Ferrell v. Santander Consumer USA, Inc.
2012 U.S. Dist. LEXIS 36774
| S.D.W. Va | 2012Background
- Plaintiffs James and Nina Ferrell obtained a motor vehicle loan from Santander to purchase a car in May 2008; monthly payments were $257.97 for 72 months.
- The loan was assigned to Santander on September 6, 2010.
- Defendant allegedly contacted plaintiffs repeatedly about the debt, with disputes over whether plaintiffs were represented by counsel after a September 16, 2010 notice to Santander.
- Santander records indicate numerous calls to the Ferrells; plaintiffs’ handwritten log and Santander’s logs disagree on the exact number and timing.
- Plaintiffs filed suit in Mingo County Circuit Court (WV) asserting WVCCPA violations and state-law claims; Santander removed, alleging diversity jurisdiction.
- The court granted in part and denied in part Santander’s motion for summary judgment, allowing Counts I and II to proceed and disposing of Counts III–V.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 72 calls violated the WVCCPA Abuse Provision | Ferrells contend repeated/continuous calls violated § 46A-2-125(d). | Calls alone are not enough to prove unreasonableness or intent to annoy or oppress. | Genuine issue of material fact; summary judgment denied on Count I. |
| Whether Santander knew or should have known of represented status under WVCCPA Representation Provision | Ferrells notified Santander of counsel representation; name and contact provided. | No record Santander received such notice; no confirmation of representation. | Genuine issue of material fact; summary judgment denied on Count I. |
| Whether Santander negligently trained/supervised employees (Count II) | Volume of calls and alleged recordkeeping issues imply negligent supervision/hiring. | No direct evidence of improper training or policies; mere volume is insufficient. | Summary judgment denied on Count II; inference of negligent supervision barely survives. |
| Whether the conduct supports intentional infliction of emotional distress (Count III) | Repeated calls workplace harassment could be extreme and outrageous. | Calls over months without evidence of distress or outrageous conduct. | Summary judgment granted for Santander; claim for IIED dismissed. |
| Whether invasion of privacy (Count IV) and nuisance (Count V) survive | Calls to third parties and general collection conduct infringe privacy and create nuisance. | No damages shown; conduct not sufficient for these claims. | Counts IV and V granted to Santander; these claims dismissed. |
Key Cases Cited
- McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770 (1995) (remedial WVCCPA construction; liberal interpretation favored)
- Philyaw v. E. Associated Coal Corp., 219 W.Va. 252 (2006) (elements of intentional and reckless infliction of emotional distress)
- Travis v. Alcon Labs., 202 W.Va. 369 (1998) (outrageous conduct standard for IIED; jury question on outrageousness)
- Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (1983) (invasion of privacy includes unreasonable intrusion on seclusion)
- Hendricks v. Stalnaker, 380 S.E.2d 198 (1989) (reasonableness of interference for private nuisance; social value balancing)