Pub. 2 2011 Issue 2

summer 2011 7 “At the end of the day, we all want one thing – to make certain our customers are able to purchase the home of their dreams.” Resourceful. Responsive. Reliable. Do business with someone who thinks like you. www.CBBonline.com 804.239.0452 In addition to collection calls and letters being violations, plaintiffs have taken the position that a creditor’s monthly statements are violations of section 2-128(e) as statements are communications in an attempt to collect a debt and are sent directly to the debtor. There is no exception in section 2-128(e) for monthly statements. However, under federal law 3 and section 2-114 of the WVCCPA, a creditor is required to send periodic statements to the debtor. Plain- tiffs’ response is that the statements should be sent to their counsel because there is a blanket prohibition against communicating directly with the debtor. In at least one instance, a state court judge has agreed that the creditor is required to send monthly statements under federal law and stated that it had at least a colorable argu- ment that sending monthly statements did not violate Next quarter’s article will focus on an analysis of defenses, damages, and attorney’s fees and costs available under theWVCCPA. n 1 Section 2-125(d) prohibits a collector from “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at times known to be inconvenient, with the intent to annoy, abuse, oppress or threaten any person at the called number.” W. Va. Code § 46A-2-125(d). Under this section, plaintiffs must prove that a debt collector caused the phone to ring with intent to annoy and/or oppress the plaintiff. Intent is a state of mind. Black’s Law Dictionary 813 (7th ed. 1999). Intent is a question of fact for the jury. Syl. pt. 5, Farmers Mut. Ins. Co. v. Tucker, 213 W. Va. 16, 576 S.E.2d 261 (2002). It is a question of fact because it depends upon the circumstances of the situation. Nicholas Loan & Mtg., Inc. v. W. Va. Coal Co-Op, Inc., 209 W. Va. 302, 547 S.E.2d 234, 240 (2001). 2 W. Va. Code § 46A-2-128(e). 3 Pursuant to the Truth in Lending Act, a creditor is required to send to a debtor a statement at the end of each billing cycle in which “there is an outstanding balance in that account or with respect to which a finance charge is imposed.” 15 U.S.C.A. § 1637(b). Angela L. Beblo is a Senior Attorney at Spilman Thomas & Battle, PLLC. Her primary areas of practice are consumer finance, litigation and mine safety law. Contact Angela Beblo at 304.340.3852. Patrick R. Barry is an Associate at Spilman whose practice focuses on consumer credit and protection litigation, labor and employment, and general civil defense litigation. Contact Patrick Barry at 304.340.3884.