No. 16-0298 - Quicken Loans, Inc. v. Walters FILED 

June 15, 2017 LOUGHRY, C.J., dissenting, joined by KETCHUM, J.: released at 3:00 p.m. 

RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

The majority’s illogical and legally unsound opinion takes a perfectly 

straightforward statute and, despite declaring it to be unambiguous, badly misconstrues it, 

making a perfectly lawful banking transaction illegal. West Virginia Code § 31-17-8(m)(8) 

prohibits only the predatory practice of making loans which on their face appear to be 

adequately collateralized, but actually exceed the securing property’s fair market value when 

aggregated with other loans. In no way does the statute prohibit making loans which exceed 

100 percent “loan-to-value”; nevertheless, the majority now prohibits this otherwise lawful 

practice and compounds this error by awarding respondent Walters (the “respondent”) with 

attorney’s fees for prosecuting a claim that garnered her nothing. Because this Court is 

neither empowered to sua sponte create regulatory banking legislation nor sits as an arbiter 

of “moral” victories, I respectfully dissent. 

I. Inapplicability of West Virginia Code § 31-17-8(m)(8) 

The respondent refinanced her existing mortgage with the petitioner, Quicken 

Loans, Inc. (the “petitioner”) in the amount of $136,000.00 for the purpose of lowering her 

interest rate and monthly payment. Her property was apparently only worth $67,000.00 at 

the time of the loan, despite a licensed appraiser valuing the property at $152,000.00. The 

respondent filed a complaint against the petitioner, the appraiser, and the loan servicer. She 

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settled for $98,000.00 with the appraiser and loan servicer and proceeded to trial against the 

petitioner on her claims of an “illegal loan” prohibited by West Virginia Code § 31-17­

8(m)(8) and fraud; she sought punitive damages and a determination that the statutory 

violation was “willful” for purposes of voiding the loan. A jury rejected all of the 

respondent’s claims except for a single violation without malice of West Virginia Code § 31­

17-8(m)(8). Prior to trial, the petitioner moved the circuit court for judgment as a matter of 

law on the respondent’s claim for a violation of West Virginia Code § 31-17-8(m)(8), which 

the circuit court erroneously denied. 

The majority concludes, as did the circuit court, that this statutory provision 

prohibits the making of a singular mortgage loan in an amount that exceeds the fair market 

value of the property. In fact, it does no such thing. West Virginia Code § 31-17-8(m)(8) 

provides in pertinent part: 

In making any primary or subordinate mortgage loan, no 

licensee may, and no primary or subordinate mortgage lending 

transaction may, contain terms which: 

(8)	 Secure a primary or subordinate mortgage loan in a 

principal amount that, when added to the aggregate total 

of the outstanding principal balances of all other 

primary or subordinate mortgage loans secured by the 

same property, exceeds the fair market value of the 

property on the date that the latest mortgage loan is 

made. 

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(Emphasis added). Without necessity of interpretation or construction of the statute, even 

the most casual reader can ascertain that the statute forbids only making a loan (whether 

primary or subordinate) which “when added to the aggregate total . . . of all other . . . loans 

secured by the same property” exceeds the property’s fair market value. (Emphasis added). 

This clear and simplistic language plainly proscribes making a loan that, when aggregated 

with other loans, exceeds the property’s fair market value. The sine qua non of this 

prohibition is the existence of “other primary or subordinate mortgage loans” which 

aggregate, along with the subject loan, to exceed the property’s fair market value. The 

necessity of the existence of other loans is further made clear by the operative date for the 

fair market valuation of the property–“the date that the latest mortgage loan is made.” 

(Emphasis added). 

