West Virginia Consumer Credit and Protection Act §§ 46A-2-127(d) & 46A-2-128 Impose Strict Liability (No Intent Element) for False Representations and Unauthorized Interest Collection

I. Introduction

Case: Gary Tederick v. Loancare, LLC (Fourth Circuit, Feb. 23, 2026).
Parties: Gary and Lisa Tederick (borrowers; putative class representatives) v. LoanCare, LLC (mortgage loan sub-servicer).
Statutes: West Virginia Consumer Credit and Protection Act (the “Act”), W. Va. Code §§ 46A-2-127(d) and 46A-2-128 (collectively, the “at-issue statutory provisions”).
Core dispute: The Tedericks alleged that LoanCare misapplied prepayments (applying them after monthly payments rather than reducing principal first), causing excess interest to be charged and collected. They pursued Act claims contending that the resulting statements/charges constituted (i) “false representation[s]” about the “amount of a claim” under § 46A-2-127(d) and (ii) collection/attempted collection of interest not “expressly authorized” under § 46A-2-128(d).

Key legal issue on appeal: Whether §§ 46A-2-127(d) and 46A-2-128 require proof that the debt collector intended to violate the Act (i.e., acted intentionally), or whether the provisions impose liability without regard to intent (strict liability).

Procedural posture: The district court granted summary judgment to LoanCare, characterizing the matter as a “billing dispute” and holding the Act claim failed absent evidence LoanCare “meant to get it wrong.” The Fourth Circuit vacated and remanded.

II. Summary of the Opinion

The Fourth Circuit held that, under West Virginia law, the at-issue statutory provisions do not include an intent-to-violate element. The panel concluded these provisions operate as strict liability rules: a plaintiff need only prove the prohibited event (e.g., a “false representation” of the amount of a claim; collection/attempted collection of unauthorized interest), not that the servicer acted with intent.

The court further declined to affirm on LoanCare’s proposed alternative grounds—(1) that LoanCare correctly applied the prepayments and thus collected no excess interest, and (2) that LoanCare was protected by the Act’s “bona fide error defense,” W. Va. Code § 46A-5-101(8)—because those grounds were not “apparent” from the record and were not decided below. The judgment was vacated and remanded for further proceedings.

III. Analysis

A. Precedents Cited

1. Federal summary-judgment and appellate-review framework

  • Palmer v. Liberty Univ., 72 F.4th 52 (4th Cir. 2023) and Bright v. Coastal Lumber Co., 962 F.2d 365 (4th Cir. 1992): cited for de novo review and the requirement to view facts in the nonmovant’s favor. Their role is methodological—reinforcing that the district court could not resolve disputed factual issues (like payment application) against the borrowers on summary judgment.
  • FDIC v. Cashion, 720 F.3d 169 (4th Cir. 2013): supplies the Rule 56 articulation that summary judgment is appropriate only if no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law.
  • Cutter v. Wilkinson, 544 U.S. 709 (2005): invoked for the “court of review, not of first view” principle. This underwrote the refusal to decide alternative merits/defense issues not adjudicated by the district court.
  • Scott v. United States, 328 F.3d 132 (4th Cir. 2003), paired with United States v. Smith, 395 F.3d 516 (4th Cir. 2005): frames the appellate power to affirm on “any ground appearing in the record,” while emphasizing the ground must be “apparent” (i.e., obvious and record-supported). The panel used this to reject LoanCare’s proposed affirmance theories.

