Mortgage v. Cole

• Decision Date: 08 March 2013
• Docket Number: 11–1604.,Nos. 11–1288,s. 11–1288
• Parties: VANDERBILT MORTGAGE AND FINANCE, INC., Petitioner, v. Terri L. COLE, Respondent.
• Court: West Virginia Supreme Court

230 W.Va. 505

740 S.E.2d 562

VANDERBILT MORTGAGE AND FINANCE, INC., Petitioner,

v.Terri L. COLE, Respondent.

Nos. 11–1288, 11–1604.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 16, 2013.

Decided March 8, 2013.

Syllabus by the Court

1. Because the amount of an award of civil penalties pursuant to W. Va.Code § 46A–5–101(1) (1996) is within the discretion of the circuit court, we review an award of civil penalties under this section for abuse of discretion.

2. Under W. Va.Code § 46A–5–101(1) (1996), an award of civil penalties is not conditioned on an award of actual damages.

3. The maximum award of a civil penalty allowable under W. Va.Code § 46A–5–101(1) (1996), adjusted for inflation pursuant to W. Va.Code § 46A–5–106 (1994), does not violate the due process and excessive fines clauses of the West Virginia Constitution and United States Constitution absent an abuse of discretion by the circuit court awarding the civil penalty.

Marc E. Williams, Esq., Nelson Mullins Riley Scarborough LLP, Huntington, WV, Matthew D. Patterson, Esq., Jeremy C. Hodges, Esq., Columbia, SC, for the Petitioner.

Sara Bird, Esq., Mountain State Justice, Inc., Clarksburg, WV, for the Respondent.

BENJAMIN, Chief Justice:

The petitioner, Vanderbilt Mortgage and Finance, Inc. (“Vanderbilt”), appeals both the August 15, 2011, Order Awarding Civil Penalties (“civil penalties order”)(Case Number 11–1288) and the October 18, 2011, Final Order Awarding Attorney Fees and Costs (“attorney fees order”) (Case Number 11–1604) of the Circuit Court of Harrison County. Vanderbilt argues that the circuit court erred by granting civil penalties¹ and attorney fees to the respondent, Terri L. Cole. Ms. Cole contends that the circuit court's award of civil penalties and attorney fees is congruent with the laws of this state and that the circuit court did not abuse its discretion in awarding either.

Because the factual history and procedural history giving rise to the two cases sub judice are the same, the cases have been consolidated for this Court's consideration and resolution. After thoroughly reviewing the record presented, the briefs, the relevant legal authorities, and the arguments of Vanderbilt and Ms. Cole, we find that the circuit court did not commit error below with regard to either the August 15, 2011, civil penalties order or the October 18, 2011, attorney fees order. We therefore affirm both orders.

I.FACTUAL AND PROCEDURAL BACKGROUND

In October of 1996, Ms. Cole and her husband ² financed the purchase of a manufactured home in Harrison County, West Virginia, through Ford Consumer Finance Company. In total, Ms. Cole and her husband borrowed $46,670.22, which was to be paid back over thirty years with interest accruing annually at 9.25%. The loan was secured by a deed of trust on the home and the underlying property. In April of 2005, Vanderbilt became the servicer of the loan.

Ms. Cole admits that over the life of the loan, she had difficulties making her monthly payments. Furthermore, after Vanderbilt began servicing her loan, she did not make one payment on time. In an effort to facilitate payment, Vanderbilt and Ms. Cole negotiated three separate loan modifications in 2005, 2007, and 2009.

During the time Vanderbilt serviced Ms. Cole's loan, Vanderbilt had difficulties contacting Ms. Cole directly. Ms. Cole did not have a landline phone in her home for the majority of time Vanderbilt serviced the loan; however, she did maintain a consecutive string of cellular phone numbers. The record does not reflect that Ms. Cole attempted to avoid Vanderbilt. On the contrary, she provided her mother's phone number to Vanderbilt, and Ms. Cole made calls to Vanderbilt from landline phones owned by clients³ and relatives. In its attempts to reach Ms. Cole, Vanderbilt called the phone numbers previously provided to it by Ms. Cole and those phone numbers from which Ms. Cole had called Vanderbilt, such as the phone numbers of her clients.

Ms. Cole defaulted on her loan in 2010. Vanderbilt foreclosed and purchased the home and real property at a trustee's sale. Thereafter, Ms. Cole refused to vacate the home. On November 23, 2010, Vanderbilt filed an unlawful detainer action in magistrate court against Ms. Cole. The action was removed to the circuit court, and Ms. Cole counterclaimed alleging that Vanderbilt had violated the West Virginia Consumer Credit and Protection Act (“WVCCPA”), W. Va.Code § 46A–1–101 to –8–102. Ms. Cole claimed that Vanderbilt had violated the WVCCPA fifty-seven times by engaging in activity such as repeatedly calling relatives and clients after receiving requests that the calls cease, insulting Ms. Cole over the telephone, and revealing private details of the loan to third parties without Ms. Cole's permission.