The rationale behind the mortgage loan prohibition, as stated in the statute, 

rather than the one created by the majority, is not difficult to discern. Loans which on their 

face alone do not exceed the property’s fair market value, but do so when added to other 

encumbrances, may deceptively lure a consumer into believing the property adequately 

collateralizes the individual loan. In reality, however, such a loan creates potential personal 

exposure for the consumer because the property has insufficient value to cover the aggregate 

combined total of the loans, which aggregated total may be unknown to or not easily 

ascertained by the consumer. It is this type of deceptive and predatory practice that the 

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statute seeks to preclude. On the other hand, a singular primary mortgage loan, the value of 

which exceeds the property’s fair market value, would be hard for even the most 

unsuspecting consumer to overlook. More importantly, such a loan may quite purposefully 

exceed the property’s value in order to provide additional funds for other purposes, such as 

paying off other unsecured debt. See McFarland v. Wells Fargo Bank, N. A., 810 F.3d 273, 

281 (4th Cir. 2016) (noting that excess proceeds of under-collateralized loan provided 

McFarland “with money he needed to pay off approximately $40,000 of student and 

automobile debt, as he had hoped.”). 

The majority, despite declaring West Virginia Code § 31-17-8(m)(8) 

unambiguous, launches into a lengthy discussion of the rule of statutory construction 

regarding avoidance of absurd results and the Legislative intent behind the statutory scheme 

to reach its erroneous conclusion that a single, stand-alone loan that exceeds the property’s 

fair market value is prohibited by this statute.1 Focusing exclusively on the use of the terms 

1

As stated within the precedent cited by the majority, ascertaining and giving effect 

to the intention of the Legislature is the primary rule of “statutory construction.” Syl. Pt. 1, 

Sheena H. For Russell H. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015) (emphasis 

added). Further, avoidance of absurdity in favor of reasonableness are methods of 

“construction of a statute[.]” Syl. Pt. 3, Id. (emphasis added). The majority apparently 

overlooks the threshold, fundamental principle that “[j]udicial interpretation of a statute is 

warranted only if the statute is ambiguous[.]” Syl. Pt. 1, in part, Ohio Cnty Com’n v. 

Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Having declared the statute unambiguous, 

it is unclear why the majority relies upon these canons of statutory construction–there is quite 

simply nothing to construe. See Syl. Pt. 6, Leggett v. EQT Production Co., __ W.Va. __, __ 

S.E.2d __, 2017 WL 2333083 (2017) (“‘When a statute is clear and unambiguous and the 

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“primary or subordinate” mortgage, the majority, like the respondent, grossly oversimplifies 

the statute, rendering meaningless more than half of the remaining language in the statute. 

The majorityapparentlybelieves this reverse engineering is necessaryto reach the immaterial 

conclusion that the statute “applies” to “primary” or “first” mortgages. Certainly, it does. 

Depending upon whether the subject loan is a primary or subordinate loan, the statute is 

potentially applicable. 

However, it is the majority’s lack of familiarity with lending practices which 

reveals the fallacy in its logic when it states that “by definition only subordinate mortgage 

loans are ‘subject to the lien of one or more prior recorded mortgages or deeds of trust.’” In 

short, the majority apparently believes that the only time a “primary mortgage loan” could 

be effectuated is when no other loans already exist. Quite the contrary, loans which assume 

the first-lien priority status, i.e., “primary” loans, are commonly entered into when other, 

“subordinate” loans exist.2 Through use of a garden-variety subordination agreement, the 

refinance of a “primary mortgage” preserves the first lien status of the mortgage despite the 

legislative intent is plain, the statute should not be interpreted by the courts, and in such case 

it is the duty of the courts not to construe but to apply the statute.’ Syl. Pt. 5, State v. General 

Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).”). 

2

The statutorydefinitions provide that the onlydifference in a primaryand subordinate 

mortgage loan is that the “subordinate mortgage loan” is “subject to the lien of one or more 

prior recorded mortgages or deeds of trust.” W.Va. Code § 31-17-1(m) and (o). “Primary 

mortgage loan” is not defined as a singular loan which exists to the exclusion of all other 

loans. Rather, it is simply a mortgage loan which occupies first-lien position. 

