FDCPA Violation Complaint - West Virginia

COMPLAINT FOR VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT AND THE WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Jurisdiction and Venue
4. Parties
5. Pre-Suit Notice (W. Va. Code § 46A-5-108)
6. Factual Allegations
7. Count I — Violations of the FDCPA, 15 U.S.C. § 1692 et seq.
8. Count II — Violations of the WVCCPA Debt Collection Provisions
9. Count III — Illegal, Fraudulent, or Unconscionable Conduct (W. Va. Code § 46A-2-128)
10. Prayer for Relief
11. Demand for Jury Trial
12. Signature and Service Blocks
13. Certificate of Service
14. West Virginia Practice Notes
15. Sources and References

1. CAPTION

UNITED STATES DISTRICT COURT

[NORTHERN / SOUTHERN] DISTRICT OF WEST VIRGINIA

[__________________] DIVISION

Civil Action No. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

2. INTRODUCTION

1. This is a consumer-protection action brought under the federal Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p, and the West Virginia Consumer Credit and Protection Act ("WVCCPA"), W. Va. Code § 46A-1-101 et seq., to redress Defendant's abusive, deceptive, and unfair debt-collection practices directed at Plaintiff, a West Virginia consumer.

2. The WVCCPA is one of the most consumer-protective state debt-collection statutes in the United States. Its private right of action authorizes the recovery of actual damages plus a civil penalty currently statutorily set at $1,000 per violation (subject to inflation adjustment under W. Va. Code § 46A-5-106), plus reasonable attorney's fees and costs under § 46A-5-104.

3. Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e).

4. Plaintiff seeks actual damages, FDCPA statutory damages, WVCCPA per-violation civil penalties, costs, and reasonable attorney's fees, together with such other relief as the Court deems just and proper.

3. JURISDICTION AND VENUE

3.1. This Court has federal-question jurisdiction over Count I pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 1692k(d).

3.2. The Court has supplemental jurisdiction over the West Virginia state-law claims (Counts II and III) pursuant to 28 U.S.C. § 1367(a) because they form part of the same case or controversy.

3.3. Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claims occurred within this District, and Plaintiff resides in [COUNTY] County, West Virginia.

3.4. For the WVCCPA claims, venue is also proper under W. Va. Code § 46A-5-107 because Plaintiff resides in [COUNTY] County, West Virginia, and/or because Defendant's principal place of business or registered agent is located in [COUNTY] County.

4. PARTIES

4.1. Plaintiff [PLAINTIFF NAME] is a natural person residing in [COUNTY] County, West Virginia, and is a "consumer" as defined by 15 U.S.C. § 1692a(3) and a "consumer" within the meaning of W. Va. Code § 46A-2-122(b).

4.2. Defendant [DEBT COLLECTOR NAME] is a [corporation / LLC] organized under the laws of [STATE] with its principal place of business at [ADDRESS]. Defendant regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due to another, and is therefore a "debt collector" as defined by 15 U.S.C. § 1692a(6) and W. Va. Code § 46A-2-122(d).

4.3. [Optional] Defendant [CREDITOR / DEBT BUYER] is a [corporation / LLC] that [purchases / owns] the alleged debt at issue and uses Defendant [DEBT COLLECTOR] to collect it. Defendant [CREDITOR / DEBT BUYER] is a "creditor" or "debt collector" within the meaning of W. Va. Code § 46A-2-122 and may not avoid WVCCPA liability through use of an agent.

5. PRE-SUIT NOTICE (W. Va. Code § 46A-5-108)

5.1. On [__/__/____], more than forty-five (45) days before filing this Complaint, Plaintiff sent Defendant a written notice by United States Certified Mail, Return Receipt Requested, identifying the alleged WVCCPA violations, as required by W. Va. Code § 46A-5-108. A true and correct copy is attached as Exhibit A.

5.2. Defendant [failed to respond / refused to cure / did not offer adequate compensation] within the 45-day cure period, and the violations remain uncured.

5.3. Plaintiff has therefore satisfied the pre-suit notice condition precedent to bringing this private action.

6. FACTUAL ALLEGATIONS

6.1. The alleged debt at issue is a "debt" within the meaning of 15 U.S.C. § 1692a(5) and a "claim" within the meaning of W. Va. Code § 46A-2-122(c) because it arises from a transaction in which the money, property, insurance, or services that were the subject of the transaction were primarily for personal, family, or household purposes (the "Alleged Debt").

