James R. and Jamila J. Fleet v. Webber Springs Owners Assoc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2015 Term

FILED

April 23, 2015

released at 3:00 p.m.

RORY L. PERRY II, CLERK

No. 14-0637 SUPREME COURT OF APPEALS

OF WEST VIRGINIA

JAMES R. FLEET, JAMILA J. FLEET, AND JAMES LAMPLEY,

Defendants Below, Petitioners

V.

WEBBER SPRINGS OWNERS ASSOCIATION, INC.,

Plaintiff Below, Respondent

Appeal from the Circuit Court of Berkeley County

Honorable John C. Yoder, Judge

Civil Action No. 11-C-1091

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED

Submitted: April 7, 2015

Filed: April 23, 2015

Stephen G. Skinner Susan R. Snowden

Anthony J. Delligatti Jason S. Murphy

Skinner Law Firm Martin & Seibert, L.C.

Charles Town, West Virginia Martinsburg, West Virginia

Attorneys for the Petitioners Tammy Mitchell McWilliams

Trump & Trump, L.C.

Christopher J. Regan Martinsburg, West Virginia

Jason E. Causey Attorneys for the Respondent

Bordas & Bordas, PLLC

Wheeling, West Virginia

Anthony J. Majestro

Powell & Majestro, PLLC

Charleston, West Virginia

Attorneys for Amicus Curiae,

West Virginia Association for Justice

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

1. Pursuant to W. Va. Code § 38-16-202(a) (1999) (Repl. Vol. 2011) and

W. Va. Code § 38-16-201 (1999) (Repl. Vol. 2011), which must be read and applied

together, consensual common law liens against real property are valid and enforceable in

West Virginia.

2. Homeowners association assessments that are to be used for improving

and/or maintaining common areas of a planned community, including, but not limited to,

maintaining common roads and common recreational areas within the community, are an

obligation primarily for personal, family, or household purposes, and, therefore, such

assessments are “claims” pursuant to W. Va. Code § 46A-2-122(b) (1996) (Repl. Vol. 2006).

i

Davis, Justice:

This case involves a dispute between a homeowners association that is a West

Virginia Limited Expense Planned Community under W. Va. Code § 36B-1-203 (1994)

(Repl. Vol. 2011) and certain homeowners who have failed to pay their association

assessments. The parties disagree over the ability of a West Virginia Limited Expense

Planned Community to assert a common law lien on real property for unpaid association

assessments, attorney’s fees, and costs. In addition, we are asked to decide whether an

association’s attempts to collect delinquent assessments are governed by the West Virginia

Consumer Credit and Protection Act. The homeowners herein appeal the circuit court’s grant

of summary judgment resolving these issues in favor of the homeowners association. We

conclude that W. Va. Code § 38-16-202(a) (1999) (Repl. Vol. 2011) and W. Va. Code

§ 38-16-201 (1999) (Repl. Vol. 2011) authorize a consensual common law lien against real

property and that the unfair debt collection provisions of the West Virginia Consumer Credit

and Protection Act do apply to a homeowners association’s attempts to collect delinquent

assessments. Accordingly, we affirm, in part; reverse, in part; and remand this case for

further proceedings consistent with this opinion.1

1

This Court acknowledges the appearance of the West Virginia Association for

Justice as Amicus Curiae in support of the homeowners’ position that the West Virginia

Consumer Credit and Protection Act applies in this case. We appreciate the appearance of

Amicus Curiae and will consider its arguments in conjunction with those of the homeowners.

1

I.

FACTUAL AND PROCEDURAL HISTORY

Webber Springs Owners Association, Inc. (“Webber Springs”), plaintiff below

and respondent herein, has elected to be a West Virginia Limited Expense Liability Planned

Community (“LELPC”). In November 2003, the developer and declarant2 of Webber

Springs recorded in the Berkeley County, West Virginia, land records, its declaration3 of

conditions, covenants, restrictions, and easements for the planned community. Because

Webber Springs declared itself to be an LELPC pursuant to W. Va. Code § 36B-1-203,4 it

2

Pursuant to W. Va. Code § 36B-1-103(12) (1998) (Repl. Vol. 2011),

“‘[d]eclarant’ means any person or group of persons acting in concert who: (i) As part of a

common promotional plan, offers to dispose of his or its interest in a unit not previously

disposed of; or (ii) reserves or succeeds to any special declarant right.” The term “unit” is

defined, in part, as “a physical portion of the common interest community designated for

separate ownership or occupancy, the boundaries of which are described pursuant to

subdivision (5), subsection (a), section one hundred five [§ 36B-2-105], article two of this

chapter.” W. Va. Code § 36B-1-103(33).