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existence of “prior recorded mortgages or deeds of trust.”3 In this event, the statute could be 

violated if this “primary” loan was entered into where there are additional “subordinate” 

loans which, aggregated with the subject primary loan, exceed the property’s fair market 

value as of the date of the “latest” mortgage loan. The reason the statute prohibits such 

practice–regardless of whether the subject loan is a primary or subordinate loan–is to account 

for this very scenario, i.e., the refinance of a primary loan, which will continue to occupy 

first-lien status.4 The prohibition against this practice as to primary loans does not mean that 

a singular, stand-alone primary mortgage that exceeds 100 percent loan-to-value violates the 

statute. 

This is the same conclusion reached byJudge Goodwin in the Southern District 

of West Virginia–the only jurist to have previously addressed this precise issue. In Skibbe 

v. Accredited Home Lenders, Inc., No. 2:08-cv-01393, 2014 WL 2117088 *6 (May 21, 2014, 

S.D. W.Va.), Judge Goodwin similarly reasoned that “the plain language of the statute 

3

“A mortgage subordination agreement is a document frequently used when there are 

two mortgages on a home, and the homeowner is looking to refinance the first mortgage. The 

mortgage subordination agreement specifies which mortgage takes precedence over the 

other.” http://www.mortgage101.com/article/what-is-mortgage-subordination-agreement 

(last visited June 12, 2017). 

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Were the statute not to make such a provision for primary loans, a predatory lender 

could simply refinance the first-lien mortgage and obtain subordination of any other loans, 

thereby duping the debtor into encumbering his or her property for a greater aggregate 

amount than the property is worth–the precise practice prohibited by the statute. 

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requires the existence of other mortgage loans before it will apply.” I can scarcely improve 

upon Judge Goodwin’s straightforward reading of the plain language of the statute: 

By its terms, the statute does not apply when a borrower takes 

out her first mortgage loan and the principal balance of that loan 

exceeds the fair market value of the property at the time the loan 

is made. This section applies when a borrower takes out an 

additional mortgage loan, and the principal balance of that loan, 

when added to the outstanding balance of other existing loans, 

“exceeds the fair market value of the property on the date that 

the latest mortgage loan is made.” 

Id. (Emphasis in original). This conclusion is entirely unaffected by the respondent’s string 

cite of cases, which purportedly conclude that “the statutory prohibition applies to both 

primary and subordinate mortgage loans.” These cases either did involve multiple loans (to 

which the statute plainly applies) or failed altogether to address the issue presented herein: 

the applicability of the statute to a singular loan that exceeds the property’s fair market 

value.5 To state that the statute “applies” to primary or subordinate mortgage loans is to miss 

the entire issue presented herein. 

5

Fabian v. Home Loan Center, Inc., No. 5:14-cv-42, 2014 WL 1648289 (N.D. W.Va. 

Apr. 24, 2014), and Robinson v. Quicken Loans, Inc., 988 F. Supp.2d 615 (S.D. W.Va. Dec. 

24, 2013), both involved a primary mortgage and a secondary home equity line of credit. 

O’Brien v. Quicken Loans, Inc., No. 2:12-cv-5138, 2013 WL 2319248 (S.D. W.Va. May 28, 

2013), Hixson v. HSBC Mortgage Services, Inc., No. 09-ap-42, 2011 WL 4625374 (Bankr. 

N.D. W.Va. Sept. 30, 2011), Bishop v. Quicken Loans, Inc., No. 2:09-cv-1076, 2011 WL 

1321360 (S.D. W.Va. Apr. 4, 2011), Crove v. GreenPoint Mortg. Funding, Inc., 740 F. 

Supp.2d 788 (S.D. W.Va. Aug. 11, 2000), and Quicken Loans, Inc., v. Brown, 230 W.Va. 

306, 737 S.E.2d 640 (2012), were all disposed of on pleading or evidentiary issues or did not 

otherwise address the issue presented in any fashion. All of these cases, except for Hixson, 

involved the respondent’s counsel. 