6.2. On or about [__/__/____], Defendant [DEBT COLLECTOR] first communicated with Plaintiff regarding the Alleged Debt by [telephone / letter / email / text].

6.3. Between [__/__/____] and [__/__/____], Defendant placed approximately [NUMBER] telephone calls to Plaintiff, including calls [before 8:00 a.m. / after 9:00 p.m.] / [to Plaintiff's workplace after notice not to call] / [after Plaintiff retained counsel and notified Defendant in writing].

6.4. Defendant's communications and conduct included one or more of the following:

• [Threats to take action that could not lawfully be taken — e.g., arrest, criminal prosecution, wage garnishment without judgment, seizure of property];
• [Misrepresentations of the character, amount, or legal status of the Alleged Debt];
• [Failure to send the § 1692g(a) validation notice within five days of the initial communication];
• [Continued collection activity after written dispute, in violation of § 1692g(b)];
• [Communication with third parties — employer, family member, neighbor — about the Alleged Debt];
• [Use of false names, fictitious business names, or impersonation of attorneys, government officials, or process servers];
• [Reporting the disputed debt to a credit reporting agency without disclosing the dispute];
• [Adding unauthorized fees, interest, or charges not permitted by the underlying agreement or by law].

6.5. On [__/__/____], Plaintiff sent Defendant a written debt-validation request and dispute pursuant to 15 U.S.C. § 1692g(b). A true and correct copy is attached as Exhibit B.

6.6. Despite receiving the dispute, Defendant [failed to cease collection / failed to provide verification / continued to call / sued without verification / continued to report adverse credit information].

6.7. As a direct and proximate result of Defendant's conduct, Plaintiff has suffered [describe injury — emotional distress, anxiety, sleeplessness, embarrassment, lost wages, attorney consultation fees, damaged credit reputation, denial of credit, and out-of-pocket expenses].

7. COUNT I — VIOLATIONS OF THE FDCPA, 15 U.S.C. § 1692 ET SEQ.

7.1. Plaintiff realleges and incorporates Paragraphs 1 through 6.7.

7.2. Defendant violated the FDCPA in one or more of the following ways:

• 15 U.S.C. § 1692c(a)(1) — communicating with Plaintiff at unusual or inconvenient times or places;
• 15 U.S.C. § 1692c(a)(2) — communicating with Plaintiff after notice that Plaintiff was represented by counsel;
• 15 U.S.C. § 1692c(b) — communicating with third parties about the Alleged Debt without authorization;
• 15 U.S.C. § 1692d — engaging in conduct the natural consequence of which is to harass, oppress, or abuse;
• 15 U.S.C. § 1692e — using false, deceptive, or misleading representations, including misrepresentation of the character, amount, or legal status of the Alleged Debt (§ 1692e(2)(A)) and threats to take action that cannot legally be taken (§ 1692e(5));
• 15 U.S.C. § 1692f — using unfair or unconscionable means to collect the Alleged Debt;
• 15 U.S.C. § 1692g(a) — failing to provide the required validation notice within five days of the initial communication;
• 15 U.S.C. § 1692g(b) — failing to cease collection upon written dispute and to provide verification.

7.3. Defendant's violations were [knowing and intentional / not the result of a bona fide error].

7.4. Pursuant to 15 U.S.C. § 1692k, Plaintiff is entitled to actual damages, additional statutory damages of up to $1,000, and reasonable attorney's fees and costs.

8. COUNT II — VIOLATIONS OF THE WVCCPA DEBT COLLECTION PROVISIONS

8.1. Plaintiff realleges and incorporates Paragraphs 1 through 7.4.

8.2. The WVCCPA, W. Va. Code § 46A-1-101 et seq., regulates and prohibits a broad range of abusive debt collection conduct in West Virginia.

