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 

vs) No. 16-0342 (Kanawha County 15-C-1970) OF WEST VIRGINIA 

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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