Crow et al v. Citibank, NA

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
In re: 	)
)
LORRY LEE CROW, 	)
) 	Case No. 24-bk-00314
Debtor. 	) 	Chapter 7
___________________________________ 	)
)
LORRY LEE CROW and 	)
MARTIN P. SHEEHAN, Trustee, 	)
)
Plaintiffs, 	)
)
v. 	) 	Adversary No. 24-ap-00013
)
CITIBANK, N.A., 	)
)
Defendant. 	)
____________________________________ )
MEMORANDUM OPINION
Pending before the Court is a motion for summary judgment. Lorry Crow and Martin P.
Sheehan (the “Plaintiffs”) seek summary judgment as to Count I of their Complaint against
Citibank, N.A. (the “Defendant”) for alleged violations of the West Virginia Consumer Credit and
Protection Act (the “WVCCPA”), W. Va. Code § 46A-2-128(e). Specifically, the Plaintiffs assert
that the Defendant unlawfully continued debt collection efforts despite receiving notice that Lorry
Crow was represented by counsel. The Defendant contends that the notice of representation was
not effective because Ms. Crow did not send it to the Defendant’s registered agent pursuant to the
requirement of W. Va. Code § 46A-2-128(e).
For the reasons stated herein, the Court will deny the Plaintiffs’ Motion for Summary
Judgment and grant summary judgment as to Count I of the Plaintiffs’ Complaint in favor of the
Defendant.
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I. 	STANDARD OF REVIEW
Federal Rule of Civil Procedure (“Rule”) 56, made applicable to this proceeding by Federal
Rule of Bankruptcy Procedure 7056, provides that summary judgment is only appropriate if the
movant demonstrates “that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party seeking summary judgment
must make a prima facie case by showing: first, the apparent absence of any genuine dispute of
material fact; and second, the movant’s entitlement to judgment as a matter of law on the basis of
undisputed facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears
the burden of proof to establish that there is no genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). Demonstrating an absence of any genuine dispute as to any
material fact satisfies this burden. Id. at 323. Material facts are those necessary to establish the
elements of the cause of action. Anderson, 477 U.S. at 248. Thus, the existence of a factual dispute
is material — thereby precluding summary judgment — only if the disputed fact is determinative
of the outcome under applicable law. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A movant
is entitled to judgment as a matter of law if “the record as a whole could not lead a rational trier of
fact to find for the non-movant.” Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (citation
omitted); see also Anderson, 477 U.S. at 248.
If the moving party shows that there is no genuine dispute of material fact, the nonmoving
party must set forth specific facts that demonstrate the existence of a genuine dispute of fact for
trial. 	Celotex Corp.,477 U.S. at 322-23. 	The court is required to view the facts and draw
reasonable inferences in the light most favorable to the nonmoving party. Shaw, 13 F.3d at 798.
However, the court’s role is not “to weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for a trial.” Anderson, 477 U.S. at 249. Nor should
the court make credibility determinations. Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
If no genuine issue of material fact exists, the court has a duty to prevent claims and defenses not
supported in fact from proceeding to trial. Celotex Corp., 477 U.S. at 317, 323-24.
II. 	BACKGROUND
In March of 2024, Lorry Crow held two unpaid consumer accounts with the Defendant. At
some point before March of 2024, the outstanding balances triggered the Defendant’s debt
collection efforts. On or about March 15, 2024, Ms. Crow sought legal representation in relation
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to the debts owed. On March 15, 2024, Ms. Crow’s counsel sent two letters to the Defendant, one
to its principal place of business and one to the address listed on Ms. Crow’s credit report, notifying
it that he represented Ms. Crow and requesting all further communications be directed to him. On
March 19, 2024, the Defendant received one of the two letters. On March 20, 2024, the Defendant
sent Ms. Crow a response letter acknowledging receipt of Ms. Crow’s credit reporting dispute but
contending it did not have sufficient information regarding Ms. Crow’s accounts to investigate the
dispute. On March 22, 2024, the Defendant received the second letter. And again, on March 27,
2024, the Defendant sent Ms. Crow’s counsel a letter in response acknowledging its receipt of Ms.
Crow’s credit reporting dispute but contending it did not have sufficient information regarding the
accounts to investigate the dispute.
Between March 26, 2024, and May 6, 2024, the Plaintiffs assert that the Defendant
contacted Ms. Crow approximately eighty-eight times in violation of W. Va. Code § 46A-2-128(e).
