No. 12-0150 -         Tribeca Lending Corporation v. James E. McCormick
                                                                                 FILED
                                                                            June 18, 2013
                                                                            released at 3:00 p.m.
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Davis, Justice, concurring, in part, and dissenting, in part:

              I agree wholeheartedly with the majority’s resolution of the first certified

question. The majority is correct in concluding that the statute of limitations provided by

W. Va. Code § 38-1-4a (2006) (Repl. Vol. 2011) simply does not apply to the facts of this

case. However, I part ways with my brethren with respect to the majority’s disposition of the

second certified question. I absolutely cannot agree with the majority’s determination that

the counterclaims asserted by Mr. McCormick in response to Tribeca’s first and second

unlawful detainer actions were untimely.



              In this case, Tribeca filed an unlawful detainer action against Mr. McCormick

shortly after it obtained title to the subject property through the foreclosure sale thereon. Mr.

McCormick responded and asserted counterclaims similar to those at issue in the instant

proceeding. Tribeca then failed to prosecute its case, and, as a result, the circuit court

dismissed Tribeca’s first unlawful detainer action due to inactivity. Under the majority’s

holding in new Syllabus point 6, it would seem that Mr. McCormick would have been

permitted to assert his consumer counterclaims in response to Tribeca’s first unlawful

detainer action without fearing the wrath of the stringent temporal requirements of W. Va.


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Code § 46A-5-101(1) (1996) (Repl. Vol. 2006). Unfortunately for Mr. McCormick, his saga

does not end here.



              Although it continued to sit on its laurels for another few years, Tribeca

resurrected its unlawful detainer action like a proverbial phoenix in 2011, nearly three and

one-half years after it obtained title to the subject property and nearly two years after it

allowed its first unlawful detainer action to be dismissed because it failed to see it through

to its fruition. To add insult to injury, when Tribeca filed its second unlawful detainer action

in 2011, it added an attachment to this Court’s standard form for unlawful detainer

complaints, stating:

                      Insofar as this complaint may be interpreted by a Court
              of competent jurisdiction that the undersigned is attempting to
              collect a debt on behalf of the Plaintiff [Tribeca], you are
              informed that any information given by you to the undersigned
              is information which may be passed on to the Plaintiff and may
              be used for the purpose of collecting a debt. You are further
              advised that the undersigned may be considered a debt collector
              under the law.

Now, Tribeca, who added this language of its own accord, has the audacity to claim that Mr.

McCormick should be precluded from asserting the same counterclaims in response to

Tribeca’s same unlawful detainer claims because now, after the passage of so much time,

such counterclaims are untimely. Given that the inclusion of Tribeca’s additional language

in its complaint sufficiently placed Mr. McCormick on notice of the existence of a debt

collection action and in light of the protections afforded to consumers in such proceedings,

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I vehemently dissent to the majority’s disposition of the second certified question to bar Mr.

McCormick’s consumer counterclaims.           Rather, Mr. McCormick’s counterclaims are

governed by W. Va. Code § 46A-5-102 (1974) (Repl. Vol. 2006), which provides:

                    Rights granted by this chapter may be asserted as a
              defense, setoff or counterclaim to an action against a consumer
              without regard to any limitation of actions.

(Emphasis added). Accord Syl. pt. 6, Chrysler Credit Corp. v. Copley, 189 W. Va. 90, 428

S.E.2d 313 (1993) (“Where a consumer is sued for the balance due on a consumer

transaction, any asserted defense, setoff, or counterclaim available under the Consumer

Credit Protection Act, W. Va. Code, 46A-2-101, et seq., may be asserted without regard to

any limitation of actions under W. Va. Code, 46A-5-102 (1974).”). Under the statute of

limitations grace period provided by W. Va. Code § 46A-5-102, it is clear that Mr.

McCormick timely asserted his consumer counterclaims in response to Tribeca’s second

unlawful detainer action.



                                     A. Notice Pleading

              The plain language of W. Va. Code § 46A-5-102 requires an action be filed

against a consumer before the counterclaims statute of limitations grace becomes effective.

