                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                    FILED
David Burdette,                                                                February 17, 2017
Plaintiff Below, Petitioner                                                        RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
vs) No. 16-0342 (Kanawha County 15-C-1970)

Shirley Skeens,

Defendant Below, Respondent



                               MEMORANDUM DECISION
       Petitioner David Burdette, pro se, appeals the March 7, 2016, final order of the Circuit
Court of Kanawha County dismissing, without prejudice, his civil action against Respondent
Shirley Skeens. Respondent did not file a response.1

        The facts and legal arguments are adequately presented, and the decisional process would
not be significantly aided by oral argument. This case satisfies the “limited circumstances”
requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a
memorandum decision rather than an opinion. For the reasons expressed below, the decision of the
circuit court is reversed and this case is remanded for further proceedings consistent with this
memorandum decision.

       On May 27, 2011, the parties entered into an agreement, pursuant to which petitioner
loaned respondent $35,174.25, at 12% interest, in exchange for a lien on respondent’s home
located at 545 18th Street, Dunbar, West Virginia, as collateral. The parties agreed that respondent
would make monthly payments of $360 in 120 installments to repay the loan beginning on June
25, 2011, and ending on June 25, 2021.


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         On May 3, 2016, this Court entered a scheduling order directing respondent to file a
response by August 22, 2016. Despite this Court’s order, respondent did not file a response.
Pursuant to Rule 10(d) of the West Virginia Rules of Appellate Procedure, if a respondent fails to
respond to an assignment of error, this Court will assume that the respondent agrees with
petitioner’s view of the issue. However, our decision to reverse the circuit court’s order in this case
is not solely based on respondent’s failure to file a response.


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        On November 3, 2015, petitioner filed a complaint alleging that respondent defaulted on
the loan after making only “a few payments.” Petitioner sought to foreclose on respondent’s home
based on the lien he had for the amount of the loan pursuant to their agreement. On November 20,
2015, respondent filed an answer denying petitioner’s allegation that she defaulted on the loan.
Respondent asserted that she made payments on the loan, to the best of her ability, until she lost
contact with petitioner and the bank account into which she was making the payments was closed.

        In a scheduling order entered on January 26, 2016, the circuit court set a pretrial conference
for February 25, 2016. At that conference, petitioner conceded that he failed to provide respondent
with a notice of default prior to the commencement of the instant civil action. Accordingly, the
circuit court dismissed petitioner’s action pursuant to the West Virginia Consumer Credit and
Protection Act (“WVCCPA”), West Virginia Code §§ 46A-1-101 through 46A-8-102. More
specifically, West Virginia Code § 46A-2-106 provides that “a creditor may not . . . commence any
action or demand or take possession of collateral on account of default until ten days after notice
has been given to the consumer of his or her right to cure such default.” Id. The circuit court
entered its final order dismissing the action on March 7, 2016, and ruled that the dismissal was
without prejudice.

       Petitioner now appeals the circuit court’s March 7, 2016, order dismissing his action. We
review a circuit court’s dismissal of petitioner’s action de novo. See Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).

        On appeal, petitioner asserts that the decision of the circuit court was erroneous and that he
should be allowed to continue his foreclosure action against respondent’s home. We agree and find
that the circuit court was premature in determining that the WVCCPA applies to this case for three
reasons. First, except where the parties agree otherwise, the WVCCPA does not apply to
mortgages which are governed by Chapter 38, Article 1 of the West Virginia Code regarding trust
deeds. Second, petitioner made no concession at the pretrial conference that he was a person
“regularly engaged in the business of making loans.” W.Va. Code § 46A-1-102(15) (setting forth
definition of “consumer loan”); see also Hafer v. Skinner, 208 W.Va. 689, 693, 542 S.E.2d 852,
856 (2000) (finding that WVCCPA applies to only consumer loans). Third, it is an open question
whether a person attempting to collect on a debt owed to him (and not to a third party) qualifies as
a “debt collector” pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 United States
Code §§ 1692 through 1692p. See Henson v. Santander Consumer USA, Inc., 817 F.3d 131,
133-34 (4th Cir. 2016) (affirming dismissal of suit where allegations in complaint were insufficient
to establish that consumer finance company, which bought loans in default, was “debt collector”
under FDCPA), cert. granted, No. 16-349, 2017 WL 125669 (U.S. Jan. 13, 2017); see also Sheriff
v. Gillie, 136 S.Ct. 1594, 1598 (2016) (quoting 15 U.S.C. § 1692a(6)) (noting that FDCPA
generally governs only “debt collector[s]”). According to petitioner’s complaint, he is not
regularly engaged in the business of making loans, but is attempting to collect on a debt owed to
him. Therefore, we conclude that the circuit court erred in dismissing petitioner’s action against
respondent at this stage of the proceedings.



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       For the foregoing reasons, we reverse the circuit court’s March 7, 2016, final order
dismissing petitioner’s action and remand this case for further proceedings consistent with this
memorandum decision.

                                                                      Reversed and Remanded.

ISSUED: February 17, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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