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The majority’s reading of West Virginia Code § 31-17-8(m)(8) requires one 

to completely disregard the primary operative language of the statute, i.e., the aggregation 

language. In order to give significance to this language, the respondent flimsily suggests 

that when there is no other such loan(s) with which to aggregate, the “outstanding principal 

balance” added to the subject loan is simply zero. However, if the Legislature had intended 

to wholly proscribe loans which, alone or in the aggregate, exceed a property’s fair market 

value, it certainly could have done so by simply writing the statute to prohibit a mortgage 

loan that either singly or “when added to the aggregate total of the outstanding principal 

balances of all other primary or subordinate mortgage loans, if any, secured by the same 

property, exceeds the fair market value . . . .” The Legislature simply did not so intend.6 Nor 

did the Legislature see fit to expand the statute to include single, primary mortgage loans 

when the statute was amended in 2001, 2002, 2010, 2012, and 2016. 

The foregoing leads to the core fallacy underlying the majority’s conclusion: 

there is simply nothing illegal or unlawful about making a loan in excess of a property’s fair 

6

In fact, before inclusion of these and other provisions into this Article, it was entitled 

“Secondary Mortgage Loans.” See W.Va. Code Chapter 31, Article 17 (1996). In 2000, 

subsection (m)(8) was added to West Virginia Code § 31-17-8 and the statute was amended 

to govern mortgages, generally, removing references to “secondary” mortgage loans and 

altering the title to simply “Mortgage Loans.” However, the particular portion of West 

Virginia Code § 31-17-8(m)(8) at issue herein has remained unaltered since its inclusion in 

2000, and has always forbidden primary or subordinate mortgages insofar as such mortgages 

aggregated with other outstanding loans exceeds fair market value. 

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market value should a lender choose to accept such risk.7 There is no federal prohibition on 

such a practice identified by the respondent and such loans create greater risk to the lender 

than the consumer. In McFarland, 810 F.3d at 278, faced with precisely the same scenario, 

the Fourth Circuit explained: 

Whatever the pitfalls, receiving too much money from a bank is 

not what is generally meant by “overly harsh” treatment . . . . [I]t 

is not the borrower but the bank that typically is disadvantaged 

by an under-collateralized loan. That is why borrowers may pay 

a premium for under- or non-collateralized loans, why it is 

common practice for banks, as many borrowers can attest, to 

ensure that their real estate loans are for significantly less than 

property value, and why a generous mortgage loan is usually 

cause for celebration and not a lawsuit. 

Id. at 280 (citations omitted). Further, as Judge Goodwin aptly reasoned in the underlying 

District Court opinion concerning this scenario: 

The notion that [a consumer is] harmed by [a mortgage loan that 

exceeds the secured property’s fair market value] is ridiculous. 

Consumers using credit cards to incur more charges than they 

can repay are not disadvantaged by their high credit limits. 

Students financing their education are not disadvantaged by 

their ability to obtain such financing. The plaintiff obviously 

owes a larger debt than he otherwise would if he accepted a 

smaller loan. But that is exactly how loans work, and there is 

nothing unfair about it. 

McFarland v. Wells Fargo Bank, N.A., 19 F. Supp. 3d 663, 670 (S.D. W.Va. 2014), aff’d in 

part, vacated in part, 810 F.3d 273 (4th Cir. 2016). In fact, the Fourth Circuit fully embraced 

7

This would be subject, of course, to any and all applicable state and federal lending 

guidelines in the making and consummation of the loan. See 15 U.S.C.A. § 1601 et seq. 

(governing “Consumer Credit Cost Disclosures”). 

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Judge Goodwin’s cogent analysis that “[i]f anything . . . an undersecured mortgage 

disadvantages the lender, not the borrower” when affirming Judge Goodwin’s conclusion that 

such a loan is not, on its terms alone, substantively unconscionable.8 

The foregoing is utilized not necessarily as dispositive of the meaning of the 

statute at issue, but as an illustration that loans that exceed a property’s fair market value are 

neither unheard of nor inherently suspect. In fact, under the federal “Home Affordable 

Refinance Program”9 such loans are often written by lenders with no loan-to-value ratio 

(“LTV”) requirements.10 See http://harpprogram.org/faq.php (“There is no longer a 

8

Interestingly, despite being represented by the same counsel as the respondent 

herein–Mountain State Justice–and presenting ostensibly identical facts involving only a 

singular, under-collateralized loan, McFarland did not bring an action for violation of West 

Virginia Code § 31-17-8(m)(8). Rather, he only asserted claims for substantive 

unconscionabilityand unconscionable inducement; the Fourth Circuit allowed onlythe claim 

of unconscionable inducement to proceed. The respondent in the case at bar voluntarily 

dismissed her claim of unconscionable inducement. 