Be that as it may, this statute does not limit or specify the exact type of action in response to

which the consumer may assert his/her counterclaims. Thus, it is apparent that any “action

against a consumer,” W. Va. Code § 46A-5-102, would be sufficient to activate the statute


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of limitations grace provided by that statute. Here, by its own inclusion of words extraneous

to this Court’s form complaint for unlawful detainer actions, Tribeca has indicated its

intention (1) to sue Mr. McCormick for unlawful detainer and (2) to construe such action also

as a debt collection action. To the extent those are the claims that Tribeca, itself, has asserted

in its complaint, the Court is not at liberty to pick and choose which portions of the plaintiff’s

complaint will be enforced and to arbitrarily disregard those portions that appear to be

incongruous. This jurisdiction subscribes to the concept of notice pleading, and, to the extent

that Tribeca has included debt collection language in its complaint, the inclusion of this

language effectively puts Mr. McCormick on notice that Tribeca considers it to have an

unresolved debt collection claim against him. See Forshey v. Jackson, 222 W. Va. 743, 750,

671 S.E.2d 748, 755 (2008) (“‘“Complaints are to be read liberally as required by the notice

pleading theory underlying the West Virginia Rules of Civil Procedure.”’ State ex rel. Smith

v. Kermit Lumber & Pressure Treating Co., 200 W. Va. 221, 488 S.E.2d 901 (1997) (quoting

State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. [770,] 776, 461

S.E.2d [516,] 522 [(1995)]).”). Accord Whorton v. Malone, 209 W. Va. 384, 390 n.6, 549

S.E.2d 57, 63 n.6 (2001). See also Bowers v. Wurzburg, 205 W. Va. 450, 462, 519 S.E.2d

148, 160 (1999) (commenting that, “[g]enerally, the allegations contained in a complaint are

to consist of ‘a short and plain statement of the claim showing that the pleader is entitled to

relief,’ W. Va. R. Civ. P. 8(a)(1), in order to place a potential defendant on notice as to the

nature of the claim(s) asserted against him/her” and noting that, “[i]n construing the


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adequacy of a complaint, the allegations contained therein are viewed liberally in favor of

the plaintiff” (citations omitted)). Simply stated, the Court should not ignore those words

that Tribeca, itself, has included in its complaint even if such words are not customarily used

in the assertion of an unlawful detainer action.



                     B. Timely Assertion of Consumer Counterclaims

              Moreover, the statute of limitations relied upon by the circuit court, W. Va.

Code § 46A-5-101(1) (1996) (Repl. Vol. 2006) does not govern Mr. McCormick’s

counterclaims because it presupposes that he initiated his claims in the first instance. As the

majority duly has noted, Mr. McCormick has not instituted any proceedings against Tribeca

in the first instance. Instead, Mr. McCormick merely has asserted the subject counterclaims

in response to the unlawful detainer/debt collection action filed by Tribeca. As such, W. Va.

Code § 46A-5-102 (1974) (Repl. Vol. 2006) provides the statute of limitations that is

applicable to the facts of this case.



              In its opinion, the majority has recognized that W. Va. Code § 46A-5-101(1)

(1996) (Repl. Vol. 2006) provides the time periods for a consumer to file a cause of action

against a creditor to assert violations of the West Virginia Consumer Credit and Protection

Act. The first subsection of W. Va. Code § 46A-5-101, which forms the basis for the second

certified question, directs:


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                      (1) If a creditor has violated the provisions of this chapter
              applying to collection of excess charges, security in sales and
              leases, disclosure with respect to consumer leases, receipts,
              statements of account and evidences of payment, limitations on
              default charges, assignment of earnings, authorizations to
              confess judgment, illegal, fraudulent or unconscionable conduct,
              any prohibited debt collection practice, or restrictions on interest
              in land as security, assignment of earnings to regulated
              consumer lender, security agreement on household goods for
              benefit of regulated consumer lender, and renegotiation by
              regulated consumer lender of loan discharged in bankruptcy, the
              consumer has a cause of action to recover actual damages and
              in addition a right in an action to recover from the person
              violating this chapter a penalty in an amount determined by the
              court not less than one hundred dollars nor more than one
              thousand dollars. With respect to violations arising from
              consumer credit sales or consumer loans made pursuant to
              revolving charge accounts or revolving loan accounts, or from
              sales as defined in article six of this chapter, no action pursuant
              to this subsection may be brought more than four years after the
              violations occurred. With respect to violations arising from
              other consumer credit sales or consumer loans, no action
              pursuant to this subsection may be brought more than one year
              after the due date of the last scheduled payment of the
              agreement.

(Emphasis added).



              W. Va. Code § 46A-5-101(1) does not, however, address the facts of the case

sub judice to define the time period within which a consumer is required to bring a

counterclaim asserting his/her rights under the West Virginia Consumer Credit and

Protection Act, and, in fact, a more specific statute, W. Va. Code § 46A-5-102 (1974) (Repl.

Vol. 2006), supplies such information. See generally Syl. pt. 1, UMWA by Trumka v.


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Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984) (“The general rule of statutory construction

requires that a specific statute be given precedence over a general statute relating to the same

subject matter where the two cannot be reconciled.”).



              Pursuant to W. Va. Code § 46A-5-102, a consumer may assert counterclaims

arising under the West Virginia Consumer Credit and Protection Act at any time: “Rights

granted by this chapter may be asserted as a defense, setoff or counterclaim to an action

against a consumer without regard to any limitation of actions.” (Emphasis added). This

Court has interpreted this language as meaning that a consumer’s counterclaims asserting

such rights are not barred by statutes of limitations that might otherwise be applicable to such

claims but for the operation of W. Va. Code § 46A-5-102:

                     Where a consumer is sued for the balance due on a
              consumer transaction, any asserted defense, setoff, or
              counterclaim available under the Consumer Credit Protection
              Act, W. Va. Code, 46A-2-101, et seq., may be asserted without
              regard to any limitation of actions under W. Va. Code, 46A-5­
              102 (1974).

Syl. pt. 6, Chrysler Credit Corp. v. Copley, 189 W. Va. 90, 428 S.E.2d 313 (1993).



              Based upon its reference to W. Va. Code § 46A-5-101(1), the second question

certified to this Court presupposes that Mr. McCormick has filed a cause of action against

Tribeca in the first instance. However, those are not the facts of the instant proceeding.

Rather, Tribeca filed its unlawful detainer action against Mr. McCormick, and Mr.

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McCormick asserted his counterclaims against Tribeca, alleging that Tribeca had violated

the West Virginia Consumer Credit and Protection Act, in response to Tribeca’s lawsuit. Mr.

McCormick is the defendant in these proceedings; he is not a plaintiff consumer who has

filed a lawsuit as contemplated by W. Va. Code § 46A-5-101(1).



              The procedural posture of the case sub judice is a bit unusual because Mr.

McCormick has asserted his consumer counterclaims in response to Tribeca’s unlawful

detainer action. Ordinarily, an unlawful detainer action is simply that–an action to recover

possession of the property that has been unlawfully detained. See W. Va. Code § 55-3-1

(1923) (Repl. Vol. 2008) (describing nature of unlawful detainer action as proceeding to

recover possession of property that has been unlawfully detained or withheld from plaintiff);

Duff v. Good, 24 W. Va. 682, 685 (1884) (“The remedy by unlawful detainer is a summary

proceeding designed to protect the actual possession, whether rightful or wrongful, against

unlawful invasion and afford speedy restitution.”). See also Syl. pt. 2, in part, Wiles v.

Walker, 88 W. Va. 147, 106 S.E. 423 (1921) (“[A]n action of forcible entry and detainer

relates only to possession and does not settle or adjudicate title[.]”); Feder v. Hager, 64

W. Va. 452, 454, 63 S.E. 285, 286 (1908) (observing that unlawful detainer action “relates

only to possession, and determines only the right to possession. It does not settle or

adjudicate title.”). See generally Ratino v. Hart, 188 W. Va. 408, 424 S.E.2d 753 (1992) (per

curiam) (compiling and discussing West Virginia unlawful detainer cases).


