Wayne and Dorthy Miller v. Clear Mountain Bank ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Wayne Miller and Dorothy Miller, FILED
Plaintiffs Below, Petitioners March 29, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 11-1430 (Preston County 11-C-11 and 11-C-116) OF WEST VIRGINIA
Clear Mountain Bank, Inc. and Trustee Keith Pappas,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Wayne and Dorothy Miller appeal the “Order Granting Summary Judgment”
entered by the Circuit Court of Preston County on September 14, 2011. Petitioners are
represented by Richard Wehner. Respondent Clear Mountain Bank, Inc. is represented by David
M. Thomas and Jacob A. Manning, while Respondent Keith J. Pappas is an attorney who appears
pro se. The respondents filed a joint response brief.
This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The underlying civil action concerned three loans extended to one or both petitioners by
Respondent Clear Mountain Bank. Petitioners asserted that the bank and Respondent Pappas, as
trustee, violated the West Virginia Consumer Credit and Protection Act (“CCPA”) when
foreclosing on certain collateral. The circuit court entered summary judgment for respondents,
finding as a matter of law that the CCPA did not apply because these were commercial loans and
the CCPA only applies to consumer transactions. Alternatively, the circuit court found that even
if the CCPA does apply, petitioners have not alleged a cause of action for violation of the CCPA
in light of the express language of the loan documents and the undisputed fact that petitioners
failed to pay their indebtedness.
Petitioners raise a sole assignment of error in this appeal: “[w]hether the circuit court
erred in granting summary judgment to defendants on the issue of the applicability of the West
Virginia Consumer Credit Protection Act regarding the loan of 2008 which had many consumer
features including the fact that respondent bank characterized this loan as a consumer loan.”
Upon appeal of a summary judgment order, we apply a de novo standard of review. Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
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Petitioners limit their appeal to issues surrounding the 2008 loan, which was the first of
the three loans at issue below. This loan was for the principal amount of $350,112. Petitioners
assert that this loan was taken out to pay expenses for their farm, including for the training of
horses, and to save from foreclosure a different farm owned by a family member.
In their Amended Complaint, petitioners asserted claims under two sections of the
CCPA: West Virginia Code § 46A-2-127 and § 46A-2-128. Section 127 provides, inter alia,
“[n]o debt collector shall use any fraudulent, deceptive or misleading representation or means to
collect or attempt to collect claims[.]” Section 128 provides, inter alia, “[n]o debt collector shall
use unfair or unconscionable means to collect or attempt to collect any claim.” Moreover, West
Virginia Code §46A-2-122 provides,
For the purposes of . . . sections . . . one hundred twenty-seven, [and] one hundred
twenty-eight . . . the following terms shall have the following meanings: . . .
(b) “Claim” means any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance or
service which is the subject of the transaction is primarily for personal, family
or household purposes, whether or not such obligation has been reduced to
judgment.
(Emphasis added.) Upon a careful review of the CCPA and the parties’ arguments, we agree that
summary judgment was appropriate for respondents on this issue. Farm expenses and the
purchase of a farm at a foreclosure sale do not constitute transactions that are “primarily for
personal, family or household purposes.” We note that in Syllabus Point 1 of Morris v. Marshall,
172 W.Va. 405, 305 S.E.2d 581 (1983), we held that “[l]oans made for commercial purposes are
not ‘consumer loans’ within the purview of the West Virginia Consumer Credit and Protection
Act.”
Petitioners point to West Virginia Code § 46A-1-102(15) that defines “consumer loan” as
a loan in which “[t]he debt is incurred primarily for a personal, family, household or
agricultural purpose[.]”1 (Emphasis added.) Petitioners argue that the 2008 loan was primarily
for agricultural purposes, thus it was a “consumer loan” and is subject to the CCPA. Petitioners
state that the 2008 loan documents characterized this as a consumer loan.
However, whether this loan satisfies the definition of “consumer loan” does not control
the issue of whether petitioners may obtain relief under West Virginia Code § 46A-2-127 and §
46A-2-128. The legislature has expressly defined the type of “claim” that is subject to sections
127 and 128 more narrowly than it has defined the term “consumer loan.” “Agricultural
purposes” is simply not included in the definition of a “claim” that is subject to these sections.
Accordingly, under the plain statutory language, and in light of the specific allegations in the
Complaint, petitioners’ argument fails.
Finally, on May 10, 2012, Respondent Clear Mountain Bank filed a “Motion for Leave to
File a Supplemental Appendix and Tax Costs.” The bank argued that petitioners failed to include
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Other aspects of the definition of “consumer loan” are not pertinent to this case.
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in the appendix record documents that were necessary for consideration of the appeal and which
petitioners had agreed to include. By order of June 19, 2012, we granted the bank’s motion and
ordered the filing of a supplemental appendix submitted by the bank. After fully considering the
issues in this appeal, we conclude that the documents in the supplemental appendix were relevant
and necessary for consideration of the issues on appeal and therefore should have been included
in the petitioners’ appendix. Accordingly, pursuant to Rule 24 of the Rules of Appellate
Procedure, the Clerk is directed to prepare and certify an itemized statement of costs incurred by
the bank for the submission of the supplemental appendix, which costs shall be taxed to
petitioners and included in the mandate.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 29, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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