2. Erie/statutory-interpretation methodology (West Virginia law as the rule of decision)

  • Young v. Equinor USA Onshore Props., Inc., 982 F.3d 201 (4th Cir. 2020) and Whitmire v. S. Farm Bureau Life Ins. Co., 52 F.4th 153 (4th Cir. 2022): confirm the panel’s duty to apply settled West Virginia law and predict (where necessary) how the state high court would rule, including using West Virginia’s interpretive canons.
  • Smith v. States Workmen's Comp. Comm'r, 219 S.E.2d 361 (W. Va. 1975) and Cline v. Mirandy, 765 S.E.2d 583 (W. Va. 2014): cited for the “primary object” of statutory construction—ascertaining legislative intent beginning with statutory text.
  • Meadows v. Wal-Mart Stores, Inc., 530 S.E.2d 676 (W. Va. 1999): provides the canon that effect should be given to every word and clause—central to rejecting the district court’s approach of effectively rewriting § 46A-2-127(d) (“false representation”) into a more demanding “fraudulent act” intent test.
  • Lehman v. United Bank, Inc., 719 S.E.2d 370 (W. Va. 2011), Crockett v. Andrews, 172 S.E.2d 384 (W. Va. 1970), State v. Jarvis, 487 S.E.2d 293 (W. Va. 1997), and State v. Epperly, 65 S.E.2d 488 (W. Va. 1951): collectively reinforce plain-meaning control when text is unambiguous.
  • Ancient Energy, Ltd., v. Ferguson, 806 S.E.2d 154 (W. Va. 2017): supplies the rule that when plain meaning answers the interpretive question, further inquiry is foreclosed—used to stop the district court’s importation of an intent requirement.
  • Farley v. Buckalew, 414 S.E.2d 454 (W. Va. 1992) and Davis Mem'l Hosp. v. W. Va. State Tax Cmm'r, 671 S.E.2d 682 (W. Va. 2008): used to explain when and how ambiguity permits construction to discern legislative intent (which, the panel concluded, still favored consumers).
  • State v. Richards, 526 S.E.2d 539 (W. Va. 1999) and State v. Gen. Daniel Morgan Post No. 548 V.F.W., 107 S.E.2d 353 (W. Va. 1959): stand for the prohibition against courts rewriting statutes “under the guise of interpretation.”

3. “Any means any” and consumer-protection breadth

  • Thomas v. Firestone Tire & Rubber Co., 266 S.E.2d 905 (W. Va. 1980): used in two distinct ways. First, the panel relied on its “any” canon: “the word ‘any,’ when used in a statute, should be construed to mean any.” Second, the panel criticized Rice/Perrine for lifting language about “unscrupulous collection practices” from Thomas to justify an intent requirement that the Act’s text does not contain.
  • Shaffer v. Fort Henry Surgical Assocs., 599 S.E.2d 876 (W. Va. 2004) and Williams v. W. Va. Dep't of Motor Vehicles, 419 S.E.2d 474 (W. Va. 1992): reinforce the expansive effect of “any” in statutory text.
  • Romero v. Barr, 937 F.3d 282 (4th Cir. 2019): cited for the broad reading of “any” as “indiscriminately of whatever kind,” supporting coverage of mistakes as well as intentional conduct.

4. District court decisions the Fourth Circuit found unpersuasive on intent

  • Rice v. Green Tree Servicing, LLC, 2015 WL 5443708 (N.D.W. Va. Sept. 15, 2015) and Perrine v. Branch Banking & Trust Co., 2018 WL 11372226 (N.D. W. Va. Sept. 25, 2018): LoanCare used these to argue the Act requires intentional deception/unfairness for §§ 127/128 claims. The Fourth Circuit rejected that “extra-textual” gloss insofar as it implies an across-the-board intent element.
  • Bourne v. Mapother & Mapother, P.S.C., 998 F. Supp. 2d 495 (S.D. W. Va. 2014): the district court relied on a statement that the Act’s purpose is “not to impose harsh civil penalties for simple mistakes.” The Fourth Circuit distinguished Bourne because it involved § 46A-2-125(d), a provision that expressly includes “intent to annoy, abuse, oppress or threaten,” demonstrating that the Legislature knows how to require intent when it chooses.