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              In the instant proceeding, however, Tribeca added an attachment to its unlawful

detainer complaint in which it stated:

                     Insofar as this complaint may be interpreted by a Court
              of competent jurisdiction that the undersigned is attempting to
              collect a debt on behalf of the Plaintiff, you are informed that
              any information given by you to the undersigned is information
              which may be passed on to the Plaintiff and may be used for the
              purpose of collecting a debt. You are further advised that the
              undersigned may be considered a debt collector under the law.

To the extent that Tribeca has incorporated this debt collection language in its complaint,

Tribeca’s complaint may be construed as also attempting to collect a debt from Mr.

McCormick. See, e.g., W. Va. Code § 46A-1-103(1) (1996) (Repl. Vol. 2006) (noting that

West Virginia Consumer Credit and Protection Act regulates consumer loans and establishes

remedies for violations of such provisions); W. Va. Code § 46A-5-101 (enumerating claims

consumer may assert against lender or debt collector alleging violations of West Virginia

Consumer Credit and Protection Act). Thus, Tribeca, as it has acknowledged in the

attachment to its complaint, is a debt collector in these proceedings, and Mr. McCormick is

a consumer. See W. Va. Code § 46A-2-122(d) (1996) (Repl. Vol. 2006) (defining “debt

collector” as “any person or organization engaging directly or indirectly in debt collection”);

W. Va. Code § 46A-2-122(c) (further defining “debt collection” as “any action, conduct or

practice of soliciting claims for collection or in the collection of claims owed or due or

alleged to be owed or due by a consumer”). See also W. Va. Code § 46A-1-102(12) (1996)

(Repl. Vol. 2006) (explaining that “consumer” “means a natural person who incurs debt


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pursuant to . . . a consumer loan”); W. Va. Code § 46A-2-122(a) (construing “consumer” to

mean “any natural person obligated or allegedly obligated to pay any debt”). Therefore, as

a consumer, against whom an action has been brought, Mr. McCormick asserted his

counterclaims in response to Tribeca’s complaint, and he alleged that Tribeca has violated

the West Virginia Consumer Credit and Protection Act.1



              The pivotal question remains, however, as to whether Mr. McCormick timely


              1
                I wish to reiterate that the posture of the case sub judice is extraordinarily
unusual because Tribeca, by words of its own choosing, has incorporated debt collection
language into its complaint alleging unlawful detainer. Ordinarily, a defendant to an
unlawful detainer proceeding would not be permitted to invoke the statute of limitations
grace period provided by W. Va. Code § 46A-5-102 for the assertion of a consumer’s
counterclaims because, by its very nature, an unlawful detainer action is a suit for the
recovery of possession of property and not a proceeding against a consumer regarding a
consumer transaction. Compare W. Va. Code § 55-3-1 (1923) (Repl. Vol. 2008) (describing
nature of unlawful detainer action as proceeding to recover possession of property that has
been unlawfully detained or withheld from plaintiff) and Duff v. Good, 24 W. Va. 682, 685
(1884) (“The remedy by unlawful detainer is a summary proceeding designed to protect the
actual possession, whether rightful or wrongful, against unlawful invasion and afford speedy
restitution.”) with W. Va. Code § 46A-1-103(1) (1996) (Repl. Vol. 2006) (noting that West
Virginia Consumer Credit and Protection Act regulates consumer loans and establishes
remedies for violations of such provisions); Chevy Chase Bank v. McCamant, 204 W. Va.
295, 302, 512 S.E.2d 217, 224 (1998) (per curiam) (“It appears obvious to this Court that the
purpose of the WVCCPA [West Virginia Consumer Credit and Protection Act] is to protect
consumers from unfair, unconscionable, fraudulent, and abusive practices of debt
collectors.”); and Syl. pt. 2, U.S. Life Credit Corp. v. Wilson, 171 W. Va. 538, 301 S.E.2d
169 (1982) (“The legislature in enacting the West Virginia Consumers [sic] Credit and
Protection Act, W. Va. Code, 46A–1–101, et seq., in 1974, sought to eliminate the practice
of including unconscionable terms in consumer agreements covered by the Act. To further
this purpose the legislature, by the express language of W. Va. Code, 46A–5–101(1), created
a cause of action for consumers and imposed civil liability on creditors who include
unconscionable terms that violate W. Va. Code, 46A–2–121 in consumer agreements.”).