9

See Marks v. Bank of Am., N.A., No. 03:10-CV08039PHXJAT, 2010 WL 2572988, 

at *5 (D. Ariz. June 22, 2010) (“On October 8, 2008, President Bush signed into law the 

Emergency Economic Stabilization Act of 2008, Pub.L. No. 110-343, 122 Stat. 3765 

(codified 12 U.S.C.A.§ 5201 et seq.) (“EESA”). Section 109 required the Secretary of the 

Treasury (“the Secretary”) to take certain measures in order to encourage and facilitate loan 

modifications. 12 U.S.C.A. § 5219. . . . The EESA authorized the Secretary of the Treasury, 

FHFA, Fannie Mae, and Freddie Mac to create the Making Home Affordable Program on 

February 18, 2009, which consists of two components: (1) the Home Affordable Refinance 

Program [“HARP”], and (2) the HAMP [“Home Affordable Modification Program”].”). 

10See http://harp.gov/About (“Introduced in March 2009, HARP enables borrowers 

with little or no equity to refinance into more affordable mortgages without new or additional 

mortgage insurance. HARP targets borrowers with loan-to-value (LTV) ratios equal to or 

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maximum LTV limit for borrower eligibility. If the borrower refinances under HARP® and 

their new loan has a fixed rate mortgage, there is no maximum LTV. If the borrower 

refinances under HARP® and their new loan is an adjustable rate mortgage, their LTV may 

not be over 105%.”). While such loans are expressly exempted from the reach of West 

Virginia Code § 31-17-8(m)(8), their mere existence demonstrates that the practice now 

made unlawful by the majority is, if perhaps not commonplace, perfectly legitimate. As 

Judge Goodwin astutely noted, “[f]ollowing the plaintiff's logic, all unsecured loans are 

substantively unconscionable[.]” McFarland, 19 F. Supp. 3d at 670. Just as unsecured loans 

are not per se unconscionable, singular loans that exceed 100% loan-to-value are not 

unlawful. As such, there is simply no reason why the Legislature would have chosen to 

forbid under-secured loans in a statutory scheme designed to prohibit predatory lending 

practices. See Herrod v. First Republic Mortg. Corp., 218 W.Va. 611, 618, 625 S.E.2d 373, 

380 (2005) (describing W.Va. Code § 31-17-8(m) as part of West Virginia’s “predatory 

lending law”). 

In short, the majority has ham-handedly rendered a perfectly lawful lending 

transaction “predatory” in nature and, therefore, “illegal.” For those of us not immersed in 

the industry, it is difficult to predict the sweeping implications of the majority’s uninformed 

greater than 80 percent and who have limited delinquencies over the 12 months prior to 

refinancing.”). 

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decision. What is clear, however, is that it is now incumbent upon the Legislature to rectify 

this “judicial legislation” and cure any economic implications created by the unwary 

majority, which was apparentlybent on salvaging the respondent’s self-proclaimed “victory” 

that was only marginally obtained in the first instance. 