8.3. Defendant violated the WVCCPA in one or more of the following ways:

• W. Va. Code § 46A-2-124 — using or threatening force, violence, or criminal prosecution; or threatening any action prohibited by chapter 46A or other law regulating the conduct of debt collectors;
• W. Va. Code § 46A-2-125 — engaging in oppression and abuse, including:
• using profane, obscene, or vulgar language;
• placing telephone calls without disclosure of the caller's identity;
• causing the telephone to ring or engaging the consumer in conversation repeatedly or continuously with intent to annoy, abuse, oppress, or threaten;
• W. Va. Code § 46A-2-126 — unreasonable publication of information related to the debt, including communicating with employers, relatives, or third parties not residing in the consumer's household;
• W. Va. Code § 46A-2-127 — using fraudulent, deceptive, or misleading representations, including:
• misrepresenting the character, extent, or amount of the Alleged Debt;
• misrepresenting the consequences of nonpayment;
• using a name other than the true name of the debt collector's business;
• falsely representing that the debt collector is associated with a government, court, or attorney;
• W. Va. Code § 46A-2-128 — using unfair or unconscionable means to collect the Alleged Debt, including:
• collecting or attempting to collect any interest, fee, or charge not expressly authorized by the agreement creating the debt or by law;
• communicating with the consumer after written notice that Plaintiff is represented by counsel (subject to the statutory 72-hour cure period for written attorney-representation notices added by the 2015 amendments);
• communicating with the consumer after a written request to cease communications.

8.4. Each violation is separately actionable. Pursuant to W. Va. Code § 46A-5-101, Plaintiff is entitled to recover for each violation a civil penalty of $1,000 (subject to inflation adjustment under § 46A-5-106) plus actual damages.

8.5. Pursuant to W. Va. Code § 46A-5-104, Plaintiff is entitled to recover reasonable attorney's fees and costs.

9. COUNT III — ILLEGAL, FRAUDULENT, OR UNCONSCIONABLE CONDUCT (W. Va. Code § 46A-2-128)

9.1. Plaintiff realleges and incorporates Paragraphs 1 through 8.5.

9.2. The acts and omissions described above, taken individually and collectively, constitute illegal, fraudulent, or unconscionable conduct under W. Va. Code § 46A-2-128 and § 46A-6-104 (declaring unfair methods of competition and unfair or deceptive acts or practices unlawful).

9.3. Defendant's conduct was undertaken in connection with consumer collection activity in trade or commerce in West Virginia.

9.4. Plaintiff has suffered actual damages and is entitled to per-violation civil penalties under W. Va. Code § 46A-5-101 and equitable relief under § 46A-5-101 and § 46A-7-111.

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against Defendant as follows:

• A. Actual damages pursuant to 15 U.S.C. § 1692k(a)(1) and W. Va. Code § 46A-5-101(1);
• B. Statutory damages of $1,000 pursuant to 15 U.S.C. § 1692k(a)(2)(A);
• C. A civil penalty of $1,000 (as adjusted for inflation under W. Va. Code § 46A-5-106) for EACH violation of the WVCCPA, pursuant to W. Va. Code § 46A-5-101(1);
• D. Reasonable attorney's fees and costs pursuant to 15 U.S.C. § 1692k(a)(3) and W. Va. Code § 46A-5-104;
• E. Pre-judgment and post-judgment interest as allowed by law;
• F. Equitable relief, including an order requiring Defendant to cease collection and to retract any inaccurate credit reporting;
• G. Such other and further relief as the Court deems just and proper.

11. DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to Fed. R. Civ. P. 38(b) (or, if filed in state court, W. Va. R. Civ. P. 38).

12. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], W. Va. State Bar ID No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, WV ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

13. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused the foregoing COMPLAINT AND DEMAND FOR JURY TRIAL to be served upon Defendants pursuant to Fed. R. Civ. P. 4 (or W. Va. R. Civ. P. 4) at the following addresses:

[SERVICE LIST WITH ADDRESSES, including registered agent for service of process]

[________________________________]

[ATTORNEY NAME]