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asserted these counterclaims against Tribeca. Therefore, I would propose reformulating the

second certified question to more accurately reflect the law and the facts that are presently

before the Court.

                      When a certified question is not framed so that this Court
              is able to fully address the law which is involved in the question,
              then this Court retains the power to reformulate questions
              certified to it under both the Uniform Certification of Questions
              of Law Act found in W. Va. Code, 51–1A–1, et seq. and W. Va.
              Code, 58–5–2 [1967], the statute relating to certified questions
              from a circuit court of this State to this Court.

Syl. pt. 3, Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993). See also W. Va. Code

§ 51-1A-4 (1996) (Repl. Vol. 2008) (“The supreme court of appeals of West Virginia may

reformulate a question certified to it.”). Accordingly, I would rephrase the second certified

question as follows:

                     What is the limitations period within which
              counterclaims may be asserted alleging violations of the West
              Virginia Consumer Credit and Protection Act, W. Va. Code
              § 46A-1-101 et seq., in response to an unlawful detainer action
              in which the plaintiff has stated that it also is attempting to
              collect a debt from the defendant?

Pursuant to the plain language of W. Va. Code § 46A-5-102 and our prior decision in Copley

interpreting this statute, it is apparent that, as a consumer against whom an action had been

brought, Mr. McCormick was permitted to assert any counterclaims arising under the West

Virginia Consumer Credit and Protection Act “without regard to any limitation of actions.”

W. Va. Code § 46A-5-102. In other words, Mr. McCormick’s consumer counterclaims are

not barred by any statute of limitations by virtue of the operation of W. Va. Code § 46A-5­

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102. Thus, I would answer the second certified question as follows: W. Va. Code § 46A-5­

102 (1974) (Repl. Vol. 2006) permits a consumer to assert counterclaims arising under the

West Virginia Consumer Credit and Protection Act “without regard to any limitation of

actions.” Accord Syl. pt. 6, Chrysler Credit Corp. v. Copley, 189 W. Va. 90, 428 S.E.2d 313

(1993). As such, the Court should have determined that Mr. McCormick timely asserted his

consumer counterclaims in response to Tribeca’s unlawful detainer/debt collection action.2



              In light of the foregoing, I respectfully concur with the majority’s resolution

of the first certified question in this case. However, I strongly dissent from the majority’s

disposition of the second certified question.




              2
               I would be remiss if I did not also address the case upon which Tribeca and
the majority rely as support for their resolution of the second certified question: Delebreau
v. Bayview Loan Servicing, LLC, 770 F. Supp. 2d 813 (S.D. W. Va. 2011), aff’d, 680 F.3d
412 (4th Cir. 2012). Despite the majority’s steadfast allegiance to this opinion as providing
guidance regarding the statute of limitations that is applicable to Mr. McCormick’s claims
in this case, a simple review of the Delebreau decision demonstrates that it is both
distinguishable from and inapplicable to the facts of the case sub judice. Delebreau involved
plaintiff consumers who had filed the subject lawsuit against their mortgage loan servicer and
had asserted claims arising under the West Virginia Consumer Credit and Protection Act.
Unlike the consumers in Delebreau, the consumer in the instant proceeding, Mr. McCormick,
did not file a lawsuit and is not a party plaintiff herein. Rather, Tribeca sued Mr.
McCormick, and he responded by filing counterclaims, not his own, independent, cause of
action. As such, the underpinnings of Delebreau are completely different from the factual
and procedural history shaping the instant controversy.

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