II. Erroneous Attorney’s Fee Award 

The respondent’s self-proclaimed “victory” leads me to the majority’s second, 

equally inscrutable and erroneous conclusion: that the respondent somehow “prevailed” in 

the underlying litigation, making her entitled to a potential award of more than $150,000.00 

in attorney’s fees, despite securing not a single penny in judgment from the petitioner for its 

alleged statutory violation. As indicated above, the jury awarded the respondent $27,000.00 

in damages for the petitioner’s non-willful statutory violation. Having previously settled 

with the other co-defendants in the total amount of $98,000.00 ($65,500.00 in compensatory 

damages and $32,500.00 for attorney’s fees), after offset, the respondent received nothing 

from the petitioner. This perceived “moral victory” is wholly insufficient to substantiate an 

award of attorney’s fees. In rejecting the same argument, the United States Supreme Court 

stated: 

The only “relief” [plaintiff] received was the moral satisfaction 

of knowing that a [] court concluded that his rights had been 

violated. The same moral satisfaction presumably results from 

any favorable statement of law in an otherwise unfavorable 

opinion. . . . . [A] favorable judicial statement of law in the 

course of litigation . . . does not suffice to render him a 

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“prevailing party.” Any other result strains both the statutory 

language and common sense. 

Hewitt v. Helms, 482 U.S. 755, 762-63 (1987). 

A. The respondent did not “prevail” 

The United States Supreme Court has further explained that “plaintiffs may be 

considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant 

issue in litigation which achieves some of the benefit the parties sought in bringing suit.” 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citing Nadeau v. Helgemoe, 581 F.2d 275, 

278-79 (1st Cir. 1978) (emphasis added)). The respondent can identify absolutely no 

“benefit” the trial and jury verdict rendered. Similarly, this Court has held that “[f]or a 

plaintiff to have “prevailed” at trial, . . . he must demonstrate that the litigation effected the 

material alteration of the legal relationship of the parties in a manner which the legislature 

sought to promote in the fee statute.” Schartiger v. Land Use Corp., 187 W.Va. 612, 613, 

420 S.E.2d 883, 884 (1991). The respondent’s “victory” of a mere finding of a single, nonwillful statutory violation resulted in absolutely no alteration of the legal relationship of the 

parties: the petitioner paid the respondent nothing and the debt remained intact due to the 

finding of a non-willful violation. More to the point, this Court has expressly stated: 

A party who needlessly pursues litigation after he has been 

offered a settlement that exceeds what the jury finally awards by 

an amount sufficient to have compensated the plaintiff for all his 

attorneys’ fees and expenses at the time the offer was made is 

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not entitled to any attorneys’ fees that accrued after the offer 

was made. 

Id. at 616, 420 S.E.2d at 887. This is precisely what occurred in this case. As indicated in 

the petitioner’s brief, months before trial it extended a settlement offer to the respondent, 

which she rejected. The respondent then “needlessly pursue[d] litigation” and gained 

nothing. Id. 

The majority appears to be implicitly operating under a misapprehension that 

the pre-offset verdict is of some legal consequence in this analysis. Let me be clear: the 

offset in this matter was not levied as a “favor” to the petitioner, nor is it a mere technicality 

which creates the illusion that the respondent did not prevail. An offset for amounts already 

paid by jointly tortious defendants is legally required and serves to fix, by law, the amount 

which the respondent is legally entitled to recover from the petitioner. Indeed, “[d]efendants 

in a civil action against whom a verdict is rendered are entitled to have the verdict reduced 

by the amount of any good faith settlements previously made with the plaintiff by other 

jointly liable parties.” Syl. Pt. 7, Bd. of Educ. of McDowell Cty. v. Zando, Martin & 

Milstead, Inc., 182 W.Va. 597, 600, 390 S.E.2d 796, 799 (1990). In this case, the respondent 

is entitled to recover nothing by operation of law. Until the offset is applied, the judgment 

is neither fixed, nor final. See Groves v. Compton, 167 W.Va. 873, 880, 280 S.E.2d 708, 712 

(1981) (stating that when jury is not apprised of prior settlement amount “the trial court 

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deducts the settlement figure from the award before entering the judgment”) (emphasis 

added). Therefore, focus on the pre-offset verdict of $27,000.00 is pointless. 

Accordingly, the final appealable judgment entered in this matter was zero.

11 

The judgment is precisely the same as if the jury had found no violation or a violation, yet 

no damages. Other courts have had little difficulty in reaching the inescapable conclusion 

that somehow eludes the majority: that the trial and verdict must have benefitted the 

respondent in some manner for her to have “prevailed.” See Goodman v. Lozano, 223 P.3d 

77, 78 (Cal. 2010) (finding plaintiff “ordered to take nothing against the nonsettling 

defendants due to the settlement offset” was not prevailing party); Imperial Lofts, Ltd. v. 