As a result, on May 6, 2024, Ms. Crow’s counsel sent two letters serving as a “Notice of Right to
Cure” for each account pursuant to W. Va. Code § 46A-5-108. Unlike the previous letters, these
letters were sent to the Defendant’s principal place of business and to its registered agent. On May
20, 2024, one of the letters was received by the Defendant’s registered agent. The other letter was
received by the Defendant at its principal place of business on May 10, 2024, and by its registered
agent on June 13, 2024. On May 21, 2024, Ms. Crow’s accounts were coded cease and desist. On
June 20, 2024, the 45-day statutory period for the Defendant to respond to the Right to Cure Notice
expired without the Defendant offering to cure the alleged violations.
On July 12, 2024, the Plaintiffs initiated this adversary proceeding against the Defendant,
alleging violations of the WVCCPA and seeking statutory damages, cancellation of debts, and
attorneys’ fees in Count I and alleging violations of the Telephone Consumer Protection Act (the
“TCPA”), 47 U.S.C. § 227 and seeking statutory and punitive damages in Count II. The Plaintiffs
moved for summary judgment, specifically relating to Count I of the Complaint and the WVCCPA
allegations, arguing that the Defendant’s continued communications constituted violations of the
WVCCPA and that notice sent to the Defendant’s principal place of business was proper and
effective adequate notice. In response, the Defendant argued that the Plaintiffs’ notice was legally
ineffective because it was not sent to its registered agent, as required by W. Va. Code § 46A-2-
128(e). 	In reply, the Plaintiffs argued that W. Va. Code § 46A-2-128(e) should be liberally
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construed to favor consumers, which should render their notice effective despite not having been
sent to the registered agent. 1
III. 	DISCUSSION
The Plaintiffs contend they are entitled to summary judgment as to Count I of the
Complaint based upon proper and effective notice of representation and right to cure letters sent
to the Defendant’s principal place of business. 	The Plaintiffs argue that the West Virginia
Secretary of State’s website failed to list the Defendant’s registered agent, that mailing to the
principal place of business is sufficient notice, and that the Defendant had actual knowledge of
Ms. Crow’s legal representation. 	The Plaintiffs further argue that the WVCCPA is remedial
legislation that is to be liberally interpreted in favor of the consumer. 	The Defendant opposes
summary judgment in the Plaintiffs’ favor arguing the plain and unambiguous language of W. Va.
Code § 46A-2-128(e) provides for notice to be sent to the registered agent.
The Defendant argues the West Virginia Consumer Credit and Protection Act, W. Va. Code
§ 46A-2-128(e), should be construed using the plain meaning of the text. It reads:
"Any communication with a consumer made more than three
business days after the debt collector receives written notice from
the consumer or his or her attorney that the consumer is represented
by an attorney specifically with regard to the subject debt. To be
effective under this subsection, such notice must clearly state the
attorney’s name, address and telephone number and be sent by
certified mail, return receipt requested, to the debt collector’s
registered agent, identified by the debt collector at the office of
the West Virginia Secretary of State or, if not registered with the
West Virginia Secretary of State, then to the debt collector’s
principal place of business.”
W. Va. Code § 46A-2-128(e) (emphasis added). The statutory language is clear and unambiguous:
notice is only effective if sent to the registered agent, provided one is listed with the Secretary of
State. 	The Plaintiffs argue that a liberal interpretation favoring consumers should excuse their
failure to send notice to the registered agent. However, courts cannot apply liberal construction
where statutory text is unambiguous. See Caminetti v. United States, 242 U.S. 470, 485 (1917)
(holding that where statutory language is clear, courts must enforce it as written). 	Further, “[i]t is
well established that when the statute's language is plain, the sole function of the courts—at least
1 Both parties also raised additional arguments relating to the Defendant’s affirmative defenses and its bona fide
error defense, which the Court finds unnecessary to address based upon its ruling.
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where the disposition required by the text is not absurd—is to enforce it according to its terms.”
Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal quotation and citations omitted).
In West Virginia, “[t]he primary object in construing a statute is to ascertain and give effect
to the intent of the Legislature.” Hammons v. W. Va. Off. of Ins. Com'r, 775 S.E.2d 458, 464 (2015)
(quoting Syl. Pt. 1, Smith v. State Workmen's Comp. Com'r, 219 S.E.2d 361 (1975)). This analysis
must begin with the plain language of the statute. Ancient Energy, Ltd. v. Ferguson, 806 S.E.2d
154, 157 (2017). If the plain language is unambiguous, no further interpretation is necessary. Id.;
Syl. Pt. 2, Crockett v. Andrews, 172 S.E.2d 384 (1970) (“Where the language of a statute is free
from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.”);
Syl. Pt. 3, Francis O. Day Co. v. Dir., Div. of Env’t Prot. of W. Va. Dep’t of Com., Lab. & Env’t
Res., 443 S.E.2d 602 (1994) (“Where the language of a statute is clear and without ambiguity the
plain meaning is to be accepted without resorting to the rules of interpretation.”). As the court held
in Hereford v. Meek, 52 S.E.2d 740 (1949), “[a] statute is open to construction only where the
language used requires interpretation because of ambiguity which renders it susceptible of two or
more constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning.”