3

Pursuant to W. Va. Code § 36B-1-103(13), the term “declaration” means

“instruments, however denominated, that create a common interest community, including any

amendments to those instruments.”

4

W. Va. Code § 36B-1-203 (1994) (Repl. Vol. 2011) states:

If a planned community:

(1) Contains no more than twelve units and is not subject

to any development rights; or

(2) Provides, in its declaration, that the annual average

common expense liability of all units restricted to residential

purposes, exclusive of optional user fees and any insurance

premiums paid by the association, may not exceed three hundred

dollars as adjusted pursuant to section 1-114 [§ 36B-1-114]

(continued...)

2

is exempt from all but a few specified provisions of the Uniform Common Interest

Ownership Act, and its assessments5 are capped in accordance with W. Va. Code § 36B-1­

203. The declaration recorded by Webber Springs provides that delinquent unpaid

assessments are both liens against the real estate and the personal obligation of the owner.

The parties do not dispute that Webber Springs has the right to assess and

collect certain fees and homeowners association assessments. Rather, the instant conflict

revolves around Webber Springs ability to place a lien on the real property of Webber

Springs homeowners whose dues are delinquent.

Mr. James Lampley (“Mr. Lampley”) acquired title to real property within

Webber Springs by deed dated February 25, 2005. The deed expressly provides that the

conveyance is subject to “all those reservations, restrictions, easements and other matters of

record . . . .” Similarly, James R. Fleet and Jamila J. Fleet (“the Fleets”) acquired title to real

4

(...continued)

(adjustment of dollar amounts) it is subject only to sections

1-105 [§ 36B-1-105] (separate titles and taxation), 1-106 [36B­

1-106] (applicability of local ordinances, regulations and

building codes) and 1-107 [36B-1-107] (eminent domain),

unless the declaration provides that this entire chapter is

applicable.

5

By the term “assessments,” we refer to “common expense liability,” which

“means the liability for common expenses allocated to each unit” of a planned community.

W. Va. Code § 36B-1-103(6).

3

property within Webber Springs by deed dated May 6, 2005. Their deed expressly provides

that the conveyance is subject to “all rights, ways, utility line easements and restrictive

covenants of record.” In addition, Mr. Lampley and the Fleets signed a document titled

“Planned Unity Development Rider” in which they agreed to promptly pay, when due, all

homeowners’ dues and assessments. Mr. Lampley and the Fleets (collectively, “the

Homeowners”) are the defendants below and petitioners herein.

It is undisputed that Mr. Lampley failed to pay his annual homeowners

assessments for the years 2007 through 2011. Likewise, it is undisputed that the Fleets failed

to pay their annual homeowners assessments for the years 2006 through 2011. As a

consequence, Webber Springs recorded, in the Berkeley County Clerk’s office, “notices of

liens” purporting to create liens for the unpaid assessments, attorney’s fees, and costs, on the

real property owned by the Homeowners.6

On January 3, 2012, Webber Springs filed separate complaints against the

Homeowners. The Homeowners responded by filing separate answers and counterclaims

against Webber Springs asserting violations of the West Virginia Consumer Credit and

6

On February 27, 2008, and January 8, 2010, Webber Springs recorded notices

of liens against the Fleet property. On March 10, 2008, and January 8, 2010, Webber Springs

recorded notices of liens against Mr. Lampley’s property.

4

Protection Act. The Homeowners then filed a combined motion to file an amended answer

to include class action claims7 and to consolidate their cases. The circuit court granted the

Homeowners’ motion to consolidate their cases.

Thereafter, Webber Springs moved for summary judgment on the

counterclaims asserted by the Homeowners. By order entered April 25, 2014, the Circuit

Court of Berkeley County granted partial summary judgment in favor of Webber Springs as

to all of the Homeowners’ counterclaims. This appeal followed.

II.

STANDARD OF REVIEW

The instant matter is before this Court on appeal from an order granting partial

summary judgment in favor of Webber Springs.8 Accordingly, our review is de novo. “A

7

The Homeowners assert that, since 2003, Webber Springs has filed at least one

hundred eleven notices of liens against homeowners in Berkeley County and, in many

instances, has recorded judgments pursuant to the purported liens. By order entered May 1,

2014, the circuit court denied the Homeowners’ motion to certify a class action. The circuit

court explained that its order granting summary judgment in favor of Webber Springs

rendered the motion moot.