Imperial Woodworks, Inc., 245 S.W.3d 1, 7 (Tex. Ct. App. 2007) (holding that because 

“settlement credits and insurance payment exceeded the jury’s damage award . . . [plaintiff] 

was not the prevailing party and was not entitled to recover its attorney’s fees.”); Blizzard 

v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. Ct. App. 1988) (“It is one thing 

to allow a party an award of attorney fees on a successful claim notwithstanding an opposing 

party’s success on an offsetting claim. It is quite another to allow attorney fees on a claim 

which, although successful, was paid in full [through prior settlements] before trial.”); Stout 

v. State, 803 P.2d 1352, 1354 (Wash. Ct. App. 1991) (holding “one who obtains a verdict for 

11The circuit court granted the petitioner’s motion to correct the verdict to reflect an 

offset of $65,500.00, leaving a verdict of zero. 

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an amount equal to or less than what is already in hand has not received an affirmative 

judgment and is not the prevailing party” for purposes of attorney’s fee award). 

In absence of damages–a necessary element of any cause of action–what has 

the respondent successfully accomplished? The respondent did not seek a mere declaration 

that the petitioner violated West Virginia Code § 31-17-8(m)(8). She proceeded to trial 

under the belief that her action against the petitioner would garner her a damages award in 

excess of those amounts she had already received; she was wrong. Under the respondent’s 

argument, the only party who benefitted from that erroneous risk assessment is her attorney. 

Quite simply, West Virginia Code § 31-17-8 does not exist to generate fees for lawyers. 

Under the majority’s decision, there is no disincentive for attorneys to encourage their clients 

to endure the rigors of trial since, at worst, their client recovers nothing, yet they still recover 

their fees. This transforms the statute into a mere fee-generating mechanism for attorneys. 

B. Attorney’s fees under West Virginia Code § 31-17-17 are not compensatory 

I further take extreme issue with the circular position that, since attorney’s fees 

were recoverable under the statute, such fees therefore form part of the compensatory 

damages to which the respondent was entitled, thereby justifying an award of attorney fees. 

Boiled to its essence, the respondent argues that the statutory allowance for attorney’s fees 

supports the notion that she “prevailed”; since she prevailed, she is thereby entitled her to 

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attorney’s fees. Aside from being entirely circular, this argument contains a more obvious 

fallacy: that she is necessarily “entitled” to attorney’s fees under the statute. 

As set forth in my dissent in Quicken Loans, Inc. v. Brown, 236 W.Va. 12, 777 

S.E.2d 581 (2014) (“Quicken II”), attorney’s fees and costs are not per se compensatory 

damages, the type to which a claimant is entitled. Although the discussion in Quicken II 

regarded recoveryof attorney’s fees under the West Virginia Consumer Credit and Protection 

Act, the analysis is the same. Like the Consumer Credit and Protection Act, West Virginia 

Code § 31-17-17(c) makes fees permissible, not mandatory: “Any residential mortgage loan 

transaction in violation of this article shall be subject to an action . . . by the borrower seeking 

damages, reasonable attorney’s fees and costs[.]” While a borrower may “seek” attorney’s 

fees, there is no language whatsoever in the operative statute making an award of fees 

mandatory under any circumstances. As I explained in Quicken II, “[l]ogic suggests that 

recovery of [attorney’s fees] would have been structured as mandatory if the Legislature had 

intended attorney’s fees and costs to be deemed compensatory in nature[.]” Id. at 46, 777 

S.E.2d at 615 (Loughry, J., dissenting). Moreover, a separate delineation of attorney’s fees 

and costs, in addition to “damages,” further suggests that such an award does not represent 

part of the recovery needed to compensate a plaintiff. Finally, the type of predatory lending 

behavior West Virginia Code § 31-17-8 seeks to preclude is clearly “bad behavior”; the 

purpose for which attorney’s fees are awarded for such behavior is to “punish[] and 

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discourage.” Boyd v. Goffoli, 216 W.Va. 522, 569, 608 S.E.2d 169, 186 (2004). Thus, it 

makes little sense to argue that the availability of attorney’s fees, if appropriate, constitutes 

some sort of compensatory element of the respondent’s damages which itself is sufficient to 

justify an award of attorney’s fees. I therefore find the majority’s new syllabus point 

declaring these permissive fees to be compensatory wholly without support. 

