oh yeah oh yeah oh yea all christian telling any man are a form of business before the honorable of the united states court of appeals for the th circuit or admonish to give their attention for the court is now sitting god save the united states and this honorable court cancellation insurance product that was made as part of the purchase of a car the companies that souls defendants gas insurance products safeguard was not licensed to sell insurance none of the forms that use were proof of insurance commissioner and therefore i forbidden from collecting a premium on product plaintive therefore broad claims under article two in article six of the west virginia consumer credit protection act led to the sale of in share surance and collection of the premium because alternative forms of relief the insurance co referenced by the district court not provide any other direct mechanism to get a refund of the prep premium she also brought insurance based individual claims on the bad faith denial of her insurance claim what happened to mishandle is not an uncommon fact pattern and it's been the case where lenders at the point in which a loan is made insert improper fees and deed it is nearly impossible to leave the dealership it seems without a deal or attempting to sell some additional product to you when lenders dealers and other retailers cross the line collect fees or other amounts of money that should not be collected and should be held to account now happy to tackle the issues in your core desires but i'd like to try to get to the nub of the three issues as i see them quickly so with that mind i'd like to address article two st the court dismissed mishandles article two debt collection claims because just because she paid the premium making the courts logic from there according to the thing in admitting will simply not paid well waited some unspecified period of time to pay after  transaction she would have had a claim the standard is unworkable and is not supported by the plain language of the statute which defines a claim as being any obligation arising out of a transaction transaction being a critical term in community not only the discharge of a contract but also as set forth in a district court's opinion act or an instance of conducting business or other dealings e do not believe that you would because here in order to state a claim this is only a threshold question whether there is an actual debt collection in in progress whether you ha definition of claim it's very specific and so in your fact pattering yes arguably there could be a claim if a and that substantive conduct was met but again here what we're addressing is really just  threshold question of what is it that collector under your fact pattern i could imagine a situation in which you claim ultimately a substantive claim would exist but here's the point the point is i can give you examples and this is a prime example where an illegal fee is inserted into the making of a transaction a person pays for the fee and they should have a claim under those circumstances in a typical type of credit transaction this happens this happens and again i understand the concern i do understand the concern but trying to impose some delay of payment requirement whole gist of this that's it is the obligation to pay money to result from the transaction and the scenario and this scenario your and my facts simply is no further obligation to pay money but i think the key  it is that obligation arises from arises out of that transaction i even the formation then under the plain language of the statute you have a claim and again i guess it to the extent that there is ambiguity with respect to this statute respects this application the ambiguity should be decided in favor the consumer with the consumer is subject to an unfair deceptive act or practice they should have a claim whereas under your situation i mean if the supermarket were to do something improper the consumer should have a claim i don't know the supermarket shouldn't be protected just because the t ransaction arose out of a point of sale type of situation that's the way the consumer act works and it's always been construed to and again it's not to say and your circumstance i could imagine and sometimes it's an example of you know you can take things to their extreme where a person would ultimately have a claim under those facts but i can imagine a situation in which somebody goes to a dealership they purchase a car as part of the purchase the transaction gets crammed with improper fees or some sort of improper product and person brings a case and they should be able to bring a case under the circumstances notwithstanding the fact that they paid for the product or service upfront or maybe even a little bit after the fact and i think also too if one looks at what it means to have a deferral payment which the court held was not required to believe the court held was not required but it's not a deferral payment then what is it and what it is is  what cases are you relying on in west virginia they give the that direction on this broad investigation and the court decided a series of cases the saran decision and the perfectly blunt your beth and i understand that but the question really is we've got to glean from the west virginia cases at least what we would think that the supreme court of appeals of west virginia would do it so it's not expe fleet dan's car world where the court actually was addressing construing claims the court held that the collection activity constituted and was subject to the act this is not proposition of the defamation bocconi and this is often the issue with this consumer act we don't have a lot of authority and the court i guess the converse is true i don't have there are many cases that say we can we can glean from this that i agree your honor and that's where i believe that the analysis lies at the margin and i just follow up on that earlier when you were responding to my questions you said the reason why as i look at i wasn't trying to make myself make extra work by by bringing this claim to the consumer act the net the general provisions which is article one through arkell five which includes article two the debt collection provisions very concerned with overcharging admittedly i brought an article six claim also too because i felt that that could be a potential avenue for relief turns bringing  proceed in terms of bringing the actual claim itself article two it made perfect sense because again the statutes concerned with overcharging but with respect to the other the other two claims that