David Burdette v. Shirley Skeens
16-0342
| W. Va. | Feb 17, 2017Background
- In 2011 Burdette loaned Skeens $35,174.25 at 12% interest, secured by a lien on her Dunbar, WV home; repayment was 120 monthly $360 installments through June 25, 2021.
- Burdette sued in November 2015 alleging default after Skeens made only a few payments and sought foreclosure based on the lien.
- Skeens answered, denied default, and said she paid as able until losing contact and the bank account used for payments was closed.
- At a February 25, 2016 pretrial conference Burdette conceded he had not given Skeens a WVCCPA notice of default prior to filing suit.
- The circuit court dismissed Burdette’s action without prejudice under the West Virginia Consumer Credit and Protection Act (WVCCPA) for failure to give the required cure notice.
- The Supreme Court of Appeals of West Virginia reversed and remanded, concluding the WVCCPA’s application was premature on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WVCCPA notice requirement barred foreclosure suit | Burdette conceded no notice was given but argued the dismissal was improper | Skeens relied on WVCCPA to argue suit was premature without cure notice | Court: Dismissal under WVCCPA premature; reversed and remanded |
| Whether the loan is governed by WVCCPA or by mortgage/trust deed law (Ch. 38) | Burdette: foreclosure based on lien; WVCCPA should not automatically apply | Skeens: WVCCPA remedy applies to creditor actions | Court: WVCCPA may not apply to mortgages/trust deeds; circuit court erred to assume WVCCPA controlled |
| Whether Burdette qualifies as a "person regularly engaged in the business of making loans" (consumer-loan prerequisite) | Burdette: not regularly in loan business; collecting debt owed to him | Skeens: implicit that WVCCPA applies | Court: Record did not establish Burdette is a regular lender; WVCCPA application unclear |
| Whether FDCPA/debt-collector standards apply | Burdette: he is collecting his own debt, not a third-party debt collector | Skeens: (asserted consumer-protection framework) | Court: Open question whether collector of own debt is a "debt collector" under FDCPA; not resolved here |
Key Cases Cited
- Hafer v. Skinner, 208 W.Va. 689 (2000) (WVCCPA applies only to consumer loans)
- State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770 (1995) (standards for de novo review of circuit court dismissals)
- Henson v. Santander Consumer USA, Inc., 817 F.3d 131 (4th Cir. 2016) (discusses whether purchaser/collector of loans is a "debt collector" under FDCPA)
- Sheriff v. Gillie, 136 S. Ct. 1594 (2016) (describes FDCPA scope and definition of "debt collector")