Valentine & Kebartas, Inc. v. Gary J. Lenahan
2017 WL 2626387
| W. Va. | 2017Background
- V&K (a third-party debt collector) purchased a delinquent ADT account and sent a March 9, 2012 notice; Lenahan denied owing ADT but never told V&K he disputed the debt.
- V&K used an autodialer to call the telephone number ADT provided (Lenahan’s cell) between March 10 and November 17, 2012.
- V&K attempted 250 calls over eight months (never more than six calls per day; generally between 8 a.m. and 9 p.m.); Lenahan did not answer any of the 250 calls and did not contact V&K.
- Lenahan sued under W.Va. Code § 46A-2-125(d) claiming the repeated unanswered calls were made with intent to annoy/harass; after a bench trial the circuit court awarded $75,000 based on statutory penalties for 230 calls it found violative.
- The circuit court found a “ramp up” in calls beginning March 26–28 and inferred intent to harass from volume/frequency alone; the Supreme Court reversed, holding call volume alone (without evidence of intent) insufficient under § 46A-2-125(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether call volume alone can establish intent under W.Va. Code § 46A-2-125(d) | Lenahan: the repeated/unanswered calls (250 over 8 months, concentrated spikes) show intent to annoy/harass | V&K: autodialer calls were lawful collection efforts, placed within time limits, and Lenahan never told V&K to stop or disputed the debt | Reversed: volume alone, without evidence of intent to annoy/abuse/oppress/threaten, is insufficient to prove a § 46A-2-125(d) violation |
| Whether silence by the consumer imputes knowledge that calls are unwanted | Lenahan: silence plus call pattern shows the consumer did not want contact | V&K: silence does not notify collector to stop; no ‘‘do not call’’ or dispute provided | Held: consumer silence alone does not impute knowledge or replace evidence of intent |
| Whether trial court appropriately shifted burden to defendant to show a legitimate purpose for calling | Lenahan: trial court inferred lack of legitimate purpose from call pattern | V&K: statute places burden of proving intent on plaintiff; defendant need not justify routine collection calls absent proof of intent | Held: error to shift burden; plaintiff must prove intent to annoy/harass |
| Whether unrefuted evidence of lawful collection procedures defeats liability | Lenahan: procedures do not preclude inference from call pattern | V&K: showed autodialer settings, time limits, and compliance with law | Held: such evidence undermines an inference of intent when plaintiff offers no contrary proof |
Key Cases Cited
- Ferrell v. Santander Consumer USA, Inc., 859 F. Supp. 2d 812 (S.D.W. Va. 2012) (denied summary judgment where numerous calls after notice of counsel could allow jury to infer intent)
- Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d 495 (S.D.W. Va. 2014) (granted summary judgment where call volume alone did not establish intent absent other evidence)
- Timberline Four Seasons Resort Mgmt. Co. v. Herlan, 223 W. Va. 730 (W. Va. 2009) (articulating standard of review for bench-trial findings)
- Public Citizen, Inc. v. First Nat'l Bank in Fairmont, 198 W. Va. 329 (W. Va. 1996) (announcing two-pronged deferential appellate standard for bench trials)