14. WEST VIRGINIA PRACTICE NOTES

• Pre-suit notice — DO NOT SKIP. W. Va. Code § 46A-5-108 requires a 45-day written notice (certified mail, return receipt) before filing a private action premised on Articles 2, 3, 4, or 6. Failure to give notice is the most common ground for dismissal of WVCCPA claims. The notice must identify the violations and provide the creditor an opportunity to cure. The exception applies where the consumer asserts WVCCPA as a counterclaim or defense to the creditor's collection action.
• 2015 amendments (Senate Bill 542). Effective for actions filed on or after June 11, 2015, SB 542 (i) capped the WVCCPA per-violation statutory penalty at $1,000, (ii) capped class action aggregate recovery at the greater of $175,000 or total outstanding indebtedness, (iii) shortened cease-communications timing for represented-consumer notices to a 72-hour window after written notice with attorney's name, address, and phone number to the registered agent, (iv) tightened the unreasonable-publication definition under § 46A-2-126, and (v) instructed venue under § 46A-5-107.
• Statute of limitations. Federal FDCPA: ONE (1) year per 15 U.S.C. § 1692k(d). WVCCPA: FOUR (4) years for actions filed on or after September 1, 2015 (post-amendment). Each violation accrues separately.
• Inflation adjustment. W. Va. Code § 46A-5-106 indexes the $1,000 per-violation penalty for inflation from September 1, 2015. Verify the current adjusted amount before filing; cite the most recent published adjustment.
• 2021 amendments. Effective June 16, 2021, additional amendments added settlement-offer fee-shifting under § 46A-5-104 and authorized fee-shifting against the consumer for claims found to be brought in bad faith and for harassment.
• Forum choice. WVCCPA cases may be filed in WV circuit court (per § 46A-5-107) or, when paired with FDCPA, in U.S. District Court for the Northern or Southern District of West Virginia. Federal court is common for fee-shifting predictability; state court may be preferred for jury makeup or where supplemental WVCCPA claims dominate.
• Fourth Circuit "least sophisticated consumer" standard. United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131 (4th Cir. 1996). The WVCCPA applies a similar consumer-protective standard; Scott-Lewis v. Mountain State Justice, Inc. and Stover v. Fingerhut Direct Marketing, Inc. line of cases inform interpretation.
• Bona fide error defense. Defendants may raise the § 1692k(c) and § 46A-5-101(8) bona fide error defenses. Plaintiff should anticipate by alleging knowing or reckless conduct and pointing to absence of compliance procedures.
• Credit-reporting overlay. If Defendant reported the disputed debt to a CRA without noting the dispute, add a Fair Credit Reporting Act claim under 15 U.S.C. § 1681s-2(b) after submitting an indirect dispute through the CRA.
• WV Division of Financial Institutions / consumer collector licensing. Many out-of-state collection agencies operating in WV are subject to state licensing and registration. Lack of license is itself evidence of unfair conduct.

15. SOURCES AND REFERENCES

• Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p — https://www.law.cornell.edu/uscode/text/15/chapter-41/subchapter-V
• 15 U.S.C. § 1692g (validation of debts) — https://www.law.cornell.edu/uscode/text/15/1692g
• 15 U.S.C. § 1692k (civil liability) — https://www.law.cornell.edu/uscode/text/15/1692k
• W. Va. Code Chapter 46A (West Virginia Consumer Credit and Protection Act) — https://code.wvlegislature.gov/46A/
• W. Va. Code § 46A-2-122 (definitions) — https://code.wvlegislature.gov/46A-2-122/
• W. Va. Code § 46A-2-124 (threats or coercion) — https://code.wvlegislature.gov/46A-2-124/
• W. Va. Code § 46A-2-127 (fraudulent representations) — https://code.wvlegislature.gov/46A-2-127/
• W. Va. Code § 46A-2-128 (unfair or unconscionable means) — https://code.wvlegislature.gov/46A-2-128/
• W. Va. Code § 46A-5-101 (civil liability) — https://code.wvlegislature.gov/46A-5-101/
• W. Va. Code § 46A-5-104 (attorney fees) — https://code.wvlegislature.gov/46A-5-104/
• W. Va. Code § 46A-5-106 (penalty inflation adjustment) — https://code.wvlegislature.gov/46A-5-106/
• W. Va. Code § 46A-5-107 (venue) — https://code.wvlegislature.gov/46A-5-107/
• W. Va. Code § 46A-5-108 (45-day pre-suit notice) — https://code.wvlegislature.gov/46A-5-108/
• Senate Bill 542 (2015) — http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=sb542+intr.htm&yr=2015&sesstype=RS&i=542
• United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131 (4th Cir. 1996)
• CFPB Debt Collection Rule (Regulation F), 12 C.F.R. Part 1006 — https://www.consumerfinance.gov/rules-policy/regulations/1006/
• West Virginia Attorney General Consumer Protection Division — https://ago.wv.gov/consumer-protection-and-antitrust-division
• U.S. District Court, Northern District of West Virginia — https://www.wvnd.uscourts.gov/
• U.S. District Court, Southern District of West Virginia — https://www.wvsd.uscourts.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.