In American Express v. Calvert: Circuit Court Preston Co., Case No. 14-C-166 Of Counsel, Abbie Dunn Jr. represented Bailey & Wyant in a case that stems from a lawsuit filed by American Express (Amex) against its cardholder for breach of contract for not paying the monthly credit card payments according to the  member's card holder agreement. Amex filed suit against Defendant and Defendant then filed a counter-claim against AMEX alleging primarily that it engaged in unlawful debt collection by: 1) placing excessive calls to Defendant after she had clearly communicated to it that she had lost her job and the financial ability to pay the debt, in violation of West Virginia Code 46A-2-125(d); and, 2) that it violated Code Section 128(e) one time by placing a call to her after she had notified it that she had retained counsel. Factually, Amex had called Defendant on only a limited number of occasions about the debt before turning the debt over to an outside law firm to then collect the debt by both calling the debtor and then initiating a law suit.   The Defendant also called AMEX and the outside law firm on a number of occasions to discuss the status of the debt, options for repayment and her financial status at the time.  

Prior to trial, Amex was granted summary judgment on the balance of the debt owed: $19,951.03 under its claim of breach of contract against Defendant.  Amex admitted that one violation of 46A-2-128(e) occurred; and a two-day bench trial was held on Defendant's counterclaim. 

 

Defendant's primary argument in this case against Amex was that because she had informed both it and the outside law firm hired by Amex to subsequently collect the debt: that she had lost her job: could not pay the minimum monthly payment at that time; and that she would update it (them) whenever she was later employed and able to pay the debt; that any subsequent attempts to collect the debt should be deemed to be harassment by the Court and in violation of Section 125(d).   Factually, Defendant contended that she received numerous calls from AMEX for months before the assignment of the debt to the outside agency; and, that while she never specifically demanded that the collection calls cease in her phone conversations she initiated with AMEX and the law firm; that her comments about her inability to pay the debt should have been interpreted as a cease and desist further attempts to collect the debt via phone; i.e., that there was no legitimate business reason to continue to call her to collect the debt.

 

The trial Court in Preston Co., Judge Miller, determined that Plaintiff's testimony concerning the number of calls alleged to have been made by AMEX before the account was sent outside, 6-10 calls a day, was not supported by the evidence. The Court also determined factually that Defendant never demanded that the collection calls cease. The Court concluded that Defendant did not meet her burden of proof to establish that the outside law firm's placement of 98 calls between July, 2014 and February, 2015, did not support Defendant's allegation that AMEX or its agent intended to harass her by the placement of "continuous" or "repeated" phone calls as evidence of the intent to oppress her into paying the debt. The Court specifically stated that "none of the conversations were harassing or otherwise mean-spirited, and the recordings of the calls the Court heard show that the representatives of both AMEX and the outside law firm acted professionally. The trial Court concluded as a matter of law that neither AMEX nor the outside law firm retained by AMEX committed a violation of Code Section 46A-2-125(d) on the basis of the number of calls made over time; the Court concluded that the calls were made with a legitimate business purpose in order to maintain contact with Plaintiff about the status of her financial situation and the initiation of the lawsuit.   In this case, AMEX argued that the 2015 amendments to the statute, and specifically the quantitative standards set by the legislature in Section 125(d) for the number of calls a debt collector or creditor can make to a debtor per week, should have been applied retroactively to the facts of this case. The Court, will declining to apply the amendment to the facts of the case, indicated that the quantitative standards for the number of calls permissible (30 calls per week and 10 actual conversations per week) would be deemed "instructive" and supported the Court's conclusion of law in the case.

 

The Court held that neither AMEX nor its outside law firm retained to collect the debt violated Section 125(d); that Defendant did produce evidence of one violation of Section 128(e); that the statutory penalty for this violation was to be assessed at the statutory minimum of $483.25; and that this award to the Defendant was simply to be applied as an offset to the award to AMEX of $19,951.03; thereby upholding the previous award in favor of AMEX and not invalidating the underlying debt as requested by Defendant. Finally, the Court did not award Defendant attorney fees for the one established violation of the Act.