8

As a preliminary matter, we note that Webber Springs has complained that the

circuit court’s order granting partial summary judgment in its favor is interlocutory, and,

because the order fails to expressly include language prescribed by Rule 54(b) of the West

Virginia Rules of Civil Procedure, this appeal violates the rule of finality. See Credit

Acceptance Corp. v. Front, 231 W. Va. 518, 522, 745 S.E.2d 556, 560 (2013) (“Typically,

interlocutory orders are not subject to this Court’s appellate jurisdiction.”); Coleman v.

(continued...)

5

circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy,

192 W. Va. 189, 451 S.E.2d 755 (1994). In conducting our de novo review, we are mindful

that “[a] motion for summary judgment should be granted only when it is clear that there is

no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify

the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New

York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Finally, to the extent that our resolution of

this matter requires us to consider statutory provisions, our review is likewise de novo.

“Where the issue on an appeal from the circuit court is clearly a question of law or involving

8

(...continued)

Sopher, 194 W. Va. 90, 94, 459 S.E.2d 367, 371 (1995) (“The usual prerequisite for our

appellate jurisdiction is a final judgment, final in respect that it ends the case.”). See also

Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West

Virginia Rules of Civil Procedure § 54(b), at 1157 (4th ed. 2012) (“As a general matter, to

have Rule 54(b) invoked a trial court must make an express determination that there is no just

reason for delay and make an express direction for entry of judgment.” (footnote omitted)).

Notably, however, this Court has held that “[t]he key to determining if an order is final is not

whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is

included in the order, but is whether the order approximates a final order in its nature and

effect. . . .” Syl. pt. 1, in part, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194

W. Va. 770, 461 S.E.2d 516 (1995) (internal citation omitted). See also Syl. pt. 4, Riffe v.

Armstrong, 197 W. Va. 626, 477 S.E.2d 535 (1996) (“Whether an order dismissing fewer

than all of the parties or fewer than all the claims in a civil action, which does not contain the

express determinations set forth in Rule 54(b) of the West Virginia Rules of Civil Procedure,

was intended to be final and is therefore appealable before the entire action is terminated will

be determined by this Court from all the circumstances and the terms of the order. The better

practice for the circuit courts to follow is to expressly state or negate their intentions with

respect to the finality of such an order within the body of the order.”). In this case, the circuit

court’s partial summary judgment order dismissed all of the Homeowners’ counterclaims

against Webber Springs with prejudice. Accordingly, as to those claims, we find the order

“approximates a final order in its nature and effect. . . .” Syl. pt. 1, in part, State ex rel.

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516.

6

an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995). Applying the foregoing

standards, we proceed to address the issues raised.

III.

DISCUSSION

Two issues are raised in this appeal. First, the Homeowners assert that the

circuit court erred by concluding that Webber Springs had valid common law liens against

the Homeowners’ real property. Second, the Homeowners argue that the circuit court erred

by concluding that a homeowners associations’ attempts to collect assessments are not

subject to the West Virginia Consumer Credit and Protection Act. We address each of these

issues in turn.

A. Validity of Webber Springs’ Liens

The Homeowners argue that the liens asserted by Webber Springs are invalid

and unenforceable pursuant to W. Va. Code § 38-16-202(a). In this regard, the Homeowners

contend that the circuit court erred by failing to interpret W. Va. Code § 38-16-202(a) as

completely barring common law liens against real property, regardless of whether such liens

are consensual. Webber Springs, on the other hand, contends that the Homeowners have

misconstrued the statute. We agree.

7

Prior to examining the relevant statutes, we pause to note that “[t]he primary

object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975).

See also Syl. pt. 1, Pond Creek Pocahontas Co. v. Alexander, 137 W. Va. 864, 74 S.E.2d 590

(1953) (“The basic and cardinal principle, governing the interpretation and application of a

statute, is that the Court should ascertain the intent of the Legislature at the time the statute

was enacted, and in the light of the circumstances prevailing at the time of the enactment.”).

However, this Court’s authority to construe a statute is confined to only those statutes that

contain an ambiguity. “A statute is open to construction only where the language used

requires interpretation because of ambiguity which renders it susceptible of two or more

constructions or of such doubtful or obscure meaning that reasonable minds might be

uncertain or disagree as to its meaning.” Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d

740, 747 (1949). See also Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans

of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and

unambiguous and 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. 2, Pond Creek Pocahontas Co. v. Alexander, 137 W. Va. 864, 74 S.E.2d 590 (“Where

the meaning of a statute is clear and its provisions are unambiguous, this Court will not

undertake to construe and interpret it, but will apply the statute as its exact terms require.”);

Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision

8

which is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.”).

