Gary Sigman v. Discover Bank, 16-0412

Background

Discover Bank obtained a 2009 judgment against Sigman for a credit-card debt and recorded a judgment lien on his property; judgment amount was $13,889.79.
In March 2012 Sigman and Discover agreed to settle the debt for $1,330; Discover acknowledged receipt and that the account was settled in July 2013.
Discover did not record a release of the lien within 30 days as required by W. Va. Code § 38-12-1; Sigman requested release in September 2015 and filed suit in November 2015; the lien was released the same day he filed suit.
Sigman’s amended complaint asserted claims under the West Virginia Consumer Credit Protection Act (WVCCPA) for false representations about the debt, common-law negligence, common-law defamation (failure to release lien), and an action to compel release of the lien.
The circuit court granted Discover’s motion to dismiss: it held (1) WVCCPA claims required an existing debt and a debt collector collecting it; (2) no common-law negligence claim where a statutory remedy exists (W. Va. Code § 38-12-10); (3) defamation claim was time-barred because continuing-tort doctrine did not revive it; and (4) plaintiff’s belated attempt to add evidence about post-settlement collection efforts was not considered.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether WVCCPA applies despite no existing debt	Sigman: WVCCPA does not require an actual outstanding debt to sue for false collection representations	Discover: WVCCPA requires a debt and a debt collector attempting collection; complaint lacks allegation of an existing debt	Court: WVCCPA claim fails—statute requires a debt and a debt collector attempting to collect
Whether common-law negligence claim lies for failing to release a lien	Sigman: Negligence claim should be available; otherwise no remedy and constitutional concerns	Discover: Statutory scheme provides exclusive remedy for failure to release lien	Court: No separate negligence claim—statutory remedy (§ 38-12-10) supersedes common law
Whether continuing-tort doctrine tolls defamation statute of limitations	Sigman: Failure to release lien is continuing defamation; discovery within limitations	Discover: Only the original filing was a statement (true); no continuing wrongful conduct to toll limitations	Court: Defamation accrues at last tortious act; lien filing was true and any untruth would have occurred in Aug 2013 — suit filed too late; continuing-tort doctrine inapplicable
Whether evidence of post-settlement collection attempts (new collector letter) defeated dismissal	Sigman: Discovered evidence shows Discover (via agency) continued to attempt collection, which would support claims	Discover: Amendment/evidence was untimely and not before the court; not part of the record	Court: Circuit court did not consider the late amendment/evidence; appellate review limited to record — no error in dismissal

Key Cases Cited

State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (de novo review of Rule 12(b)(6) dismissal)
Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977) (complaint not to be dismissed unless no set of facts can entitle plaintiff to relief)
Wiggins v. E. Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987) (on appeal, allegations of complaint are taken as true in Rule 12(b)(6) review)
Bell v. Vecellio & Grogan, Inc., 197 W. Va. 138, 475 S.E.2d 138 (1996) (statutory revision of an area of law supersedes conflicting common law)
Roberts v. W. Va. Am. Water Co., 221 W. Va. 373, 655 S.E.2d 119 (2007) (continuing tort accrual principles and distinction between continuing conduct and continuing damages)
State ex rel. U.S. Bank Nat’l Ass’n v. McGraw, 234 W. Va. 687, 769 S.E.2d 476 (2015) (recognizing § 38-12-10 as establishing a cause of action for failure to release a recorded lien)
State v. Calloway, 207 W. Va. 43, 528 S.E.2d 490 (1999) (trial court evidentiary rulings reviewed for abuse of discretion)