5. West Virginia authorities prohibiting judicial insertion of missing elements

  • Brooke B. v. Ray C., 738 S.E.2d 21 (W. Va. 2013): cited for the rule against “arbitrarily read[ing] into a statute that which it does not say.”
  • Neidig v. Valley Health Sys., 919 S.E.2d 52 (W. Va. 2025): cited for the admonition not to “read a word and punctuation into a statute that are not there,” used to invalidate the district court’s importation of an intent element.

6. Remedial purpose of the Act

  • White v. Wyeth, 705 S.E.2d 828 (W. Va. 2010): used to describe the Act’s origins as a hybrid consumer-protection enactment.
  • Harper v. Jackson Hewitt, Inc., 706 S.E.2d 63 (W. Va. 2010): cited for the key proposition that the Act is remedial and must be liberally construed to protect consumers from unfair, illegal, and deceptive practices.
  • State ex rel. McGraw v. Scott Runyon Pontiac-Buick, Inc., 461 S.E.2d 516 (W. Va. 1995): cited for the idea that the Act provides relief where traditional common-law causes might be difficult to prove.

7. Common-law fraud analogy rejected

  • Horton v. Prof. Bureau of Collections of Md., Inc., 794 S.E.2d 395 (W. Va. 2016): cited to show why importing common-law fraud elements into consumer-protection statutes is “problematic”; the Act can reach conduct that does not satisfy traditional fraud elements (including intent).

8. Waiver/abandonment and party-presentation discipline

  • Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369 (4th Cir. 2012), Mironescu v. Costner, 480 F.3d 664 (4th Cir. 2007), and Stokes v. Stirling, 64 F.4th 131 (4th Cir. 2023): used to treat LoanCare’s decision not to defend the district court’s “intent element” ruling as abandonment of that position on appeal.
  • Moreno v. Bolshom, 151 F.4th 543 (4th Cir. 2025) and Roberts v. Carter-Young, Inc., 131 F.4th 241 (4th Cir. 2025): emphasize the appellate court’s duty to “get things right” in interpreting the law, notwithstanding shifting party arguments.

B. Legal Reasoning

1. The holding: §§ 46A-2-127(d) and 46A-2-128 contain no intent element

The court’s reasoning is text-first and comparative: the at-issue provisions prohibit specified conduct without stating any mental state requirement. The panel contrasted that silence with other Act provisions that expressly require intent (e.g., § 46A-2-125(b), (d); § 46A-4-108; § 46A-4-109(5)(c); § 46A-6-102(7)(I), (J), (M); § 46A-6-110(a)(1); § 46A-6G-2). This structural comparison supported a straightforward inference: where the Legislature intended to require intent, it said so; where it did not, courts may not add it.

2. Section 46A-2-127(d): “Any false representation” sweeps broadly

The panel rejected the district court’s pivot from the statutory term “false representation” to a dictionary-derived notion of a “fraudulent act” requiring bad faith. Instead, the statute itself defines the operative prohibition through a broad rule plus an illustrative list (“Without limiting the general application of the foregoing…”). Subsection (d) specifically deems it a violation to make “Any false representation or implication of the character, extent or amount of a claim….”

The court treated “any” as expansive and “false” as capable of being false by “intent, accident, or mistake” (reinforced by the opinion’s citation to Black’s Law Dictionary). That is the essence of strict liability: the representation’s falsity—and its relation to debt collection—is the focal point, not the collector’s subjective mental state.

3. Section 46A-2-128(d): Unauthorized interest collection is prohibited without regard to intent

Section 46A-2-128 bars “unfair or unconscionable means,” and subsection (d) deems it a violation to collect or attempt to collect “any interest or other charge” unless “expressly authorized” by the agreement and by statute or regulation. The panel read this as a consumer-protective “yellow light” rule: if the interest is not expressly authorized, collecting it is prohibited—whether the collector was careful or careless.

4. Remedial purpose confirms the text-based conclusion

Even assuming ambiguity, the court held that the Act’s history and West Virginia precedent demand liberal construction in favor of consumers. Adding an intent requirement would undermine the Act’s function of providing relief where common-law fraud standards would be difficult to meet, and would invite technical evasion by “devious sellers” and collectors—precisely what the Act’s broad language was designed to prevent.