Pursuant to the plain language of W. Va. Code § 38-16-202(a), “[a] common

law lien against real property is invalid and is not recognized or enforceable in this state.”

However, the foregoing statute may not be read in isolation. “Statutes which relate to the

same subject matter should be read and applied together so that the Legislature’s intention

can be gathered from the whole of the enactments.” Syl. pt. 3, Smith v. State Workmen’s

Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361. See also Syl. pt. 5, in part, Fruehauf Corp.

v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975) (“Statutes

which relate to the same persons or things, or to the same class of persons or things, or

statutes which have a common purpose will be regarded in pari materia to assure recognition

and implementation of the legislative intent.”). Thus, W. Va. Code § 38-16-202(a) must be

read and applied along with an accompanying statute contained within Article 16 of Chapter

38 providing that,

[R]egardless of whether such liens may also be

considered to be common law liens, nothing in this article is

intended to affect:

(1) Statutory liens arising under an enactment of the

Legislature;

(2) Equitable liens, constructive liens and other liens that

are imposed by a court of competent jurisdiction; or

(3) Consensual liens now or hereafter recognized under

the common law of this state.

9

W. Va. Code § 38-16-201 (emphasis added). The plain language of W. Va. Code

§ 38-16-201(3) declares that, “[r]egardless of whether such liens may also be considered to

be common law liens,” there is “nothing” in article 16 that is intended to affect “[c]onsensual

liens now or hereafter recognized under the common law of this state.” (Emphasis added).

Reading the proscription of common law liens against real property contained in W. Va.

Code § 38-16-202(a) in light of the plainly worded provision of W. Va. Code § 38-16-201(3),

it is irrefutable that W. Va. Code § 38-16-202(a) was not intended by the Legislature to affect

consensual common law liens.

This conclusion is in line with a recent memorandum decision handed down

by this Court in which we found that a homeowners association’s lien for unpaid assessments

was valid because it was consensual:

With regard to respondent association’s liens, the circuit court

found that they were valid because petitioner’s deeds showed

that he had consented to be bound by the Declaration. Both

deeds state that petitioner’s property interests were granted

“subject to and together with any and all covenants, conditions,

agreements, easements, rights, rights-of-way and/or restrictions

of record and in existence, including those of record in the

aforesaid Clerk’s Office in Deed Book No. 152, at page 862.”

Therefore, this Court finds that the circuit court correctly

determined that the liens were valid consensual liens.

In re Purported Lien or Claim Against DeBlasio, No. 13-1306, 2014 WL 4289334, at *4

10

(W. Va. Aug. 29, 2014) (mem. decision) (footnote omitted) (emphasis added).9

Based upon our analysis of the relevant statutes, we now expressly hold that,

pursuant to W. Va. Code § 38-16-202(a) (1999) (Repl. Vol. 2011) and W. Va. Code

§ 38-16-201 (1999) (Repl. Vol. 2011), which must be read and applied together, consensual

common law liens against real property are valid and enforceable in West Virginia.

In the instant case, the circuit court found that the liens at issue are consensual

common law liens. Utilizing reasoning similar to that expressed by this Court in DeBlasio,

the circuit court concluded that the Homeowners’ deeds conveyed property subject to the

“Declaration of Conditions, Covenants, Restrictions and Easements” recorded by Webber

Springs and, therefore, provided the requisite consent for a valid common law lien.10

9

The memorandum decision in DeBlasio does not identify what type of

common interest community was involved in that case. The Homeowners state in their

petition to this Court, however, that the community that placed the lien challenged in

DeBlasio is, like Webber Springs, a limited expense liability planned community.

10

The declaration contained the following provisions in Article X:

1. Creation of the Lien and Personal Obligation of

Assessments: . . . The annual, special and default assessments,

together with such interest thereon, and costs of collection

thereof as hereinafter provided, shall be a charge on the land and

shall be a continuing lien upon the property against which each

such interest thereon and cost of collection thereof as hereinafter

provided, shall also be the personal obligation of the person who

was the Owner of such property at the time when the assessment

(continued...)

