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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
GLORIA BANKS, et al.,
Plaintiff Below, Appellant
PAUL WHITE CHEVROLET, INC.,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable James C. Stucky, Judge
Civil Action No. 03-C-1411
REVERSED AND REMANDED
Filed: April 12, 2006
| John W. Barrett, Esq.|
Bailey & Glasser, LLP
Charleston, West Virginia
Attorney for Appellant
| Albert C. Dunn, Jr., Esq.
MacCorkle, Lavender, Casey & Sweeney, PLLC
Charleston, West Virginia
Attorney for Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
circuit court's entry of summary judgment is reviewed de novo. Syllabus.
Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syllabus Point 3, Aetna
Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va. 160, 133
S.E.2d 770 (1963); Syllabus Point 1, Williams v. Precision Coil, Inc., 194
W. Va. 52, 459 S.E.2d 329 (1995).
case is before the Court on appeal from the September 10, 2004, Order of the
Circuit Court of Kanawha County granting summary judgment in favor of Appellee
Paul White Chevrolet. This Court has before it the petition for appeal, the response,
the briefs of the parties, and all matters of record. Following the arguments
of the parties and a review of the record herein, this Court finds that the circuit
court erred in granting Appellee's motion for summary judgment. Accordingly,
this Court reverses the September 10, 2004, Order of the circuit court and remands
the matter for further proceedings.
March 27, 2000, Gloria Banks (hereinafter, Banks) entered into
an agreement (hereinafter, the contract) with Paul White Chevrolet
(hereinafter, Paul White) for the purchase of a car. That contract,
titled Retail Installment Contract and Security Agreement, contained
the provision that [i]f a payment is more than 10 days late, you will
be charged 5% of the unpaid portion of any regularly scheduled payment, but
not less than $1.00 nor more than $5.00. In its section titled Additional
Terms of This Contract and Security Agreement, the contract contained
the following provisions:
You agree that the following are additional terms and conditions of this Contract
and that if one or more of the following occur you will be in default:
You fail to make a payment in full when it is due. .
you default, you agree to pay the reasonable expenses, including costs and fees
authorized by statute, that we incur to realize on any security interest.
If you are in default on this Contract, we have all of the remedies provided
by law and this Contract. Before using any remedy, we will send you any notice
and wait for any cure period that the law may require for that remedy. Our
remedies include the following:
We may require you to immediately pay us, subject to any refund required by law,
the remaining unpaid balance of the amount financed, sales finance charges and
all other agreed charges. This right of ours is subject to your limited right
to cure some defaults and to get notice of this right to cure, as provided in
W.Va. Code § 46A-2-106.
We may immediately take possession of the Property by legal process or self-help,
but in doing so we may not breach the peace or unlawfully enter onto your premises.
We may then sell the Property and apply what we receive as provided by law to
our reasonable expenses and then toward your obligations. This right of ours
is subject to your limited right to cure some defaults and to get notice of this
right to cure, as provided in W.Va. Code § 46A-2-106.
[Emphasis added] Paul White subsequently assigned the contract to City National
Bank with recourse, meaning that Paul White remained responsible
for any amount owed, such as in the case of default.
timely made payments according to the contract until November of 2002, at which
time she failed to make a timely payment. On or about December 12, 2002, City
National Bank sent Banks a Notice of Right to Cure Default advising
Banks that she
had until December 22, 2002, to cure the default. According to Banks' deposition
testimony, on or about December 17, 2002, Donald Weekley (hereinafter, Weekley),
who apparently had a contractual relationship with Paul White, appeared at
Banks' home and asked her to pay the amount of the late payment plus a $300 fee. Weekley
did not explain the basis of this fee. Banks borrowed the money
from an acquaintance and gave the money to Weekley, who accompanied Banks to
the bank to cash the check from the acquaintance. (See
City National Bank received regular and timely payments until April 2003. For
this second nonpayment, City National Bank sent Banks a second Notice of
Right to Cure Default on or about May 12, 2003. The notice stated that
Banks had until May 22, 2003, to cure the default. Prior to this deadline to
cure, Weekley, on May 14, 2003, approached Banks at her place of employment and
again asked that she pay the amount of the late payment plus a $300 fee. Together,
Banks and Weekley left Banks' workplace and drove to Banks' house to look for
certain receipts. When Banks was unable to satisfy Weekley that payment had been
made, she again borrowed the money. Banks met Weekley at her place of employment
and gave him the money.
subsequently filed suit against Paul White and City National Bank in the Circuit
Court of Kanawha County alleging unlawful debt collection practices and breach
of the duty of good faith and fair dealing. (See
By motion, Paul White sought a partial summary judgment
asserting that Weekley, as Paul White's agent, engaged in repossession, not debt
collection, on behalf of Paul White. The circuit court agreed. However, instead
of simply granting partial
summary judgment, the court granted full summary
judgment and dismissed Banks' action altogether. The court concluded that each
of Banks' causes of action were dependent on her contention that her action was
a debt collection case governed by the Consumer Credit Protection Act (hereinafter,
the CCPA). (See
In concluding that Banks' action was instead a repossession
case, the court determined that all of Banks' related causes of action failed.
Banks now appeals the circuit court's decision.
