James R. and Jamila J. Fleet v. Webber Springs Owners Assoc. ( 2015 )

No. 14-0637 - James R. Fleet, Jamila J. Fleet, and James Lampley v. Webber Springs
Owners Association, Inc.,
FILED
April 23, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOUGHRY, Justice, concurring:
Homeowners associations are typically run by a few resident volunteers who
serve as officers or on boards of such associations and who act to ensure that the covenants
and restrictions of the housing development are being met, including the payment of
association assessments. The funds generated by those assessments are then used by the
association to accomplish vital tasks that inure to the benefit of all homeowner members,
such as road maintenance, as in the case at bar. While the unfair debt collection provisions
of the West Virginia Consumer Credit and Protection Act (“WVCCPA”) set forth a broad
definition of the term “claim,”1 the unintended and undesirable consequences that may result
from the application of the WVCCPA to a homeowners association’s assessments, and the
association’s related efforts to collect those fees, suggest that Legislative attention may be
needed.
Homeowners associations, which exist for the mutual benefit of all
homeowners, are typically run by homeowners who either volunteer or are elected to serve
as officers of the organization. The assessments collected by those associations establish a
1
West Virginia Code § 46A-2-122 (2006).
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fund necessary for the maintenance of the housing development’s common areas.
Importantly, such fees do not in any respect serve as a profit-generator. Indeed, a
homeowners association’s efforts to collect those fees arise out of the obligation to ensure
that the maintenance of the community is accomplished in a manner that is equally borne by
all those who benefit therefrom. Consequently, a construction of the unfair debt collection
provisions of the WVCCPA that permits homeowners, who benefit daily from the
maintenance efforts of the homeowners association, to not only selfishly refuse to pay their
assessments, but then to generate a lawsuit under the WVCCPA as a result of the
association’s efforts to collect the delinquent assessments, is simply untenable in my view.2
Consider the practical effect of such an application of the WVCCPA. A
dilatory homeowner refuses to pay his or her association fees, resulting in collection efforts
by the association. The homeowner then initiates a claim against the association and its
volunteer officers based on alleged violations of the WVCCPA. The association’s officers
believed they were fulfilling their obligation to all homeowners through their efforts to
secure payment of the assessments by the delinquent homeowner, who was enjoying the
amenities and maintenance of the development made possible by the responsible, assessment­
2
I recognize that there may be situations where a homeowner refuses to pay his or her
assessment as a form of protest against his or her homeowners association and/or its officers
in particular for alleged misconduct, misfeasance, or similar reason. Such protest may be
better expressed during the next election of the association’s officers and could certainly be
raised in defense to any actions by the association to collect the delinquent assessments.
2
paying homeowners. Even if unsuccessful, the delinquent homeowner will have caused the
association to incur legal fees and costs in defending against the action for which it may or
may not have insurance coverage. Where it does not, or where coverage is insufficient, those
expenses will likely result in a special assessment.3 Therefore, not only has the delinquent
homeowner taken advantage of the assessments paid by his fellow homeowners, but he has
now increased their fee burden. Surely, this was not the purpose behind the WVCCPA,
which is plainly designed to target commercial, profit-generating entities.
Certain federal courts, including the Fourth Circuit, have construed the federal
Fair Debt Collection Practices Act (“FDCPA”) to require a debt to be a “consumer debt.”
See Mabe v. G.C. Services Limited Partnership, 32 F.3d 86, 88 (4th Cir.1994) (finding that
child support obligation was not a “debt” under the FDCPA because it was not “incurred to
receive consumer goods or services.”); Bloom v. I.C. Sys., Inc., 972 F.2d 1067, 1068 (9th
Cir.1992) (holding that the FDCPA applies only to “consumer debts” incurred “primarily for
personal, family, or household purposes”); Nance v. Petty, Livingston, Dawson, & Devening,
881 F. Supp. 223, 225 (W.D. Va. 1994) (refusing to find homeowners association fee a
3
Even if the delinquent homeowner’s claim was brought in bad faith, the homeowners
association may or may not be able to recover the attorney’s fees it incurred in defending
against the claim. See W.Va. Code § 46A-5-104 (2006) (“On a finding by the court that a
claim brought under this chapter applying to . . . any prohibited debt collection practice was
brought in bad faith and for the purposes of harassment, the court may award to the defendant
reasonable attorney fees.” (emphasis added.)).
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“debt” under FDCPA inasmuch it was a “nonconsumer” debt). The case at bar illustrates the
wisdom of this restriction since non-consumer “debts” usually implicate the acts and
practices of non-commercial entities, such as homeowners associations. The deterrent
purposes of the unfair debt collection provisions of the WVCCPA are not reasonably
reflected in the acts of such entities.
Given the broad language of certain definitions contained within the unfair debt
collection provisions of the WVCCPA, I begrudgingly concur in the majority’s decision that
those provisions apply to a homeowners association’s attempts to collect delinquent
assessments. However, I urge the Legislature to review the policy considerations behind the
applicability of the WVCCPA to such assessments and other similar non-consumer debts.4
4
I also concur in the majority’s ruling that consensual common law liens against real
property are authorized under West Virginia Code §§ 38-16-201 and -202(a).
4