LTD Financial Services, L.P. v. Brian Collins

Summary

The Supreme Court of Appeals of West Virginia affirmed a Raleigh County Circuit Court judgment awarding Brian Collins $18,406 for eleven violations of the West Virginia Consumer Credit and Protection Act. The court held that violations of West Virginia Code § 46A-2-128(e) do not require proof of intent and that the creditor failed to establish either an unintentional violation or a bona fide error of fact under § 46A-5-101(8). The court issued the decision as a memorandum decision under Rule 21 and found no substantial question of law or prejudicial error.

Holdings

1. A consumer asserting a violation of West Virginia Code § 46A-2-128(e) is not required to prove that the debt collector intended to violate the statute.
2. The intent requirement recognized for liability under West Virginia Code § 46A-2-125(d) does not apply to claims under § 46A-2-128(e), because the statutes contain materially different language.
3. West Virginia Code § 46A-5-101(8) provides two separate affirmative defenses: an unintentional violation and a violation resulting from a bona fide error of fact, each requiring the creditor to establish the defense by a preponderance of the evidence and, for the bona fide-error defense, to show maintenance of procedures reasonably adapted to avoid the violation.
4. Failure to follow a procedure that was not contained in the creditor's produced policies and procedures does not constitute a bona fide error of fact, particularly where the creditor also fails to prove that the relevant procedures were maintained or that the collector was trained or tested on them.

Questions Presented

1. Whether Collins was required to prove that LTD intended to violate West Virginia Code § 46A-2-128(e).
2. Whether LTD established an affirmative defense under West Virginia Code § 46A-5-101(8) by proving that the violations were unintentional or resulted from a bona fide error of fact notwithstanding procedures reasonably adapted to avoid the violations.
3. Whether the circuit court erred in finding that LTD failed to prove its affirmative defenses and in awarding Collins $18,406.

Disposition

affirmed