Trial began in the case on June 27, 2011. At the close of the evidence, the circuit court determined that Vanderbilt's claim for unlawful detainer was a matter of law to be decided by the court and removed that issue from the court's instructions and charge to the jury and from the verdict form. Regarding the claim for unlawful detainer, the circuit court found in favor of Vanderbilt and ordered that Ms. Cole vacate the property within thirty days. The remaining issues—those raised in Ms. Cole's counterclaim—were submitted to the jury. The jury returned a unanimous verdict as follows:

Question 1: On the claim of unlawful debt collection for oppressive and abusive activity (use of language intended to unreasonably abuse the hearer), the jury finds:

X for the defendant, Terri L. Cole and determines that there were 1 violations and awards the defendant, Terri L. Cole, actual damages of $ 0.

Question 2: On the claim of unlawful debt collection for oppressive and abusive activity (placement of repeated, unsolicited calls to third parties despite requests to cease), the jury finds:

X for the defendant, Terri L. Cole and determines that there were 10 violations and awards the defendant, Terri L. Cole, actual damages of $ 0.

Question 3: On the claim of unlawful debt collection for failure to provide a statement of account upon written request, the jury finds:

X for the defendant, Terri L. Cole and awards the defendant, Terri L. Cole, actual damages of $ 0.

Question 4: On the claim of unlawful debt collection for unreasonable publication of indebtedness to a third party, the jury finds:

X for the defendant, Terri L. Cole and determines that there were 1 violations and awards the defendant, Terri L. Cole, actual damages of $ 0.

The circuit court entered the trial order containing the jury's verdict on July 19, 2011.

On August 15, 2011, the circuit court entered an order awarding civil penalties to Ms. Cole pursuant to W. Va.Code § 46A–5–101(1).⁴ The civil penalties order fixed the award as follows:

a. One civil penalty at $4,583.45 for failure to provide a statement of account upon written request. After considering the reprehensibility of [Vanderbilt's] refusal to provide account records, this Court wants to make it abundantly clear to [Vanderbilt] that every debtor has a right to access records pertaining to his or her account. In denying [Ms. Cole's] account records upon request, [Vanderbilt] acted with complete disregard for [Ms. Cole's] statutory rights.... Therefore, this Court attaches the maximum penalty permitted by law for this violation.

b. Ten civil penalties at $2,250.00 for each penalty, totaling $22,500, regarding the placement of repeated and unsolicited calls to Ms. Cole's mother and third parties despite specific requests to cease.... [T]his Court awards [Ms. Cole] a mid-range penalty for each violation.

c. One civil penalty at $458.34 for the use of language intended to unreasonably abuse the hearer....

d. One civil penalty at $4,583.45 for unreasonable publication of indebtedness to a third party.... [T]his Court finds that a stronger fine should be accorded to this violation.

The award of civil penalties totaled $32,125.24. Vanderbilt appealed the award of civil penalties to this Court on September 13, 2011.

In response to Ms. Cole's motion for an award of attorney fees and costs, the circuit court, after entertaining briefing on the matter by both Vanderbilt and Ms. Cole, filed an order on October 18, 2011, granting Ms. Cole's motion for attorney fees and costs.⁵ The court awarded $30,000 of the $48,852.00 requested in attorney fees to Ms. Cole pursuant to W. Va.Code § 46A–5–104, ⁶ reasoning that, upon analyzing the facts pursuant to case law, Ms. Cole deserved attorney fees, but that the award should be limited “due to the mixed degree of success that was achieved.” Vanderbilt appealed the award of attorney fees to this Court on November 15, 2011.

II.STANDARD OF REVIEW

On appeal, this Court is asked to evaluate whether the circuit court erred by awarding civil penalties to Ms. Cole. The WVCCPA allows a party to recover civil penalties “in an amount determined by the court not less than one hundred dollars nor more than one thousand dollars.” W. Va.Code § 46A–5–101(1). Thus, we hold that because the amount of an award of civil penalties pursuant to W. Va.Code § 46A–5–101(1) (1996) is within the discretion of the circuit court, we review an award of civil penalties under this section for abuse of discretion.

This Court is also asked to determine whether the circuit court committed error by awarding attorney fees to Ms. Cole. The award of attorney fees is also reviewed by this Court for an abuse of discretion. We have said,

Our review of the issue of a trial court's award of attorney's fees is to determine whether the lower court committed error in making the award. In Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16(1959), we explained: “[T]he trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees; and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it]...