5. The court’s refusal to affirm on alternative grounds

LoanCare urged affirmance because (i) it properly applied prepayments and thus charged no excess interest, and (ii) it could invoke W. Va. Code § 46A-5-101(8), the “bona fide error defense.” The panel declined both:

  • Payment application correctness: Not decided below; the district court expressly said it “need not conclude” whether LoanCare properly applied prepayments, and even suggested it “may have misapplied” them. The record was not “apparent” enough for appellate resolution.
  • “Bona fide error defense”: Raised late (in reply below), not the basis of the summary-judgment motion, and not analyzed in the Memorandum Opinion. As an affirmative defense requiring proof (including “procedures reasonably adapted to avoid” the violation), it was not appropriate for first-instance decision on appeal.

C. Impact

1. Substantive impact on WVCCPA debt-collection litigation

The decision establishes (within the Fourth Circuit’s West Virginia-law prediction) that claims under W. Va. Code § 46A-2-127(d) and § 46A-2-128(d) are not defeated by a defendant’s characterization of the conduct as a mere “billing dispute” or “simple mistake.” Plaintiffs need not prove intent; defendants must instead focus on whether the representation/charge was false/unauthorized, or invoke defenses expressly provided by the Act (such as § 46A-5-101(8)) with an evidentiary showing.

2. Compliance impact for mortgage servicers and debt collectors

Servicers operating in West Virginia (or servicing West Virginia consumers) should expect heightened exposure for misstatements of amounts due and for interest/fee assessments not “expressly authorized,” even if caused by system configuration, contract-interpretation errors, or legacy servicing transfers. Operationally, this pushes risk management toward (i) clearer allocation rules for partial payments and prepayments, (ii) robust statement-review controls, and (iii) documented procedures aimed at preventing and detecting such errors (relevant to § 46A-5-101(8)).

3. Procedural impact: limits on appellate “affirm on any ground”

The opinion reinforces that “affirm on any ground appearing in the record” does not authorize appellate factfinding or first-instance merits/defense determinations. Where the district court has not resolved key factual disputes or has not considered an affirmative defense, the Fourth Circuit signaled a strong preference for remand.

IV. Complex Concepts Simplified

  • Strict liability (in this context): Liability turns on whether the prohibited act occurred (e.g., collecting unauthorized interest; falsely stating the amount of a debt), not on whether the collector intended to violate the law.
  • “Any” in statutory text: The court treated “any” as intentionally broad—capturing all instances within the described category, not merely intentional or egregious ones.
  • “Erie guess”: Because the Supreme Court of Appeals of West Virginia had not decided the precise “intent element” question, the federal court predicted how that court would rule, using West Virginia interpretive rules and the Act’s remedial purpose.
  • “Bona fide error defense” (W. Va. Code § 46A-5-101(8)): A statutory safe harbor that can block liability if the defendant proves (by a preponderance) the violation was unintentional or a bona fide factual error, and that it maintained procedures reasonably adapted to avoid such violations. It is not automatic; it requires evidence.
  • “Court of review, not of first view”: Appellate courts generally do not decide issues the trial court did not address, especially where factual development or credibility judgments are required.

V. Conclusion

Gary Tederick v. Loancare, LLC vacates a defense-friendly summary judgment and announces a clear interpretive rule for the West Virginia Consumer Credit and Protection Act’s debt-collection provisions at issue: W. Va. Code §§ 46A-2-127(d) and 46A-2-128 impose strict liability and do not require plaintiffs to prove that a debt collector intended to violate the Act. The opinion repudiates judicial insertion of extra-textual intent elements, underscores the Act’s remedial consumer-protection purpose, and channels disputes about mistakes toward statutory defenses (like § 46A-5-101(8))—to be proven with evidence and decided, in the first instance, by the district court on remand.