State of West Virginia ex rel. Darrell v. McGraw, Jr.

Summary

The Supreme Court of Appeals of West Virginia reversed the Circuit Court of Kanawha County's dismissal of Attorney General Darrell McGraw's Consumer Credit and Protection Act claims against GMAC and Bank One, holding that W.Va.Code 46A-7-111(1) authorizes the Attorney General, after demand, to sue a creditor or assignee for making or collecting charges in excess of those permitted by the Act and to obtain a court-mandated refund for consumers, regardless of any wrongdoing by the assignee itself. Because an assignee of a consumer-transaction note takes it subject to all claims and defenses arising from the sale (W.Va.Code 46A-2-102; One Valley Bank v. Bolen), the seller's warranty fraud could be pursued against the financing defendants; the assignee's own fault becomes relevant only when a civil penalty is sought. The Court also held the dismissal order immediately appealable under the Durm/Sisson 'approximates a final order in its nature and effect' doctrine, which it extended from summary judgment to Rule 12(b)(6) dismissals, and reviewed the dismissal de novo.