11

The Homeowners contend that the liens at issue are not consensual because the

Homeowners never granted consent through an authenticated document and never signed any

deed. In this regard, the Homeowners point out that the deeds are from, and signed only by,

the grantor of the property. We reject this argument. The deed conveying real property to

the Fleets expressly provided that the conveyance was subject to “all rights, ways, utility line

easements and restrictive covenants of record.” (Emphasis added). Similarly, the deed

10

(...continued)

fell due.

....

9. Effect of Non-Payment of Assessment; The Personal

Obligation of Owner; the Lien; Remedies of the Association: If

the assessments are not paid on the date when due . . ., then such

assessment shall become delinquent and shall, together with

such interest thereon and the cost of collection thereof, as

hereinafter provided, thereupon become a continuing lien on the

property which shall bind such property in the hands of the then

Owner, his heirs, devisees, personal representative, successors

and assigns.

If the assessment is not paid within thirty (30) days after

the delinquency date, the assessment shall bear interest from the

date of delinquency at the maximum rate permitted by law and

the Association may bring an action at law against the Owner

personally obligated to pay the same or to foreclose the lien

against the property, and there shall be added to the amount of

such assessment the costs of preparing, filing and prosecuting

the complaint in such action (including reasonable attorney’s

fees), and in the event a judgment is obtained, such judgment

shall include interest on the assessments as above provided

together with costs of the action (including reasonable attorney’s

fees).

12

conveying property to Mr. Lampley contained a provision expressly making the conveyance

subject to “all those reservations, restrictions, easements and other matters of record in the

aforesaid Clerk’s Office . . . .”11 Thus, the restrictive covenants were incorporated into the

deeds that were accepted by the Homeowners. By accepting the conveyance, the

Homeowners necessarily are bound by the covenants and restrictions contained therein, even

though they did not, themselves, sign the deeds. In this regard, it has been observed that

the burden of a covenant stated in a deed falls upon a grantee

who accepts the deed even though the grantee did not sign the

document. The acceptance of a deed containing a covenant

amounts to the adoption of the signature of the grantor as that of

the grantee. Acceptance of the deed is also deemed to imply a

promise on the part of the grantee to perform the covenants to be

performed on his or her part.

20 Am. Jur. 2d Covenants, Conditions, and Restrictions § 4 (2015) (footnotes omitted). See,

e.g., Syl. pt. 1, in part, Richardson v. Hardman, 97 W. Va. 573, 125 S.E. 442 (1924) (“A

deed poll, after acceptance by the grantee, becomes the mutual act of the parties[.]”).12 See

11

References to where the restrictions and other matters of record are recorded

in the County Deed Books are included in Mr. Lampley’s deed.

12

A deed poll is “a deed executed by the grantor only.” 20 Am. Jur. 2d

Covenants, Conditions, and Restrictions § 4 (2015). See also Brendonwood Common v.

Franklin, 403 N.E.2d 1136, 1141 (Ind. Ct. App. 1980) (“The acceptance of a deed poll (a

deed signed only by the grantor) satisfies the Statute of Frauds and imposes the undertakings

in the deed upon the grantee. Thus, . . . a covenant (to erect a fence) contained in a deed

accepted by the grantee satisfies the Statute of Frauds and ran with the land to bind

subsequent grantees.”); Charles B. Sheppard, Land Use Covenants: A Summary of Aspects

of California Law Regarding Land Use Covenants with Comparisons to the Restatement

(Third) of Property, 37 W. St. U. L. Rev. 27, 33-34 (2009) (“Regardless of whether a deed

is a quitclaim deed, a general warranty deed, or a form of special warranty deed (for example,

(continued...)

13

also Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 481 (7th Cir. 1997) (“By

paying the purchase price and accepting title to their home, the Riters became bound by the

Declaration of Covenants, Conditions, and Restrictions of their homeowners association,

which required the payment of regular and special assessments imposed by the association.”);

Citizens for Covenant Compliance v. Anderson, 12 Cal. 4th 345, 363, 906 P.2d 1314, 1325

(1995) (explaining that “if the restrictions are recorded before the sale, the later purchaser

is deemed to agree to them. The purchase of property knowing of the restrictions evinces the

buyer’s intent to accept their burdens and benefits.”); Johnston v. Michigan Consol. Gas Co.,

337 Mich. 572, 579, 60 N.W.2d 464, 468 (1953) (recognizing that “the acceptance by the

grantee of a deed poll signed and sealed by the grantor containing covenants to be performed

by the grantee binds the latter to the performance of these covenants as effectually as if he

had executed the instrument” (quotations and citation omitted)); Warrender v. Gull Harbor

