Thomas v. Firestone Tire and Rubber Co., No. CC913

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW
• Citation: 164 W.Va. 763,266 S.E.2d 905
• Docket Number: No. CC913
• Decision Date: 23 May 1980
• Parties: Carl W. THOMAS v. FIRESTONE TIRE AND RUBBER COMPANY.

Page 905

266 S.E.2d 905 164 W.Va. 763 Carl W. THOMAS
v.
FIRESTONE TIRE AND RUBBER COMPANY. No. CC913. Supreme Court of Appeals of West Virginia. May 23, 1980.

Page 906

Syllabus by the Court

1. In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meanings. Syl. pt. 1, Tug Valley Recovery Center v. Mingo County Commission, W.Va., 261 S.E.2d 165 (1979).

2. The word "any," when used in a statute, should be construed to mean any.

3. The plain meaning of W.Va. Code § 46A-2-122 requires that the provisions of article 2 of Chapter 46A regulating improper debt collection practices in consumer credit sales must be applied alike to all who engage in debt collection, be they professional debt collectors or creditors collecting their own debts.

[164 W.Va. 764] Marlin D. Schreffler, Princeton, for plaintiff.

R. W. Roahrig, Johnston, Holroyd & Gibson, Princeton, for defendant.

McGRAW, Justice.

This case presents an issue of first impression in this jurisdiction. We are called upon to decide whether a creditor collecting his own debt is subject to the provisions of the West Virginia Consumer Credit and Protection Act governing the practices of debt collectors. ¹

The case has arisen as follows: In June of 1975, the plaintiff, Carl W. Thomas, entered into a consumer credit contract with the defendant, Firestone Tire and Rubber Company, purchasing various items for his home and car. The goods and services involved were to be paid in installments. During the year 1977, Mr. Thomas became unemployed and he was unable to maintain the payments. He contacted an attorney who, on December 20, 1979, prepared and posted a letter to defendant's local outlet where he purchased the goods, stating that any further correspondence should be directed to the attorney. ²

Plaintiff contends that the defendant continued attempts to collect the debt from him by communicating directly with him and members of his family by telephone and letter.

Mr. Thomas filed suit in the Circuit Court of Mercer County, alleging violations of the West Virginia Consumer Credit Protection Act. Defendant filed an answer and counterclaim for the outstanding balance on the transaction, which counterclaim was answered

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by the plaintiff. Following discovery, a motion for partial summary judgment was filed by the plaintiff containing a recital [164 W.Va. 765] of the alleged communications between the defendant and plaintiff. Defendant opposed the motion, admitting the acts of communication, but arguing that it was exempt from the provisions of Chapter 46A, art. 2, because it was not a "debt collector" within the meaning of the act.

Plaintiff's motion was denied upon hearing before the circuit court, and plaintiff moved to certify questions to the Supreme Court of Appeals pursuant to W.Va. Code § 58-5-2.

As framed by the litigants, the following two questions were presented for this Court's consideration by the Circuit Court of Mercer County.

1. Does the term "debt collector" as defined by Chapter 46A, art. 2, § 122, of the West Virginia Code include a creditor collecting its own debts?

2. Do sections 126 and 128 of art. 2, Chapter 46A, of the West Virginia Code, apply to creditors collecting their own debts?

At the outset, even though not raised as an issue on the facts of this case, we must note that the provisions of Chapter 46A, article 2 of the West Virginia Code specifically apply to transactions which may properly be classified as "consumer credit sales" under W.Va. Code § 46A-1-102(12). This is made clear by the language of W.Va. Code § 46A-1-103(3), which specifies that consumer protection in a non-"consumer credit sale" situation is provided exclusively by the provisions of articles six ( § 46A-6-101 et seq.) and seven ( § 46A-7-101 et seq.) of Chapter 46A.

Thus the provisions of article 2 of Chapter 46A ( § 46A-2-101 et seq.) are applicable to a sale of goods, services or an interest in land in which:

(i) Credit is granted either by a seller who regularly engages as a seller in credit transactions of the same kind or pursuant to a seller credit card;

[164 W.Va. 766] (ii) The buyer is a person other than an organization;

(iii) The goods, services or interest in land are purchased primarily for a personal, family, household or agricultural purpose;

(iv) With respect to a sale of goods or services, the amount financed does not exceed twenty-five thousand dollars. W.Va. Code § 46A-1-102(12) (1979).

It is also important to note that we are not called upon to decide whether the activities of the defendant in this case did in fact constitute a violation of the Consumer Credit Protection Act. The facts of the controversy are alleged not to be in dispute. The fundamental question submitted is: Is a creditor in a consumer credit sale subject to the provisions of the Consumer Credit Protection Act regulating the practice of debt collection? ³

Page 908

[164 W.Va. 767] The answer to the question presented by this case lies in the interpretation of W.Va. Code § 46A-2-122 (1974). ⁴ That statute reads in part as follows:

For the purposes of...