2d 641 (2002).

7. W. Va.Code § 46A–5–101(1) (1996) (Repl.Vol.2006) allows a consumer to assert a private cause of action against a professional debt collector who has engaged in debt collection practices that are prohibited by the West Virginia Consumer Credit and Protection Act, W. Va.Code § 46A–1–101 et seq.

Aaron C. Amore, Kratovil & Amore, PLLC, Charles Town, WV, Anthony J. Majestro, Powell Majestro, PLLC, Charleston, WV, John W. Barrett, Jonathan R. Marshall, Bailey & Glasser LLP, Charleston, WV, for Plaintiff.Darrell V. McGraw, Jr., Attorney General, Jill L. Miles, Deputy Attorney General, Charleston, WV, for Amicus Curiae, The West Virginia Attorney General.Bren J. Pomponio, Charleston, WV, for Amicus Curiae, Mountain State Justice, Inc. Bryan C. Shartle, Pro Hac Vice, Sessions, Fishman, Nathan & Israel, L.L.C., Metairie, LA, Macel E. Rhodes, Zimmer Kunz, PLLC, Morgantown, WV, Sharon Z. Hall, Zimmer Kunz, PLLC, Pittsburgh, PA, Patrick J. McDermott, McDermott & Bonenberger, PLLC, Wheeling, WV, for Defendant, NCB Management Services, Inc.Brett J. Preston, C. Benjamin Salango, Preston & Salango, P.L.L.C., L. Lee Javins, II, Bucci, Bailey & Javins, L.C., Charleston, WV, for Amici Curiae, AARP, National Association of Consumer Advocates, and National Consumer Law Center.

DAVIS, Justice:

The United States District Court for the Northern District of West Virginia presents this Court with a certified question asking whether the West Virginia Consumer Credit and Protection Act (hereinafter referred to as either “the WVCCPA” or “the Act”), W. Va.Code § 46A–1–101 et seq. , provides a consumer with a private cause of action against a professional debt collector who has violated the Act. We find that the Act does provide a consumer with such a cause of action. Accordingly, we answer the certified question in the affirmative.

I.FACTUAL AND PROCEDURAL HISTORY

According to the briefs presented to this Court, on June 6, 2008, Linda Barr, the plaintiff (hereinafter referred to as “Ms. Barr”), purchased a 2007 Suzuki motorcycle for nine thousand dollars. She financed the purchase through a loan she obtained from HSBC Bank Nevada, N.A. (hereinafter referred to as “HSBC Bank”),¹ one of the defendants in this action. Ms. Barr purchased the motorcycle for her son with the understanding that he would make payments to her, and she would, in turn, make the loan payments to HSBC Bank.

In 2009, Ms. Barr became delinquent in her payments to HSBC Bank, and HSBC Bank repossessed the motorcycle. Based on its determination that Ms. Barr owed a deficiency balance on the motorcycle loan, HSBC Bank hired NCB Management Services, Inc. (hereinafter referred to as “NCB Management”), a professional debt collector who is the remaining defendant in this action. Ms. Barr alleges that, in February 2010, NCB Management began aggressively attempting to collect the deficiency balance she allegedly owed on the motorcycle loan in a manner that violated the WVCCPA. According to Ms. Barr, NCB Management misrepresented facts to her, made incorrect legal representations about her eligibility to file for bankruptcy protection, communicated directly with third-party family members who were not liable on the account against her express instructions to not contact said family members, improperly accessed and used information from Ms. Barr's and her husband's credit report, and badgered her to use her husband's credit card to pay off the alleged deficiency balance.

On June 14, 2010, Ms. Barr filed a complaint against HSBC Bank and NCB Management in the United States District Court for the Northern District of West Virginia. In this suit, Ms. Barr alleged violations of the WVCCPA and asserted various common law claims that are not at issue in this certified question action. On August 6, 2010, NCB filed an answer and a motion to dismiss claiming that a consumer such as Ms. Barr has no private cause of action against a professional debt collector under the WVCCPA. Ms. Barr opposed the motion. Finding the WVCCPA to be ambiguous on this issue, the district court certified the following question to this Court for resolution:

Whether a consumer has a private cause of action against a non-creditor debt collector pursuant to the West Virginia Consumer Credit and Protection Act, W. Va.Code § 46A–2–122 [sic] et seq.

By order entered October 27, 2010, this Court accepted the certified question. Having considered the parties' briefs, the briefs of various Amici Curiae,² the pertinent authorities, and the oral arguments presented, we now answer the certified question, as reformulated, in the affirmative.

II.STANDARD OF REVIEW

Insofar as the instant case is before this Court upon certified question from the United States District Court for the Northern District of West Virginia, presenting a legal issue for resolution, our consideration is plenary. “This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.” Syl. pt. 1, Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424 (1999). See also Syl. pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000) ( “ ‘A de novo standard is applied by this [C]ourt in addressing the legal issues presented by a certified question from a federal district or appellate court.’ Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).”). Cf. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”). With the foregoing standard in mind, we now will address the issue raised in the certified question.

III.DISCUSSION

Before endeavoring to answer the certified question presented by the United States District Court, we exercise our authority to reformulate the question so that we may fully and clearly address the legal issue presented therein:

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51–1A–1 et seq. and W. Va.Code, 58–5–2 [ (1998) (Repl.Vol.2005) ], the statute relating to certified questions from a circuit court of this State to this Court.

Syl. pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993). See also W. Va.Code § 51–1A–4 (1996) (Repl.Vol.2008) (“The Supreme Court of Appeals of West Virginia may reformulate a question certified to it.”). We reformulate the question as follows:

Does W. Va.Code § 46A–5–101(1) (1996) (Repl.Vol.2006) allow a consumer to assert a private cause of action against a professional debt collector who has engaged in debt collection practices that are prohibited by the West Virginia Consumer Credit and Protection Act, W. Va.Code § 46A–1–101 et seq. ?

Answering this reformulated certified question requires us to analyze W. Va.Code § 46A–5–101(1), which states in relevant part:

If a creditor has violated the provisions of this chapter applying to ... any prohibited debt collection practice, ... the consumer has a cause of action to recover actual damages and in addition a right in an action to recover from the person violating this chapter a penalty in an amount determined by the court not less than one hundred dollars nor more than one thousand...