O'Dell v. USAA Federal Savings Bank, 3:17-cv-01427

Background

Plaintiff Christopher O’Dell opened a USAA credit card, fell behind on payments, and accumulated roughly $11,000 in debt; USAA Federal Savings Bank (USAA FSB) handled collection.
From Dec. 2012 onward USAA placed numerous calls to O’Dell’s home, cell, and work; O’Dell logged ~183 calls over four months and says the calls made him nervous.
On Jan. 23, 2013 O’Dell says he read a lawyer-notice script to a USAA caller identifying attorney Scott Stapleton and asking calls to stop; USAA’s records contain a cryptic December 31, 2012 entry reflecting possible attorney notice but are otherwise hard to interpret.
O’Dell sued in state court asserting: (1) WVCCPA claims (including §§46A-2-128(e) and 46A-2-125(d)); (2) intentional infliction of emotional distress (IIED); and (3) common-law invasion of privacy; case was removed to federal court.
The court finds genuine factual disputes as to the WVCCPA claims (so summary judgment denied as to Count I) but grants summary judgment for defendant on IIED and invasion-of-privacy claims (Counts II and III).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether USAA violated WV Code §46A‑2‑128(e) by communicating after learning O’Dell had counsel	O’Dell says he told the caller the attorney’s name and location and asked calls to stop; internet search could easily produce counsel’s address	USAA argues the record does not establish that its representative actually heard or knew the attorney’s name/address	Denied summary judgment on this claim: court finds a material factual dispute whether the rep heard the notice and that counsel’s address could be easily ascertained, so claim survives
Whether §46A‑2‑125(d) claim survives and which statutory version governs (pre‑2015 vs. 2015 amendment)	O’Dell relies on repeated/continuous calls, calls after notice of counsel, messages at work, and evidence the calls made him nervous to show intent to annoy under the pre‑2015 statute	USAA urges application of the 2015 amended statute (introducing numeric thresholds) and contends call volume alone cannot establish intent	Denied summary judgment on §46A‑2‑125(d) (pre‑2015 version applies): court declines retroactive application of 2015 amendment and finds O’Dell produced more than call volume—facts create jury issues on repeated/continuous calls and intent
Whether repeated calls support IIED (extreme/outrageous conduct)	O’Dell relies on call volume, calls after counsel notice, and mental distress	USAA argues calls were not outrageous or extreme; no abusive or threatening language	Granted summary judgment for USAA on IIED: court holds conduct, though potentially unlawful under WVCCPA, is not sufficiently atrocious/outrageous to meet IIED standard
Whether common‑law invasion of privacy survives (intrusion on seclusion or unreasonable publicity)	O’Dell claims intrusion from repeated calls and publicity from calls/messages to workplace	USAA argues calls were not at highly offensive hours, content not disclosed to third parties, and no showing of substantial burden or disclosure of private facts	Granted summary judgment for USAA on invasion of privacy: court finds no evidence calls were highly offensive or that private facts were publicized to third parties

Key Cases Cited

Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and drawing inferences for nonmoving party)
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (drawing reasonable inferences on summary judgment)
JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459 (speculation cannot defeat summary judgment)
Celotex Corp. v. Catrett, 477 U.S. 317 (nonmoving party burden at summary judgment)
Landgraf v. USI Films Prods., 511 U.S. 244 (presumption against retroactive application of statutes)
Valentine & Kebartas, Inc. v. Lenahan, 801 S.E.2d 431 (W. Va. Sup. Ct.; discussion of intent under pre‑amendment §46A‑2‑125(d))
Biser v. Mfrs. & Traders Tr. Co., 211 F. Supp. 3d 845 (S.D.W. Va.; holding that 2015 WVCCPA amendments do not apply retroactively)
Travis v. Alcon Labs., Inc., 504 S.E.2d 419 (W. Va.; elements and high bar for IIED)