Biser v. Manufacturers & Traders Trust Co., 211 F. Supp. 3d 845

Background

Charles and Janice Biser sued M&T Bank after M&T allegedly placed force‑placed insurance on their mortgaged property, added charges, and repeatedly called Mrs. Biser about alleged delinquencies from 2009 onward. Calls allegedly continued after counsel was retained.
Plaintiffs asserted violations of the West Virginia Consumer Credit and Protection Act (WVCCPA) (W. Va. Code §§ 46A‑2‑128(e), 46A‑2‑125(d)), negligent training/supervision, and invasion of privacy; they sought, among other relief, cancellation of indebtedness.
M&T moved for summary judgment on all counts; Plaintiffs moved for partial summary judgment on WVCCPA liability.
Key factual disputes include when M&T was informed of Plaintiffs’ counsel (record contains call notes and letters but no single undisputed date), the number/timing/content of calls, and whether some call entries were backdated.
Court determined the 2015 WVCCPA amendments are substantive (not merely clarifying) and therefore apply prospectively; pre‑amendment law governs the alleged conduct.
Rulings: Plaintiffs’ partial summary judgment denied; M&T’s summary judgment granted in part (negligent training/supervision, invasion of privacy, cancellation of debt) and denied in part (WVCCPA claims for trial).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Retroactivity of 2015 WVCCPA amendments	Amendments clarify existing law and should apply to calls at issue	Amendments are substantive changes that cannot be applied retroactively	Amendments are substantive; pre‑amendment WVCCPA governs conduct (amendments prospective)
§ 46A‑2‑128(e) (contact after representation)	Bisers: M&T continued direct calls after being told they had counsel, so automatic violation	M&T: Disputes about when/if written notice with counsel’s contact info was received; factual disputes preclude plaintiff judgment	Summary judgment for plaintiffs denied; material factual disputes remain for jury about when M&T could have ascertained counsel info
§ 46A‑2‑125(d) (repeated/harassing calls)	Bisers: Volume/timing/content of calls (including after counsel notice) meet "repeated or continuous" standard	M&T: Calls spread over years and lacked aggravating factors; pre‑amendment standard is totality of circumstances, not a simple call count	Jury must decide under pre‑amendment totality test; plaintiffs’ motion denied; M&T not entitled to summary judgment on these claims
Cancellation of debt under WVCCPA § 46A‑5‑105	Plaintiffs sought cancellation for willful violations	M&T: Debt is secured by deed of trust so cancellation unavailable	M&T entitled to summary judgment on cancellation because loan secured by deed of trust
Negligent training/supervision	Bisers: Employer liable for employees’ collection misconduct	M&T: No evidence of damages or causal link to negligent supervision	M&T entitled to summary judgment; plaintiffs produced no evidence that negligent supervision caused provable damages
Invasion of privacy (intrusion upon seclusion)	Calls were harassing and invasive	M&T: Calls not concentrated, not at inappropriate hours, and lacked offensive language or other aggravating features	M&T entitled to summary judgment; plaintiffs failed to show highly offensive intrusion or supporting damages

Key Cases Cited

Landgraf v. USI Film Prods., 511 U.S. 244 (retroactivity framework for statutory amendments)
Pub. Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329 (statutory amendments that diminish substantive rights not applied retroactively)
Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80 (legislative intent and prospective/retroactive application analysis)
Brown v. Thompson, 374 F.3d 253 (discussing use of legislative characterization as clarifying vs. substantive)
Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden principles)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard and reasonable jury inquiry)