Yacht Club, Inc., 747 S.E.2d 592, 600 (N.C. Ct. App. 2013) (observing that “restrictive

covenants are contractual in nature, and that acceptance of a valid deed incorporating

covenants implies the existence of a valid contract with binding restrictions” (quotations and

12

(...continued)

the California form of grant deed), under the American system of jurisprudence, any such

deed is likely to be a deed poll instead of being an indenture. A deed poll is subscribed only

by the transferor.” (footnotes omitted)). See generally 23 Am. Jur. 2d Deeds § 3 (2013)

(describing “deed poll” as “a deed executed by the grantor only, the usual form of

commencement being . . . ‘I . . . hereby grant, etc.’” (footnote omitted)).

14

citation omitted)).13 Therefore, we find that the circuit court did not err in concluding that

Webber Springs had a valid common law lien against the Homeowners’ respective properties

for unpaid homeowners association assessments and granting partial summary judgment to

Webber Springs on this issue.

The Homeowners additionally contend that, even if Webber Springs had a valid

consensual lien for unpaid assessments, it would not have a common law lien for attorney’s

fees and costs. Because the Homeowners rely on an application of the West Virginia

Consumer Credit and Protection Act to support this argument, we will address the same

below in our discussion of the applicability of the Consumer Credit and Protection Act.

B. Application of the West Virginia Consumer Credit and Protection Act

The Homeowners argue that the circuit court erred in concluding that the West

Virginia Consumer Credit and Protection Act (“WVCCPA”) does not apply to the debt

collection practices of Webber Springs, and in making the alternative finding that, even if

the WVCCPA did apply, the Homeowners’ counterclaims would be time-barred by the one-

year limitations period provided in W. Va. Code § 46A-5-101 (1996) (Repl. Vol. 2006).

13

Because we reject the Homeowners’ interpretation of the relevant statutes as

prohibiting consensual common law liens on real property, we likewise reject their related

argument, which is based upon their erroneous interpretation of the statute, that Webber

Springs could have a valid lien against real property only if the lien is authorized by statute.

15

Instead, the Homeowners, joined by Amicus Curiae, the West Virginia Association for

Justice, contend that the unfair debt collection provisions of the WVCCPA apply more

broadly than the remainder of the Act and are applicable to the instant matter. In addition,

the Homeowners assert that there is no time limitation applicable to counterclaims to an

action against a consumer under the WVCCPA. See W. Va. Code § 46A-5-102 (1974) (Repl.

Vol. 2006). Accordingly, they assert their counterclams are not time-barred.

Webber Springs, on the other hand, argues that the assessments subject to its

collection efforts do not qualify as a “claim” even under the broad definition utilized in the

unfair debt collection provisions of the WVCCPA. In this regard, Webber Springs

characterizes the assessments as being for community purposes, and not “primarily for

personal, family or household purposes” as the statutory definition of a “claim” requires.

W. Va. Code § 46A-2-122(b) (1996) (Repl. Vol. 2006). Furthermore, Webber Springs

asserts that, because the Homeowners’ counterclaims do not fall within the WVCCPA, they

are barred by the two-year general statute of limitation found in W. Va. Code § 55-2-12

(1959) (Repl. Vol. 2008).

“This Court has recognized that the CCPA is a remedial statute intended to

protect consumers from unfair, illegal and deceptive business practices, and must be liberally

construed to accomplish that purpose.” Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 151,

16

706 S.E.2d 63, 72 (2010). See also Barr v. NCB Mgmt. Servs., Inc., 227 W. Va. 507, 513,

711 S.E.2d 577, 583 (2011) (recognizing “the remedial purposes of the WVCCPA, and the

liberal construction we have historically afforded this Act”).

The unfair debt collection provisions of the WVCCPA are codified at W. Va.

Code §§ 46A-2-122 through 129a. There are certain definitions applicable to only those nine

sections. Thus, for purposes of the unfair debt collection provisions of the WVCCPA, the

term “consumer” is broadly defined to mean “any natural person obligated or allegedly

obligated to pay any debt.” W. Va. Code § 46A-2-122(a) (emphasis added). A “debt

collector” for purposes of the specified sections also is broadly defined to be “any person or

organization engaging directly or indirectly in debt collection. The term includes any person

or organization who sells or offers to sell forms which are, or are represented to be, a

collection system, device or scheme, and are intended or calculated to be used to collect

claims.” W. Va. Code § 46A-2-122(d) (emphasis added). The plain language14 of these

definitional sections certainly is broad enough to include the Homeowners within the

definition of a “consumer” and to include Webber Springs within the definition of the term

“debt collector.” The instant issue, however, appears to turn on the definition of the term

14

“When a statute is clear and unambiguous and 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, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959).