STANDARD OF REVIEW
Court has held that [a] circuit court's entry of summary judgment is
reviewed de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.
Va. 189, 451 S.E.2d 755 (1994).
primary issue for consideration by the circuit court below of Paul White's
motion for summary judgment was whether Weekley was acting on behalf of Paul
White as a debt collector in violation of the CCPA or whether he was acting
as a repo man whose actions were protected by the provisions of
the Uniform Commercial Code (hereinafter, UCC). (See
In granting Paul White's summary judgment motion, the
circuit court concluded that Banks had no cause of action under the CCPA because
Weekley was acting as a repo man rather than as a debt collector.
Paul White argues, and the lower court agreed, that Weekley, as a repo
man, was acting lawfully under the provisions of the UCC to attempt,
on the behalf of a seller, to repossess goods in which the seller retained
a security interest. Paul White argues that the $300 fee collected by Weekley
was allowable under the UCC as an expense incurred in attempt to repossess
goods. (See footnote 5)
in the contract presented by Paul White to Banks and signed by both parties,
Paul White acknowledges that Banks had certain rights if she defaulted, which
rights were accorded to her under the provisions of the CCPA. (See
Those rights included Banks' right
to receive notice of and to cure any default. As provided in West Virginia
Code § 46A-2-106 (1998),
a default on any installment obligation or any other secured obligation..., a
creditor may not accelerate maturity of the unpaid balance of any such installment
obligation or any other such secured obligation, commence any action or demand
or take possession of collateral on account of default until ten days after notice
has been given to the consumer of his or her right to cure any default by tendering
the amount of all unpaid sums due at the time of the tender, without acceleration,
plus any unpaid delinquency or deferral charges and by tendering any other performance
necessary to cure such default.
Under the terms of the contract and the provisions of West Virginia Code § 46A-2-106,
Banks enjoyed a cure period of ten days following the notices of default made
on December 12, 2002, and May 12, 2003. The record demonstrates that Weekley
approached Banks both in December of 2002 and again in May of 2003 before
expiration of each respective ten- day cure period. In so doing, not only did
Paul White arguably violate the express terms of its own contract, but Paul
White also may have invited whatever additional expenses it incurred through
the employ of Weekley's services because it failed to allow Banks the time
permitted to cure the default.
purest essence, the underlying motion raises a uniquely factual issue which does
not readily lend itself to resolution by summary judgment. Here, the material
facts regarding Weekley's status were disputed and could be viewed differently
by reasonable minds. For example, at no point was Banks' car ever actually and
repossessed by Weekley on behalf of Paul White. Indeed, in view of the cure
provisions of the contract, Paul White would not appear to have had a right
to repossess the vehicle on either of the dates that Weekley approached Banks.
Accordingly, the additional $300 fee charged by Weekley upon recovery of the
late payment arguably could not be an expense incurred in an attempt to lawfully
repossess goods. A reasonable conclusion might well be that the fee was a debt
collector's fee, which is expressly prohibited by West Virginia Code § 46A-2-128(c)
judgment is appropriate only if the record demonstrates that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. West Virginia Rules of Civil Procedure, Rule
56(c). In accordance with Rule 56(c), this Court has held that [a] motion
for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law. Syl. Pt. 3, Aetna Cas. & Sur.
Co. v. Federal Ins. Co. of New York,
148 W.Va. 160, 133 S.E.2d 770 (1963);
Syl. Pt. 1, Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d
329 (1995). The presence, as here, of a bona fide
factual dispute on a
matter so essential to the essence of Paul White's summary judgment motion precludes
such a motion from prevailing. Here, there remains a
factual issue as to whether a debt collection was carried out in violation
of the CCPA, and that is an issue for a jury to resolve. (See
that the record below was a record in which there existed an issue of material
fact and that Paul White was not entitled to summary judgment as a matter of
law. We, therefore, find that the granting of summary judgment in Paul White's
favor, was improper. (See
concluded that there were issues of material fact to be determined through
trial, this Court finds that it was error for the Circuit Court of Kanawha
County to enter an Order Granting Summary Judgment in favor of Appellee. Accordingly,
we reverse and remand this matter to the circuit court for further proceedings
consistent with this decision.
Weekley apparently did
not deposit the money with City National Bank until January 27, 2003, and only
then after Banks inquired as to why the bank had not received the payment.
City National Bank was
later dismissed. Banks also sought to certify the suit as a class action, but
that request was ultimately denied by the court.
Code § 46A-1-101, et seq
, West Virginia
Code § 46-1-101, et seq
, West Virginia
Code § 46-2-707 and 710 (1963).
This contract was presumably
prepared by Paul White and/or its attorney.
It is true that West Virginia
Code § 46A-2-115 (1974) allows for reasonable expenses including
costs and fees authorized by statute, incurred in realizing on a security interest. That
provision, however, may not save Paul White. The facts arguably show that Paul
White was not realizing on a security interest because at the time
that Weekley approached Banks about the default, Paul White had no legal or
contractual right to realize on its security interest in the car
as the ten-day cure period had not yet expired. Once again, there remains a
question as to whether a debt collection was performed in violation of the
We do not see fit to delve
any further into the merits of the case at this time as it is more appropriate
for the lower court to examine the matter further.