are issue here particularly article six this was an error that occurred in terms of the plain language of the statute the legislature had an intention when it prepared and it and it created this act now some of the tension arises because it's a combination of two different acts it's a combination of the utricle sea and the national consumer act and they had very somewhat differing differing or competing views on what should be regulated what should be regulated now with respect to article six the legislature chose to define service to include insurance that was an intentional decision and it chose to define traitor commerce as including insurance and it chose to prohibit unfair deceptive act trade or commerce bringing insurance within the ambit of article six now there is in it there is an exclusion for the sale of insurance but that exclusion is tempered by except as otherwise provided in this chapter that's very important and that intersection is very important and that's where this tension between the you will see in the national consumer act comes into play but you have provisions and the article two provisions for we're talking about came from the national consumer act and when commenting on the difference between those two acts the national consumer act and this is rare for west virginia we usually don't have legislative history or anything but we actually have some here because we have the two model lacks in the commentary the national consumer act recognized that the you know uniform commercial code and did not include insurance and exempted it out but there was an intention with the national consumer act to put it back in and to regulate it and that's exactly what happened here and again our provisions come from i'm very concerned about these issues particularly the article two issue i'm very concerned about where the court might draw the line i'm very concerned that if the court draw the line an extensive amount of time briefing which is whether safeguard is a debt collector engaged in debt collection the courts analysis and questioning obviously is founded on this specific issue and initially to circle back to the example that was discussed concerning the purchase of groceries the judge diaz and question counsel bow in that particular instance there was no action by the grocery store that would bring this type of transaction into what would commonly be referred to in pursuance of the express language of the statute into what we would call that collection appellate cited to multiple cases  the west virginia consumer credit protection act as well as the f t c p a none of those cases in any way shape or form support the position that helen has taken concerning the article two claims that are before the court purposes of the article two claims however every single case cited under the west virginia consumer credit protection act as well as the at the c p a requires something bore than a simple  each case whether to discuss this on or check a failure to pay his homeowners association dues or utility payments require some additional conduct and that's what brought it in with the gambit of these respective statute that simply does not present here what happened here was a simple one time payment that was made for purchase of the sedar gap and in them there was no additional conduct signed safeguard to try to collect any sum from this angle has come in here and there was no additional contact from safeguard until such time as the claim was made approximately five years five years after this after this transaction to pla discussing some of the cases briefly the bass decision that's been heavily discussed within the brief already been bought to dishonored check this is an f t c p a claim and so that check being dishonored triggered the collection efforts and that then trigger credit protection act was an action against homeowners to force liens for a jolie assessment again if if the parties had undertaken the original agreement there would have been no action under the west virginia consumer credit protection  and under the definition of consumer what is required under these circumstances is a consumer is defined as having is defined as any person obligated or allegedly obligated to pay any debt and that is the critical consideration here for this particular analysis because when we lose the term debt within that particular analysis of what is a claim we get back to an undefined term within the statute and so judge copenhagen did a very good job of walking through the various terms that were undefined including the term tax which he defined as having a liability on a claim as a specific sum of money due by agreement or otherwise and that's from black swan dictionary th edition and that is in page seventeen of his order and also cited to osborne versus united states which found that west virginia has been consistent that undefined words and terms used in the legislative in that it will give given their common ordinary and accepted meaning so taking that on an undefined term  utilizing the common definition in black dictionary or under merriam webster which means something owed an obligation or a state of being under an obligation to pay or repay someone or something in return for something received the state of owing taking that announces there has to be some further obligation after that initial point of sale transaction and that simply was not present here under the a are thank you for raising that issue and it is an important one and it's important in this particular instance to drill down i think on the specific facts and fault in this particular case the gap addendum involved a four hundred and ninety five read the agreement that she had signed as and signed the agreement there when she when they were there purchasing this automobile the key terms were the actual cash value in unpaid balance in this particular instance it is undisputed initiation of this matter in two thousand and twelve was that despite these facts and despite the definition that unpaid net down specifically excluding any late late payments deferred payments or miss payments that they were entitled to the recovery of the entirety of the amount of it at the time of the automobile accident in excess of the fair market value of the automobile had palin made all payments under her under her retail sales agreement for the purchase of this autumn legal appellant would have actually received approx only two thousand dollars from her liability insurance carrier now undertaking this analysis you utilizing what is reasonable under the circumstances