The Supreme Court of Appeals of West Virginia in State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 461 S.E.2d 516 (1995), upheld the notion that the WVCCPA must be
construed liberally to accomplish its legislative purpose of protecting consumers from unfair,
illegal, or deceptive acts or practices. However, while courts are guided by the court in McGraw,
construction of the WVCCPA in a liberal manner can only be done with provisions of the statute
that suggest ambiguity. Otherwise, the statute must be enforced according to its plain meaning.
State ex rel. Frazier v. Meadows, 454 S.E.2d 65, 68–69 (1994).
Here, W. Va. Code § 46A-2-128(e) states the appropriate avenue to provide effective notice
to the debt collector. 	The notice must be sent to the debt collector’s registered agent, if one is
identified at the office of the Secretary of State. 	In conforming this provision with the plain
meaning of the text, there is simply no other way to interpret the instruction on providing notice.
The legislature did not use ambiguous terms or punctuation marks or leave open any room for
interpretation. Without notice sent to the registered agent, the notice is simply ineffective.
It is undisputed that the Plaintiffs did not send the representation notice to the Defendant’s
registered agent until May 6, 2024, which was not received by the Defendant until May 20, 2024.
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Rather, the Plaintiffs mailed the initial notices of representation to Citibank’s principal place of
business and an address listed on Ms. Crow’s credit report. 	The Plaintiffs contend that they
searched the Secretary of State’s website and could not locate the registered agent. 	However,
Defendant has provided evidence demonstrating that its registered agent was, in fact, listed and
publicly accessible.2 The Plaintiffs even point to the fact that the Defendant listed its registered
agent by stating that “[…] under the Secretary of State’s Business and Licensing webpage, […],
Citibank has an entry that lists its agent for the service of process.” Pls.’ Mot. For Summ. J. at 3.
There is no dispute that the Defendant’s registered agent was identified by the Defendant at the
West Virginia Secretary of State on the West Virginia Secretary of State Business Organization
Search. Because the Plaintiffs did not comply with the statutory requirements sending notice to
the registered agent and now knowing the registered agent was properly listed on the West Virginia
Secretary of State’s website, the notice was ineffective, and the Defendant’s subsequent
communications did not violate the WVCCPA. In fact, upon proper service to the registered agent,
the Defendant ceased contact with Ms. Crow.
With this determination, all material facts are resolved as a matter of law as to Count I of
the Complaint. A court has the authority to grant summary judgment sua sponte in favor of the
nonmoving party when no genuine issue of material fact exists and the nonmoving party is entitled
to judgment as a matter of law. Pancakes, Biscuits & More, LLC v. Pendleton Cnty. Comm'n, 996
F. Supp. 2d 438, 444 (N.D.W. Va. 2014). Here, no factual dispute remains regarding whether the
Defendant’s registered agent was listed on the West Virginia Secretary of State’s website and
whether the Defendant received proper notice sent to its registered agent. The Plaintiffs failed to
comply with the explicit requirements of W. Va. Code § 46A-2-128(e) in sending notice to the
Defendant’s registered agent. 	The statutory language is unambiguous and must be strictly
construed. As such, no violation occurred as a matter of law. Therefore, summary judgment in
favor of the Defendant is warranted as to Count I of the Complaint.
IV. 	CONCLUSION
For the foregoing reasons, the Court finds it appropriate to deny the Plaintiffs’ Motion for
Summary Judgment and grant summary judgment, as to Count I of the Complaint, in favor of the
2 While the Court initially denied the Defendant’s Motion to Dismiss based on the Plaintiffs’ plausible causes of
action, there was a question of fact as to whether the Defendant’s registered agent was listed on the West Virginia
Secretary of State’s website. This question of fact is now undisputed – the Defendant’s registered agent was in fact
listed on the Secretary of State’s website.
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Defendant. Consistent with Fed. R. Civ. P. 58, made applicable by Fed. R. Bankr. P. 7058, the
Court will enter an order stating as much.
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