17

“claim”:

“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.

W. Va. Code § 46A-2-122(b) (emphasis added).

Relevant to our determination of whether the assessments sought by Webber

Springs are primarily for personal, family, or household purposes is the asserted reason for

the assessments. The Declaration filed by Webber Springs to establish the Webber Springs

community expressly sets out the purpose of the assessments as follows:

Purpose of Assessments: The assessments levied by the

Association shall be used exclusively for the purpose of road

and street maintenance, promoting the recreation, health, safety,

and welfare of the residents in The Properties and in particular

for the improvement and maintenance of properties, services,

and facilities devoted to this purpose and related to the use and

enjoyment of the Common Properties and homes situated on The

Properties, including, but not limited to, the payment of taxes

and insurance thereon and repair, replacement and additions

thereto, and for the cost of labor, equipment, materials,

management, and supervision thereof.

While this Court has not addressed whether the unfair debt collection

provisions of the WVCCPA apply in the context of homeowners association assessments,

this issue has been addressed by federal courts interpreting the federal Fair Debt Collection

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Practices Act (“FDCPA”). Notably, the FDCPA definition of a “debt” is essentially identical

to the definition of a “claim” set out in W. Va. Code § 46A-2-122(b). Pursuant to the

FDCPA,

[t]he term “debt” means any obligation or alleged

obligation of a consumer to pay money arising out of a

transaction in which the money, property, insurance, or services

which are the subject of the transaction are primarily for

personal, family, or household purposes, whether or not such

obligation has been reduced to judgment.

15 U.S.C. § 1692a(5) (2010) (2012 ed.). Federal courts have found the FDCPA to be

applicable to the collection of association fees. In Newman v. Boehm, Pearlstein & Bright,

Ltd., 119 F.3d 477, 479, the court found that “an assessment owed to a homeowners or

condominium association qualifies as a ‘debt’ under the Fair Debt Collection Practices Act.”

The Newman court reasoned that

[b]y paying the purchase price and accepting title to their home,

the [homeowners] became bound by the Declaration of

Covenants, Conditions, and Restrictions of their homeowners

association, which required the payment of regular and special

assessments imposed by the association. . . . It is therefore clear

that the obligation to pay in these circumstances arose in

connection with the purchase of the homes themselves, even if

the timing and amount of particular assessments was yet to be

determined.

119 F.3d at 481. Finally, the Newman court explained that

there can be little doubt that the subject of those transactions

[the purchase of a home] had a personal, family, or household

purpose. More specifically, however, we also believe that the

assessments themselves satisfy that statutory requirement. To

the extent that the assessments were to be used to improve or

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maintain commonly-owned areas, that purpose, too, qualifies as

“personal, family, or household.” In our view, when a special

assessment is used to repair a common roof, or a monthly

assessment is used to pay for services like snow removal from

a common walkway or landscaping of a common yard, the

assessments are for a household purpose even if more than a

single household benefits.

Id. See also Ladick v. Van Gemert, 146 F.3d 1205, 1205 & 1207 (10th Cir. 1998)

(concluding that “assessment owed to a condominium association qualifies as a ‘debt’ within

the meaning of the Fair Debt Collection Practices Act” based upon express finding that,

“although the assessment at issue here is used to maintain and repair the common area, it

nevertheless has a primarily personal, family, or household purpose.”); Williams v. Edelman,

408 F. Supp. 2d 1261, 1266 (S.D. Fla. 2005) (concluding that condominium assessments are

debt within meaning of FDCPA); Dikun v. Streich, 369 F. Supp. 2d 781, 785 (E.D. Va. 2005)

(observing that “[p]roperty owners association assessments for a plaintiff’s residence are

debts subject to the FDCPA”); Fuller v. Becker & Poliakoff, P.A., 192 F. Supp. 2d 1361,

1368 (M.D. Fla. 2002) (explaining, “[l]ike the condominiums in Newman, the interests that

