John O'Brien, The West Virginia Record
May 21, 2013
CHARLESTON Ally Financial and West Asset Management have won summary judgment in a class action lawsuit brought by the wife of a Boone County man who shot himself after a standoff with police.
On May 2, U.S. District Judge Joseph R. Goodwin granted both defendants motion for summary judgment in a lawsuit that alleged they were continuing to contact Sadie White over the debts of her and her late husband, Jessie, even after they were notified she was represented by counsel.
The lawsuit alleged violations of the West Virginia Consumer Credit and Protection Act.
It bears noting that the WVCCPA and particularly, the claim at issue involves attempts from the defendants to collect on a debt owed, Goodwin wrote.
The language in 46A-2-128(e) reflects this by stating [n]o debt collector shall use unfair or unconscionable means to collect or attempt to collect any claim. W. Va. Code 46A-2-128(e) (emphasis added).
The plaintiffs representation by an attorney for her personal bankruptcy has no bearing on whether she appears to be represented by an attorney with respect to the debt at issue.
Even if Ally and West both knew that the plaintiff was represented by counsel for her personal bankruptcy, neither defendant would violate 46A-2-128(e) by communicating with her if it did not appear that she was represented by an attorney with respect to the debt at issue.
White was 66 years old on Sept. 3, 2008, when family members urged the Sheriffs Department to check on him at his residence. What resulted was a standoff, and White and deputies traded shots at each other during the evening.
The deputies fired tear gas into the building in which White was barricaded, and White apparently shot himself.
In 2010, Sadie White filed a lawsuit on behalf of herself and Jessie Whites estate against Ally Financial, Boone Memorial Hospital, West Asset Management and Cabin Creek Health Systems over their debt collection practices.
She was represented by Brett Justice Preston and Dan R. Snuffer of Preston & Salango in Charleston and L. Lee Javins II of Bucci, Bailey & Javins in Charleston.
The lawsuit sought $4,400 per statutory violation, as well as punitive damages.
West Asset Management removed the case to federal court in 2012, sometime after the plaintiffs amended their complaint to make class action allegations.
The proposed class were all persons from whom the defendants attempted to collect, or actually collected, debts owed by West Virginia decedents outside of the probate process, at any time from within the applicable limitations period through the time of class certification.
That included 9,960 accounts serviced by West that would have been included in the class.
The amount in controversy, multiplying the high end of the penalty for a violation by the amount of accounts, was more than $44 million against West, the company wrote.
I am mindful of the fact that the WVCCPA should be liberally construed, as the purpose of the statute is to protect consumers from unfair, illegal and deceptive conduct, Goodwin wrote.
In the instant matter, however, viewing the underlying facts and inferences in the light most favorable to the plaintiff, I find that she has not offered sufficient admissible evidence from which a reasonable juror could return a verdict in [her] favor.
Representing West Asset Management were Albert C. Dunn, Jr. of Allen, Kopet & Associates; and James K. Schultz and Allison L. Cannizaro of Sessions, Fishman, Nathan & Israel.
(Editors note: From the West Virginia Record: Reach John OBrien at firstname.lastname@example.org)
For more courtroom news, visit the online Web site at www.wvrecord.com