C. The circuit court’s attorney’s fee analysis was error 

Assuming, arguendo, that the respondent’s “moral victory” against the 

petitioner made her the “prevailing” party for purposes of an attorney’s fee award, it is clear 

that the circuit court erred in summarily awarding fees generated prosecuting the entire cause 

of action against all defendants and only allowing an offset of a nominal, non-representative 

figure for attorney’s fees received in the prior settlements. It is well-established that “when 

a complainant sets forth distinct causes of action so that the facts supporting one are entirely 

different from the facts supporting another, and then fails to prevail on one or more such 

distinct causes of action . . . attorneys’ fees for the unsuccessful causes of action should not 

be awarded.” Bishop Coal Co. v. Salyers, 181 W.Va. 71, 83, 380 S.E.2d 238, 250 (1989). 

The figure presented by the respondent to the circuit court reflected fees generated in pursuit 

of the entire case against all defendants, as reflected in the circuit court’s order. Further, the 

figure requested by the respondent plainly represented efforts expended in pursuing its entire 

case against the petitioner, including her fraud claim on which she did not prevail. Any fee 

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award should have consisted only of those fees and costs generated in pursuit of the 

respondent’s singular “successful” claim against the petitioner: the nominal statutory 

violation. 

The circuit court attempted to ameliorate the obvious inequityof the significant 

fee award by offsetting those amounts received from the settling co-defendants that were 

designated as “attorney’s fees” within those settlements. However, the round figures which 

purportedly represented attorney’s fees in the prior settlements–$25,000.00 and 

$7,500.00–signify literally nothing. There is no evidence those amounts represented actual 

fees incurred and attributable to the claims against those parties. As settlement figures, they 

reflected compromised amounts rather than a precise calculation of fees and costs payable 

by that particular party in settlement of a claim for attorney’s fees. Moreover, the circuit 

court summarily designated certain amounts to pursuit of claims against the settling 

defendants and concluded that, since such amounts were less than the actual settlement 

amounts, the respondent was getting some added benefit from offsetting the attorney’s fee 

settlement sums. Significantly, however, since the circuit court’s order contains no 

itemization of these fees and costs, it evades this Court’s review. Further, the fact that the 

circuit court found that time dedicated to pursuing the settling defendants was actually less 

than theypaid in settlement for those fees fullydemonstrates how arbitraryand unmeaningful 

the offset truly is. 

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The flaws in the circuit court’s analysis of the attorney’s fee award are patent. 

Rather than clumsily retrofitting the settlement amounts to the clearly over-inclusive fee 

submission by the respondent, the circuit court, on remand, should dredge out of the fee 

statements onlythose amounts reasonablyattributable to prosecution of the singular statutory 

violation upon which the respondent received a favorable result. As indicated above, this is 

required by our caselaw. The circuit court should then itemize those entries in its order 

making appellate review of such award feasible. In absence of this methodology, the 

attorney’s fee award is a wholly arbitrary and unreviewable, such that the award that should 

not stand. 

III. Conclusion 

The majority’s wholly misguided handling of this marginal verdict, both 

substantively and with respect to the fee award, is not only troubling, but has serious and farreaching implications that will clearly require legislative correction. Further, the majority’s 

decision virtually demands that this Court thoroughly revisit its attorney’s fee award 

precedent, particularly that articulated in Quicken Loans I and II, rather than simply tossing 

in a new syllabus point on the issue while remanding for a badly mishandled fee award. 

Accordingly, I respectfully dissent. 

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