Plaintiffs bought in the RV park were for personal or family purposes. Also, like the

past-due assessments in Newman, Plaintiffs’ maintenance assessments arose out of the

purchase of the interest in the RV park, and the assessments are used to maintain the park for

the benefit of the park; thus, the assessments are for personal or family purposes. Moreover,

the maintenance assessments are obligations of [sic] arising out [of] the Plaintiffs’

transactions in purchasing the interests in the RV park. Therefore, the Court finds that the

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maintenance assessments that the Association sought to collect . . . are debts subject to the

FDCPA.”); Caron v. Charles E. Maxwell, P.C., 48 F. Supp. 2d 932, 934 (D. Ariz. 1999)

(adopting Newman reasoning that homeowners’ “‘assessments are collected in order to

improve and maintain commonly-owned areas used by each unit owner. The [homeowners’]

assessments thereby directly benefit each household in the development. As a result, the

assessments have a ‘personal, family, or household purpose.’” and concluding that, “[l]ike

the other courts that have followed the reasoning set forth in Newman, this Court is

persuaded by the reasoning of the Seventh Circuit” (quoting Newman, 119 F.3d at 481–82)

(emphasis omitted)); Garner v. Kansas, No. CIV. A. 98-1274, 1999 WL 262100, at *2 (E.D.

La. Apr. 30, 1999) (“Upon review of the FDCPA and the case law discussing this issue, the

Court concludes that condominium fees do constitute ‘debts’ under the FDCPA.”); Taylor

v. Mount Oak Manor Homeowners Ass’n, Inc., 11 F. Supp. 2d 753, 754 (D. Md. 1998)

(concluding that homeowners association’s assessments are “debts” under the FDCPA);

Thies v. Law Offices of William A. Wyman, 969 F. Supp. 604, 608 (S.D. Cal. 1997) (applying

Newman rationale and concluding “homeowner association fees for maintenance and

improvement of common areas within a housing development are a service primarily for

personal, family, and household purposes”). But see Nance v. Petty, Livingston, Dawson &

Devening, 881 F. Supp. 223, 225 (W.D. Va. 1994) (citing 15 U.S.C. § 1692a(5) and finding

assessment by subdivision for maintenance of private road was not “‘primarily for personal,

family, or household’” purposes (quoting 15 U.S.C. § 1692a(5))).

21

We agree with the reasoning of the federal courts interpreting a nearly identical

statute. Therefore, this Court holds that homeowners association assessments that are to be

used for improving and/or maintaining common areas of a planned community, including,

but not limited to, maintaining common roads and common recreational areas within the

community, are an obligation primarily for personal, family, or household purposes, and,

therefore, such assessments are “claims” pursuant to W. Va. Code § 46A-2-122(b) (1996)

(Repl. Vol. 2006). It follows, then, that because the Homeowners are consumers, because

Webber Springs is a debt collector, and because the assessments are claims, the unfair debt

collection provisions of the WVCCPA do apply to this matter. Thus, the circuit court erred

in granting partial summary judgment in favor of Webber Springs based upon its erroneous

conclusion that the WVCCPA was not applicable. Likewise, the circuit court erred in finding

that the Homeowners’ WVCCPA counterclaims are barred by the statute of limitations. The

counterclaims of the Homeowners are not time-barred. See W. Va. Code § 46A-5-102

(“Rights granted by this chapter may be asserted as a defense, setoff or counterclaim to an

action against a consumer without regard to any limitation of actions.” (emphasis added)).

Because the circuit court ruled that the WVCCPA did not apply, that court has

made no rulings purporting to resolve the Homeowners’ specific claims under the WVCCPA,

including their claim that Webber Springs is prohibited from collecting attorney’s fees and

costs. Accordingly, we decline to address the Homeowners’ contention that Webber Springs

22

is prohibited from collecting attorney’s fees and costs as such a decision by this Court would

be advisory. “[T]his Court is not authorized to issue advisory opinions[.]” State ex rel. City

of Charleston v. Coghill, 156 W. Va. 877, 891, 207 S.E.2d 113, 122 (1973) (Haden, J.,

dissenting).

IV.

CONCLUSION

For the reasons stated in the body of this opinion, we conclude that W. Va.

Code § 38-16-202(a) (1999) (Repl. Vol. 2011) and W. Va. Code § 38-16-201 (1999) (Repl.

Vol. 2011) authorize a consensual common law lien against real property and that the unfair

debt collection provisions of the WVCCPA do apply to a homeowners association’s attempts

to collect delinquent assessments. Accordingly, we affirm, in part; reverse, in part; and

remand this case for further proceedings consistent with this opinion.

Affirmed, in part; Reversed, in part; and Remanded.

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