the purchase of a four hundred and ninety five dollars gap again which was designed to cover any overage over top of the paint and that if i thought the carrier would have provided undertaking that reasonable assessment  i believe the district more correctly decided that under the circumstances it was unreasonable for someone to demand that it not to go through the parade of horribles but under the under appellant assessment of this analysis she could have just not made a single payment under her automobile sales installment contract and then got in an accident and expected safeguards for the four hundred and ninety five dollars to cover the entirety of her automobile overage at that time which would have been the entirety of the actual purchase price so when we're talking about this assessment of reasonable expectations in a dealer says we don't cover any any damage to your car  there's understanding that there are specific terms in the two page document that that missing will read and the district court correctly decided that this simply was not a reasonable expectation under the circumstances and even a trier fact would have decided the same thing there was no need to get the trier of fact based on the explicit terms of the agreement as well as the the analysis of the specific facts of this particular this particular matter very clear that it is not incumbent on someone who sells an insurance policy to sit there and walk a potential purchaser of a policy so ruin every single provision of an insurance policy and but under normal circumstances expect the person to whom it's payments incur late fees and and and then expect the purchaser expect the insurance policy in this particular instance to to just will well the reasonable expectation may be that they will miss payments but the reasonable expectation also is that for the purchase of a four hundred and ninety five dollars gap and in that you can expect someone in that  a company in that st particular industry to cover the entirety of that debt as a business model that would be completely and entirely untenable and that's why they specifically include the exclusion that's why they include the consumer credit protection act in the court before we got to the decision on the certification issued motions ruled on a motion to dismiss which rendered the certification issue moot at that point but the  bookkeeper mentioned and that was conflating the definition of consumer with claim issue in this particular instance is not the definition of consumer and the issue that's been another the definition of consumer was added later and so when the court it's construing the word claim the relevant subsections really are b c and d and that was one of the issues i believe that came about as wrong as a result of the court's formulation the court inserted the word that in to claim the word debt is not in the definition of claim it's simply a transaction and be used again that word transaction was intentional as provided for in the national place upon a true consumer to avoid allowing a merchant to use technique technicalities of contract law as a means of avoiding its obligations and responsibilities this definition makes it clear that there is not th an enforceable contract as long as there is an agreement which is the bargain of the parties in fact and so the definition of transaction again is very important and asked to the issues as to authority again there are no cases that say that this is not a proper construction the court does have to construe the statute but it construing the statute the purpose here is to construe it in such a way as to protect consumers and so in the example of a retailer engaging in an unfair or deceptive or bad practice in violation of article two they should be held to account under the act regardless of whether the consumer paid during the course of the transaction or at some point later with respect to article two i'm sorry article six which is the unfair deceptive acts or practices client again that same that same framework should be applied with that particular client is well too you have a situation in which the legislature intentionally use the word insurance to define terms you have an exemption but then you have a exception to the exemption which applies and again looking at the history the history explains why that exemption exist as well as the exception exists these are intentional words but to the extent of the court does find ambiguity it has to be drawn in favor of the consumer and a very good example of that drop line drawing process is the bar decision which the defendant side it's fine to hear it in that particular case the court was asked to construe the word creditor as used in one of the remedy sections says the policy would cover everything and if it too had an accident that's a fair question i'll address it this way there has been a bit of an undercurrent here  further and say client work with the lender to try to resolve the link when cease and work in the car was never reached his ass she fought to catch up and you know were able to work out an arrangement where there was some payments placed at the back in the blood and so from her perspective she is taking care of her obligations i'll be it there are financial difficulties here and really really what makes this different is that and this doesn't happen in the normal course of when you buy an insurance policy you actually have a salesperson and that's that's common but you have a sales person who is selling unlicensed products and making representations and what's very unique here is that you do not have the sales person testifying i didn't say any of those things and say i didn't say i'm going to pay if you don't make your payments and you get  ok did not contradict the notion of look if you're in an accident if there is there is a mouse left over we're going to step in and pay back and again and from her perspective from her perspective this is not a situation where these are just testimony why wouldn't she rely on the person who's selling it to her in very much like really it's extremely possible this person had no idea what he was selling there's no evidence in the record that he was trained in i would also point out that this was a car purchase obviously you think it was in their side in a bunch of documents and if you look at this thing i've looked at it many times and i i'm this is all i do is practice consumer law and i find it hard to understand it's small very small type rent i mean again why wouldn't she rely on the statements made by the sales representative